by Don Samuel
Anybody who has tried to research the question, “What does it mean when a statute says that the government must prove that the defendant acted willfully?” knows that virtually every appellate decision starts with the observation, “The term ‘willfully’ has many meanings, and its construction is often influenced by its context.” (Imagine, at this point, a string of citations a mile long). The problem is that figuring out which of “many meanings” applies for any particular statute is a crap shoot. And announcing that the meaning is “influenced by its context” provides no guidance at all.
In the previous post about Rehaif, we focused on when is the government required to prove that the defendant had knowledge about a specific element of the offense. In this reflection on Rehaif the question is broader: When is the government required to prove that the defendant knew that he was engaged in criminal conduct, regardless of how many elements of the offense he knew about? That is often how the courts distinguish between the “knowledge” aspect of mens rea and the “willfulness” aspect. One acts with knowledge when he or she acts with knowledge about certain facts (though, as pointed out last week, it may well be that one of the elements that must be known is the existence of a regulation or a license requirement). One acts willfully, on the other hand, when one acts with the purpose to violate the criminal law, or at least with the knowledge that jail may be the consequence of engaging in the particular conduct.
Not so fast, though. These may be law school distinctions but given that we are cautioned that “willfully” has many meanings we should hesitate to ascribe just one meaning. Consider, for example, some of these criminal code sections (i.e., the “context” which might influence the meaning):
18 U.S.C. § 1735(a) Whoever-- (1) willfully uses the mails for the mailing … of any sexually oriented advertisement in violation of section 3010 of title 39, or willfully violates any regulations of the Board of Governors issued under such section [is guilty of a felony].
18 U.S.C. § 1520(b) Whoever knowingly and willfully violates subsection (a)(1), or any rule or regulation promulgated by the Securities and Exchange Commission under subsection (a)(2), shall be fined under this title, imprisoned not more than 10 years.
29 U.S.C. § 666(e): Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations [is guilty of criminal OSHA violation).
18 U.S.C. § 1001: Whoever shall knowingly and willfully … make any false or fraudulent statement [is guilty of a felony].
26 U.S.C. § 7201: Any person who willfully attempts … to evade or defeat any tax [is guilty of tax evasion].
15 U.S.C. § 1990c (repealed): “[a]ny person who knowingly and willfully commits any act or causes to be done any act that violates any provision of this subchapter [is guilty of odometer fraud offense].
47 U.S.C. § 501: Any person who willfully and knowingly does or causes or suffers to be done any act, matter, or thing, in this chapter prohibited or declared to be unlawful [is guilty of violating licensing provisions relating to radio transmissions].
With regard to each of these statutes, does the term “willfully” mean that the defendant purposely must violate the criminal statute? Is it sufficient if the defendant knowingly engages in certain conduct, regardless of whether he or she knows the criminal law consequences? How about if the defendant knows he is violating an underlying regulatory order or licensing requirement, but does not know that it is a crime to violate the order or the licensing requirement? And when the statute requires that the defendant “knowingly and willfully” do something that the law forbids, what added aspect of the defendant’s state of mind is required to be shown by these seemingly separate (or are they redundant?) requirements. Similarly, if the defendant must “knowingly and willfully” violate the law, can the defendant be innocent if he acts knowingly but not willfully? Or willfully but not knowingly? In the first statute cited above, 18 USC § 1735, is there a difference between “willfully using the mails” and “willfully violating a regulation” as far as the required proof of the defendant’s knowledge of the criminality of the conduct? With regard to § 1001, is there any requirement that the defendant know about the criminal nature of the conduct? So many questions; so few answers.
The decisions from the Supreme Court and the federal appellate courts just accentuate the muddle.
One of the significant cases to discuss this topic was Cheek v. United States, 498 U.S. 192 (1991). The Supreme Court held that 26 U.S.C. § 7201, requires not just that the defendant fail to report income, but that he knew he was required to report his income and failed to do so, knowing that he was violating the criminal law by failing to do so. The Court held that this level of proof was necessary because of the complexity of the tax code and to avoid criminal penalties being imposed on unsuspecting citizens. It is worth noting that Mr. Cheek, an airline pilot, did not report his income, because he thought that his paycheck was the “barter” that he received in exchange for his time in the cockpit and a simple exchange (or sale) of assets -- including his time -- did not qualify as income. Not exactly the most complex aspect of the criminal code.
The Supreme Court also held that the then-existing anti-structuring law also required this heightened proof of mens rea in Ratzlaf v. United States, 510 U.S.135 (1994). Again, the Court held that the complexity of the anti-structuring law required this level of proof. Congress responded almost immediately by deleting “willfully” from the anti-structuring statute. 31 U.S.C. § 5324(d).
The next step in the “willfulness” jurisprudence in the Supreme Court occurred in Bryan v. United States, 524 U.S. 184 (1998). Bryan held that the “willfulness” requirement in the firearm licensing statute (18 U.S.C. § 922(a)(1)(A) and § 924(a)(1)(D)) did not require proof that the defendant was either aware of the licensing statute or intentionally violated a known legal duty. Rather, all that is required is proof that the defendant knew in a general sense that his or her conduct was unlawful. The Supreme Court approved the instruction given by the District Court that tracked the Eleventh Circuit Pattern Instruction:
A person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law. Now, the person need not be aware of the specific law or rule that this conduct may be violating. But he must act with the intent to do something that the law forbids.
Justice Scalia expressed outrage: He queried whether a defendant could be found guilty of willfully violating the firearm licensing requirement (selling a firearm without having a license to do so), if the defendant had no idea about the licensing requirement that applied to him, but was aware that he had double-parked in a no-parking zone when he sold the firearm, or violated the speed limit law when he rushed to the scene of the planned sale of the firearms. Was that a sufficient “intent to do something the law forbids” that would support a conviction for willfully violating the firearm licensing statute? Id. at 202.
So much for SCOTUS’s contribution to the definition of “willfulness” in criminal statutes. Next stop, the federal appellate courts. Those courts have formulated a number of tests to determine the level of criminal culpability that should be required in order to be convicted of willfully committing the offense. Here are some of the tests, assuming the statute is not clear on its face:
Of course, these are not easy tests to apply. For example, is the entire tax code complicated? Is it complicated to understand that if you receive a W-2 from your employer, you have income that should be reported and that your time in the cockpit is not “traded” for your weekly salary (like selling your old refrigerator for $50 does not result in $50 income on your tax return)? In other words, is a statute either all or nothing? Or can certain aspects of a criminal law be complicated, while other aspects not?
And what if a case involves conduct that is dangerous – exporting military equipment to China, for example – but also involves a complex statutory scheme, two criteria that point in opposite directions. Again, the recent Xenia Man case exemplifies this problem. See also United States v. Adames, 878 F.2d 1374, 1377 (11th Cir. 1989).
How do we reconcile the cases that involve statutes that require proof of “willful” violation, but uphold a conviction if the government proves only that the defendant knew what he was doing, regardless of whether he had any knowledge whatsoever about the illegality of his conduct? The Eleventh Circuit held that the term “willfully” in 29 U.S.C. § 186(d) (Taft-Hartley Act) only requires proof of general intent. United States v. Phillips,19 F.3d 1565 (11th Cir. 1994). This law proscribes certain improper payments from an employer to a representative of an employee, or a union. The court held that the “willfully” element of the offense only requires proof that the defendant was aware that a payment was being made. The government is not required to prove that the defendants were aware of the specific provisions in the Taft-Hartley Act which proscribe these payments.
Rehaif, having overruled all twelve Circuits when it insisted that the government prove the defendant knows his immigration status, has proven that the mens rea requirements are not easy to divine, and certainly not by simply reading the statute.
So, the answer to the question, “What does ‘willfully’ mean in a criminal statute?” the most cogent response is, “The term ‘willfully’ has many meanings.”
by: GUEST BLOGGER: LAWRENCE ZIMMERMAN
Effective in 2006, the Adam Walsh Child Protection and Safety Act mandates that states meet minimum legal requirements in keeping a sex offender registry. The registry under federal law is known by the acronym SORNA. Dealing with a case that involves registration lawyers must familiarize themselves with both state and federal laws.
There is now, throughout the United States, a patchwork of sex offender registrations that differ from state to state—these state regulations rarely maintain uniformity. While a person may not be required to register in one state, the person may be required to register in a bordering state. Even if that person is removed from one state’s registry, the removal in one state does not mean that the person is exempt from registration in another state when he or she visits. How should attorneys handle these issues?
A practical example highlights the problem. Your client moves to Miami for a new job, but his permanent residence is in Massachusetts. When it comes to sex offender laws, there is a large gulf between Massachusetts and Florida, much like the gulf between their professional sports franchises (Perhaps there is a correlation between winning championships and having reasonable laws, but that is a study for another day). Your client decides it would be nice to meet a woman or a child, so he hops a flight to Atlanta and finds a hotel. At the hotel, client is online looking at profiles and voila, he meets the girl of his dreams. The girl tells your client she is eighteen but then says she is 13—the ostensible girl is, in fact, a police officer.
Client is indicted for a Georgia sex offense and wants to resolve the case. Georgia’s First Offender Act is not available for most sex offenses. You can find a statute to enter a plea but, as part of negotiations, the prosecutor insists on registration as a condition of probation, but not necessarily because the charge mandates it. You agree to Cruelty to Children in the Second Degree (with no sex elements), but it is a five-year probated sentence and as a condition your client must register for the length of probation.
Here is where things get tricky. If your client returns to Florida – even after completing first offender probation – Florida sex offender registration is mandatory, possibly for life. This is true notwithstanding that Georgia would not require registration upon the client’s completion of his first offender sentence. The problem arises because Florida law considers a withheld adjudication, specifically in sex cases, a conviction. See Fla. Stat. § 943.0435 (1) (b). In Georgia, a plea under the First Offender Act, O.C.G.A. § 42-8-61, withholds adjudication. The Florida definition of who registers is a broad one creating a problem for this client who entered a plea to even a nonsexual offense. Setting aside the fact that Florida does not recognize withheld adjudications, Florida will nevertheless require registration based on the mere fact that the client previously registered as a condition of probation in this state or another one. See Fla. Stat § 943.0435 (h) (1) (a) (II) (b). Getting off Florida’s registry is very difficult, so we will need a guest Florida blogger to discuss that issue, but it will be a short blog.
After client completes his Georgia probation and living in Florida does not work out, he relocates to New England because he prefers cold winters, reasonable laws, and winning professional sports teams. Massachusetts is a dream state for someone who was previously on a registry with a withheld adjudication. Here is why: Massachusetts defines a “sex offender” as someone who has been convicted of a sex offense or “who has been adjudicated as a youthful offender or as a delinquent juvenile by reason of a sex offense or a person released from incarceration or parole or probation supervision or custody with the department of youth services for such a conviction or adjudication or a person who has been adjudicated a sexually dangerous…” G.L. c. §178 C.
What is the material difference here? Unlike Florida, Massachusetts does not have a catchall provision regarding prior sex offender designations or registrations, and an adjudication withheld is not a conviction. Massachusetts mandates only those who have been adjudicated of a crime to register. Great news, right? Sure, unless you want to travel outside of Massachusetts for the weekend, or for a work trip.
Take the case of William Bridges. Bridges moved from Florida to Virginia after a sex battery plea, and at some point, he failed to update his address with the sex offender board. United States v. Bridges, 741 F.3d 464 (2014). In 2001, Bridges in Florida entered a nolo contendre (withheld adjudication) plea to a sex offense and received one-year probation. Id. at 465. Years later while living in Virginia as a registered offender, the federal government indicted him for failing to update his address. Id.
Bridges claimed his plea was not considered a conviction, but SORNA does not recognize withheld adjudication. In Bridges the court referenced the federal registry stating, “[t]he federal registration requirement, in other words, cannot be avoided simply because a jurisdiction “has a procedure under which the convictions of sex offenders in certain categories ... are referred to as something other than ‘convictions.’” Bridges at 468 (quoting 73 Fed. Reg. at 38,050). Where does that leave us? Bridges does not squarely address our issue if a client enters a plea under First Offender and registers as a probation condition. Yet this case is another example of how this area of law is rife with pitfalls and future collateral consequences. These different issues will arise on a case-by-case and state-by-state basis and interplay with federal law.
To get clarity under federal law prior to advising a client to enter a plea under state law, one must review 34 U.S.C. § 20911, a federal statute that covers the types of crimes requiring sex offender registration under federal law. A good discussion about the registry, as it pertains to Georgia’s First Offender act, is authored by our friend, Hon. Alan J. Baverman, whose report and recommendation provides a comprehensive analysis. See United States v. Grant, 2018 WL 4516008. However, unlike in Grant, a Georgia defendant may no longer avail oneself of the First Offender Act for a child molestation charge.
In Georgia, most sex offenses do not qualify for first offender; the disqualifying offenses are enumerated in O.C.G.A. § 42-8-60. The best advice is to first find a criminal offense (for example, cruelty to children) which allows for first offender disposition. Then, if the prosecutor insists on registration, agree to it only as a last resort to close the deal. Upon successful completion of probation, there is no conviction and in Georgia no registry requirement. It is especially important to ask the prosecutor to dismiss the indictment and draw a separate accusation with elements not alleging any sexual component. Even with these safeguards, you will still need to apprise your client that the mere fact of Georgia registration can pose a future problem depending on where a client chooses to reside—now or twenty years from now. Most prosecutors are unaware of the federal registration requirements, or potential collateral consequences in other states, so you may be able to convince them that lifetime registration was not the intent of the parties. Therefore, it is possible once you show prosecutors the law, or this blog article, a better negotiation can be achieved.
by: Don Samuel
With all its wisdom (or not), this Blog is copyrightable. The OCGA, however, with all its annotations (wise and unwise) is not copyrightable.
Georgia v. Public Resource.Org
by: Don Samuel
In the introductory post about Rehaif, we reviewed some of the basic problems that the courts face in deciding what the government must prove about a defendant’s knowledge. What must the defendant know about the facts that are identified as the essential elements of the offense? And when focusing on whether the defendant harbored a criminal state of mind, what does Congress mean when it says that the defendant must act “willfully”? In this post – part 2 of 3 – the focus is entirely on the question of what the defendant must be shown to know about the different elements of the charged offense. In part 3, the focus will be on whether the government must prove that the defendant knew that what she was doing was a crime. Thus, here we address the defendant’s knowledge about specific elements of the offense; in part 3, we address the overall knowledge of the defendant regarding the criminality of her conduct.
Consider this hypothetical crime: “It is a crime for a defendant to knowingly sell to a senior citizen a security that is not registered at the SEC.” Is the government required to prove that the defendant know that what she sold was within the legal definition of a “security”? Is the government required to prove that the defendant knew the security was not registered at the SEC? Is the government required to prove that the defendant knew the buyer was a senior citizen?
Assuming the answers are not obvious – and they are not – there are various criteria the courts have used to answer the questions, sometimes depending on what type of element is in contention, sometimes depending on the wording of the criminal statute. In the broadest terms, the courts will generally draw different conclusions depending on (1) whether the element is a simple fact, such as the light was green or red, or the suitcase contained cocaine; (2) whether the fact is such that absent proof of that fact, the defendant’s conduct would not be illegal at all; (3) whether the element of the offense is simply a jurisdictional requirement for federal jurisdiction; (4) whether the element relates to the age or occupation of a victim or accomplice, (5) whether the element requires knowledge of the legal status of the defendant or an accomplice, (6) whether the crime with which the defendant is charged includes an element that requires knowledge of another federal statute or regulation that was alleged to have been violated, such as the tax code, or a regulation governing the proper disposal of hazardous material.
Here are examples of the tests that the courts use, and the reason the court reaches a conclusion about what the government must prove:
It should be apparent that knowing what must be known defies simple answers. And to the list of problems that confront us should be added, as well, questions of what it means to “know” something in the first place? Deliberate ignorance? Negligence? Recklessness? Knowledge of a co-conspirator being attributed to the defendant? Those are questions for another day.
Part 3 will address the issue: Does the government have to prove that the defendant knew the conduct was criminal?
by Don Samuel
Last week, this Blog reported on the developing law surrounding the use of DOJ taint teams to review seized communications that may include attorney-client communications. This afternoon, Scott Grubman, on behalf of his client, Jim A Beard, filed a motion for a TRO seeking to immediately stop the government from continuing to use a taint team to review three years of emails seized from his client’s AOL account. The request for a TRO, relying on the Fourth Circuit case In re Search Warrant, 942 F.3d 159 (4th Cir. 2019), seeks not only to terminate DOJ’s access to, and continued review of, all the emails until a disinterested third party (either a special master, or the court) reviews the communications, but also to bar DOJ from making any decision about the applicability of the attorney-client privilege or the work product privilege. In addition, the motion also seeks to disqualify the NDGa U.S. Attorney’s Office from any further participation in the investigation of his client because of the abuse his client has already suffered by the government’s review of his privileged communications. He also decries the government’s use of a taint team without having an adversarial hearing (post-execution of the search warrant) at which the defense could have challenged the procedure We have learned that Judge Batten is handling this matter. Stay tuned.
by: GUEST BLOGGER Matt Dodge
For the second time in our nation’s history, a public servant named Van Buren is headed to Washington, D.C. Martin Van Buren occupied the White House more than 150 years ago as the eighth President of the United States. And now Nathan Van Buren, a police sergeant from Cumming, Georgia, will be at the United States Supreme Court next term.
On Monday, the Court granted Van Buren’s writ of certiorari, a writ signed by Rebecca Shepard of the Federal Defender Program, Saraliene Durrett of our CJA panel, and Jeffrey L. Fisher, Pamela S. Kaplan, and Brian H. Fletcher of the Stanford Law School Supreme Court Litigation Clinic.
The certiorari petition in Van Buren v. United States presents the following question: “Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.”
Put another way: If, with your work computer, you use the internet to do something beyond the express mission of the job, have you committed a federal crime?
Van Buren, as a police sergeant, knew a local ne’er-do-well named Albo, who often invited prostitutes to his home, only to call the police and claim the women stole his money. Albo became an FBI informant and worked to set up Van Buren, who was supposedly low on money, by paying him to use his work computer as a personal favor to Albo.
As a law enforcement officer, Van Buren was permitted to access driver’s license and license plate information on the Georgia Crime Information Center’s computer database. Albo (and FBI agents) knew that. He asked Van Buren to run the tag of a (fictitious) local exotic dancer who caught his eye. Although Albo tried to pay Van Buren in cash, Van Buren demurred. But he did run the woman’s tag number in the GCIC database and offered to share what he learned with Albo. That was his downfall here. Or was it?
Under the CFAA, “[w]hoever intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information” from a “protected computer” commits a federal crime. 18 U.S.C. § 1030(a)(2). A “protected computer” is one “used in or affecting interstate or foreign commerce or communication”—in other words, any “computer with Internet access.” The phrase “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6).
The federal government indicted Van Buren for violating the CFAA. Although Van Buren’s job permitted (even required) him access to the GCIC database “for law-enforcement purposes,” the government indicted him for using the database for “non-business reasons.” At trial in front of Judge Orinda D. Evans, Van Buren’s FDP lawyers argued that Van Buren was not guilty of violating the statute because, as a law enforcement officer, he was authorized to access the GCIC database. Under the law, they said, it did not matter why he accessed the database. The district court and the Eleventh Circuit demurred. The appeals court affirmed the conviction because it was enough that Van Buren ran the tag for “inappropriate reasons.”
There is a 4-3 circuit split on this question. The Eleventh Circuit says a person violates § 1030(a)(2) if he uses a computer to access information that he is otherwise authorized to access but does so for an improper purpose or “non-business reason.” The Eleventh Circuit is not alone—the First, Fifth, and Seventh Circuits agree that a person violates the law when he uses a work computer for a purpose his employer prohibits. (Um, Van Buren asks in his petition, what about our ubiquitous NCAA March Madness brackets?)
On the other end of the circuit split, the Second, Fourth, and Ninth Circuits each say that a person violates the CFA only if he accesses information on a computer that he is prohibited from accessing at all, no matter his reason.
In the end, Van Buren tells us why the majority’s rule is so dangerous not only to himself, but to all of us: “Reading the statute more broadly would criminalize ordinary computer use throughout the country.” What about corporate or university policies on computer use for employees and students? Under our home circuit’s view of the statute, “[a]ny trivial breach of such condition[s]—from checking sports scores at work to inflating one’s height on a dating website—is a federal crime.” Or maybe it’s not. The Court will hear argument early next term.
by: Don Samuel
This morning, the Supreme Court announced its decision in Ramos v. Louisiana. The Court held that the Fourteenth Amendment does not tolerate non-unanimous jury verdicts in serious criminal cases. Only Louisiana and Oregon permitted non-unanimous verdicts, so the decision does not have much relevance in Georgia.
If you are interested in the principles that govern the Court’s assessment of whether to abide by stare decisis, this is a most interesting decision. Justice Kavanaugh devotes 18 pages in a concurring opinion explaining why Apodaca v. Oregon should be overruled. Included in his concurring opinion is a list of some of the monumental decisions of the Court that overruled precedents, including Brown v. Board of Education, Obergfell v. Hodges, Lawrence v. Texas, Batson v. Kentucky, Katz v. United States, Gideon v. Wainwright, Mapp v. Ohio among numerous others. And Justice Alito’s 26-page dissent is also devoted entirely to explaining the importance of stare decisis. Justice Alito’s dissent was joined by Chief Justice Roberts and Justice Kagan (an odd alignment).
Also today, the Supreme Court granted cert in a NDGa case (Federal Defenders; Judge Evans) addressing the following question: “Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.” United States v. Van Buren.
by Don Samuel
The only people who say “Ignorance of the Law is No Excuse” are people who are, well, ignorant of the law. Ignorance of the law is a curse that afflicts citizens, lawyers, judges and law enforcement officers. There are over 5,000 federal criminal laws on the books and the majority are not in Title 18 of the federal criminal code, but are scattered throughout the federal code, including Titles 21 (drugs); 26 (tax); and 42 (various health and safety laws), among others. There are thousands of additional federal regulations that are incorporated into criminal statutes. No wonder ignorance of the law abounds. There are more laws we, as lawyers, are ignorant of than there are those with which we are familiar. How is the public expected to know all these laws?
Understanding how and when ignorance of the law is an excuse, defies simple rules. The Model Penal Code provides minimal (and unintelligible) assistance; Supreme Court precedent points in all directions; the rules of statutory construction are painfully vague and inconsistent; and even common sense is unavailing.
Using the literary device in medias res, let’s begin in the middle and consider the recent decision in United States v. Rehaif. A foreign student entered the country on a student visa, but he lost the right to remain in the country when he flunked out of school and lost his student visa status and thereafter remained in the country illegally. Meanwhile, he possessed a gun. According to law, a person who is not legally in the country is not permitted to possess a firearm. An illegal alien is a prohibited person, just like a convicted felon.
But does the “prohibited person” need to know that he is a prohibited person in order to be guilty of possession of a firearm by a prohibited person? Is the government required to prove beyond a reasonable doubt not only that the person is a prohibited person, but also that the person knows he is a prohibited person? In the case of Mr. Rehaif, was the government required to prove that as soon as he flunked out of school, he knew he was an illegal alien?
Had you asked the question in early June of 2019, the answer would have been “no” in virtually every corner of the country and in every state in between: the person’s status must be proven beyond a reasonable doubt, but not the person’s knowledge of his status.
But today, the answer is “yes.” Rehaif v. United States, 139 S. Ct. 2191 (2019).
So why is this such an important case for not only illegal alien gun possessors (and all prohibited person gun possessors), but also the entire White Collar Criminal Practice? The short answer is this: White Collar Crimes, just like 18 U.S.C. § 924, require that the government prove a defendant’s knowledge of the existence of certain elements of the offense that is charged. It is often unclear how many elements of the offense the government must show that the defendant knew about. Is the government required to prove that the defendant knew of the existence of all the required elements of the offense? Does it matter if the element of the offense in contention (the element that must be known) is: (1) a fact (I gave money to a candidate for federal office); or (2) a legal status (I am a “foreign national”); or (3) what is often referred to as a “jurisdictional element” (interstate commerce, for example); or (4) a constituent element of the offense that is itself a separate law or regulation (foreign nationals may not contribute to candidates running for federal elective office), other than the actual law making it a crime to engage in conduct with the mental state in the criminal statute. See United States v. Singh, 924 F.3d 1030 (9th Cir. 2019), cert granted and case remanded for reconsideration in light of Rehaif.
Rehaif was charged with violating 18 U.S.C. § 924(a)(2), because he possessed a firearm despite the fact that he was a prohibited person. His prohibited person status was based on § 922(g), which states that aliens illegally in the country may not possess a firearm. § 924(a)(2) specifically states that any person who “knowingly violates” § 922(g) can be imprisoned for up to ten years. In reaching the decision to require proof that the defendant knew his status, Justice Breyer, writing for a seven Justice majority, emphasized that the defendant’s status was an element that separated lawful from unlawful conduct. If the defendant were not an illegal alien, he could possess a firearm, but the fact that he was an illegal alien is precisely what made his conduct illegal and for that reason, his mens rea—his mental state—must include knowledge of this element. See also United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct. 464 (1994).
Thus, Rehaif shows that the mens rea or scienter component of some crimes requires that the government prove that the defendant knew more than just facts, but also knew certain laws or certain legal consequences (such as one’s legal status). How does a court determine what laws the defendant must be shown to know and which ones not?
Generally, but not always, the knowledge that the defendant must have does not include knowledge of the criminal law itself that is alleged to have been violated. Thus, in Rehaif it was not necessary for the government to prove that the defendant knew that it was a crime for an illegal alien to possess a gun. But it was necessary for the government to prove that he knew he was an illegal alien (and also, of course, the fact that he was possessing a gun).
There are, however, other crimes that require proof that the defendant was generally aware that the defendant was doing something wrongful (Bryan v. United States, 524 U.S. 184 (1998)). As the Eleventh Circuit Pattern Instruction explains,
A person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law. Now, the person need not be aware of the specific law or rule that this conduct may be violating. But he must act with the intent to do something that the law forbids.
In limited situations, most notably in tax-related prosecutions, the Supreme Court has required proof that the defendant knew precisely what was wrong that he did and that he knew it was a crime to do so (Cheek v. United States, 498 U.S. 192 (1991)). Both Bryan and Cheek involve criminal statutes that include the element of “willfulness” – that is, the statute requires that the defendant “willfully” violate the statute – as opposed to “knowingly violate” the statute.
The “knowing” and “willfully” cases reveal that Congress often haphazardly places this scienter element in a variety of locations in the statute and the term arguably applies to an assortment of different elements. The different places that “knowing” shows up in statutes, and the different facts/laws/principles that must be known are staggering and, no pun intended, hardly appear to be purposeful on the part of Congress. The courts are provided with numerous statutory interpretation tools – many inconsistent with each other – to determine what, exactly, must be known to the accused:
Some statutes have been interpreted only to require that the defendant know an historical fact.
Some statutes that include as an element the occupation or age of another person (a victim or aider and abettor), have been held by the courts not to require proof that the defendant knew the occupation or age of the other person, though there are exceptions.
But the courts have also held that if the other person’s legal status is an element of the offense (as opposed to the person’s age or occupation) the government must prove the defendant knew the other person’s legal status. Thus, for example, it is a federal crime to murder an FBI agent or a federal judge, but the government is not required to prove that the defendant was aware of the occupation of the victim. It is also a federal crime to assist an illegal alien enter the country and it is necessary for the government to prove that the defendant knew the status of the person he was assisting.
Some courts have held that statutes that require that the defendant occupy a particular status requires that the government prove that the defendant know his own status. Rehaif
Some statutes have been interpreted by the courts to require that the defendant know a federal regulation or federal statute that the criminal law declares it is a crime to violate.
Thus, if a person sells liquor to a person in exchange for food stamps, the government must prove that the seller knew that this violates the Food Stamp Act.
Some statutes are entirely silent about what the defendant must know and the courts must decide whether to invent a scienter requirement, or interpret the statute as strict liability.
Some statutes make it a crime to knowingly transport a hazardous substance or to export a certain type of munition and the courts have held that the defendant need not be shown to know the exact type of substance or munition that was being transported or exported, but must have known in general what he was transporting or exporting and that the shipment required a license.
How have the courts reached these results, and what does Rehaif portend for future cases?
Kelly v. United States and the need to define "property" in the Mail Fraud Statute. The Court can no longer delay with the explanation, "We'll cross that bridge when we come to it."
by: Don Samuel
The Bridgegate case – Kelly v. United States – was argued in the Supreme Court in January and is awaiting decision. The facts of the case, viewed through the prosecutors’ lens, begins with three state employees deciding that it was time to punish the mayor of Fort Lee, NJ for his failure to support Governor Christie in his reelection bid. The punishment was actually inflicted on the citizens of Fort Lee: Two of the three customary lanes of eastbound traffic that were used by Fort Lee residents to enter the George Washington Bridge during morning rush hour were converted to traffic coming from another location. The resulting traffic jams backing into the City of Fort Lee were monumental.
The three state employees claimed that the lanes were closed in order to conduct a traffic pattern study. This was false. Did they commit mail and wire fraud in violation of 18 U.S.C. §1341 and § 1343? They did not receive a bribe or a kickback, so their conduct did not amount to honest services fraud, 18 U.S.C. § 1346. So to amount to federal fraud, the conduct must have been a scheme to deprive the victim of property or money.
According to the indictment the defendants lied (the reason for the lane closure) and the victim (the Port Authority) was deprived of property (the proper use of the traffic lanes; and the wages paid to toll booth collectors who were required to work overtime to accommodate the increased traffic).
Those are the elements of the offense that must be proven, but the dispute in the Supreme Court focused primarily on whether the Port Authority was deprived of property (either tangible or intangible).
The defendants, in the Supreme Court, argued that the Port Authority was not deprived of property and this was nothing more than an illegitimate “honest services fraud” prosecution in disguise. The lanes of traffic were still owned by the Port Authority and the lanes of traffic were still being used by the public, albeit not by the beleaguered citizens of Fort Lee. Only the “motive” for the lane closure was a lie and the motive for politicians’ decisions are often a mixed bag (and not honestly revealed): there are always political considerations to every decision (as Mick Mulvaney candidly implored, “Get over it”).
The government responds that the defendants “commandeered” the lanes of traffic and that this is no different than a government employee who directs city employees to paint a private citizen’s house or mow the lawn of the government employee. That is property fraud: taking the time of the city employees away from their legitimate tasks. Taking the paint and the lawn mower away from the public use to which the paint and lawn mower are supposed to be devoted.
“No,” respond the defendants, “it is more akin to telling a snowplow driver first to plow the mayor’s street, then the streets of the city councilmen who belong to the favored political party, and at the end of the day, the streets of the councilmen who belong to the disfavored political party. And that command, though distasteful, is not property fraud.”
The prosecutor replies: “If you want to use the snowplow hypothetical, it would be more apropos to consider a defendant who pushes the snowplow driver away from the steering wheel and drives the snowplow to the defendant's street, while the real snowplow driver is incapacitated.”
The oral argument did not do much to clarify this issue. What if, the Court asked, one lane of traffic was redirected to the front of the mayor’s privately-owned hotel, or restaurant so that more drivers would patronize his private businesses? Is that a deprivation of the port authority property? Is that federal property fraud, assuming there is a false statement offered for the reason (and a mailing)? Surely it is an abuse of power, but is that federal fraud?
The government, in its brief, concedes that lying about a politician’s motive for any decision is not mail fraud (#GetOverIt). But commandeering property is fraud. It is not fraud for the employee to give a false reason for instructing the snowplow driver to start at the mayor’s street. But it is fraud to redirect lanes of traffic based on a non-existent traffic study.
The point may be this: if the defendant had the authority to initiate a traffic study and, in fact, did so, then any false statement he makes about his motive for doing so is not federal fraud. But if there was, in fact, no traffic study at all (or, perhaps, the defendant had no authority to initiate a traffic study), then it is fraud to direct that the lanes be closed and explain, later, that it was because of a traffic study.
The defendants parry this argument, too, arguing that the defendants had the authority to redirect traffic patterns, and whether they did so because of a faux traffic study, or not, is not the difference between guilt and innocence: they had the authority to redirect traffic and the fact that they had no interest in actually studying the traffic is irrelevant. They directed the Port Authority to redirect traffic and, having done so (and having not deprived the Port Authority of any property), the reason that they redirected traffic is the type of “motive” evidence that the government conceded was not a basis for a federal fraud prosecution. Perhaps the government is, in fact, resurrecting honest services fraud. Perhaps this is a bridge too far.
by: Amanda Clark Palmer
Partner Robin Loeb recently wrote about the first COVID-related civil litigation, and now we are seeing some of the first COVID-related criminal prosecutions. You are probably thinking that the feds are going after those who stockpile hand sanitizer or toilet paper and then charge ridiculous markups, or “snake oil salesman” who are hawking things they claim cure the coronavirus. But you’d be wrong. No, the feds are throwing the book at Christopher Perez for posting a threat on Facebook claiming he paid someone to spread the coronavirus at grocery stores in his area to keep people home (and therefore limit the spread of the virus.) To be clear, his Facebook post was completely false. He hadn’t paid anyone, and no one had gone to any grocery stores to “spread” the virus. Christopher may have had laudable goals but incredibly poor judgment when it comes to carrying out his goals. But was it a crime? Should he go to prison?
It’s worth reading the text of his Facebook post for context. His post stated “PSA!! Yo rt GROCERY STOREMERCADO!! My homeboys cousin has covid19 and has licked every thing for the past 2 days cause we paid him too . . . big difference is we told him not to be these fucking idiots who record and post online . . . YOU’VE BEEN WARNED!!! GROCERY STORE on nogalitos next ; )” This post was on Facebook for 16 minutes before he took it down. And FWIW no grocery stores closed or took any action based on the post – they were waiting confirmation of the validity of the threat before planning any response.
The U.S. Attorney’s Office for the Western District of Texas (you were thinking this must have been Florida, weren’t you?) charged Christopher with one count of violating 18 U.S.C. § 1038. What are the elements of this charge? This statute (called “False information and hoaxes”) criminalizes those who “engage in any conduct with the intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of” and then gives several different other statutes. In Christopher’s case, the complaint alleges that his hoax involves “biological agents” as defined under 18 U.S.C. § 175. That statute says it is illegal to develop, produce, stockpile, transfer, acquire, retain, or possess any biological agent, toxin, or delivery system for use as a weapon. The statute further defines “for use as a weapon” as use for other than prophylactic, protective, bona fide research, or other peaceful purposes.
Query then how the government can prove their case against Christopher when his stated purpose for using the virus wasn’t for use “as a weapon”? If one believes Christopher, he actually had a peaceful – albeit hair-brained – purpose behind his post: to save others from being exposed to the virus by scaring them away from the grocery store.
Another problem for the government is the phrase “reasonably be believed.” First of all it is on Facebook, so the method of posting the information itself already leads most people to doubt its reliability. According to a 2019 article from fortune.com, Facebook removed over two billion fake accounts in the first quarter of 2019! How can the government even establish it is his Facebook account and he is the one who posted the content? Well, actually Christopher helped the government with that one – he apparently admitted to agents that it was his Facebook account and he did put up that post. (Bringing to mind one of Ed Garland’s favorite sayings “A fish wouldn’t get caught if he didn’t open his mouth.”) So fine; they can establish it was him who made the post. They still have to prove – beyond a reasonable doubt – that his post would “reasonably be believed.” This is where jury selection is really important; an ideal juror for the defense would be someone who already has an inherent distrust of what she reads online, especially on social media. Then there is the content of the post itself. The claim is so outlandish it is hard to believe anyone would take it seriously at all, no matter where it was posted. The reader would have to believe: 1) that someone would go around a grocery store and be able to surreptitiously lick every item in the store for two days without being noticed, 2) that the same person would be willing to go around and purposefully try and infect other grocery story shoppers because he’s that much of a jerk, and 3) that the same person would be part of a conspiracy with Christopher; that together they hatched this inane plan to infect as many other people as possible by licking grocery store items. How can the government argue this post would reasonably be believed by anyone? Isn’t that belied by the fact that the grocery store itself didn’t take any action upon learning of the content of the post?
And there’s more: How does the First Amendment figure into this? Shouldn’t Christopher be able to exercise his First Amendment right to free speech? Of course he should, but it doesn’t mean his right to free speech is completely unrestricted. The U.S. Supreme Court has held that certain, discrete categories of content-based restrictions do not violate the First Amendment (for example defamation, “fighting words”, yelling ‘fire’ in a crowded theater; child pornography, and fraud just to name a few.) A separate, but similar statute, is 18 U.S.C. § 35, the so-called “bomb hoax” statute. This statute criminalizes conveying false information regarding an attempt to destroy, damage, or disable aircraft. In 2012, the Eighth Circuit Court of Appeals ruled that restrictions on speech in this statute did not violate the First Amendment because this statute criminalized a “true threat” and true threats are exempted from First Amendment protection. It seems likely that a First Amendment challenge to the statute in Christopher’s case would also be viewed as exempt from First Amendment protection.
If the government can overcome their evidentiary burdens and convince a jury that Christopher did in fact violate the law, what’s the likely punishment? The maximum punishment under the statute is five years, but that is rarely a helpful guideline to estimate the likely sentence. Instead, we look to the Sentencing Guidelines. In this case, a violation of 18 U.S.C. § 1038 falls under USSG 2A6.1. The base offense level is 12. There are some aggravating factors that don’t seem to apply in this case (such as, adding 6 levels if the offense involved any conduct evidencing an intent to carry out the threat.) The Guidelines say to decrease the base offense level by 4 if no aggravating factors apply and the offense involved a “single instance evidencing little or no deliberation.” On the few facts that are gleaned from reading the DOJ’s press release and the complaint filed by the investigating officer, this Guideline provision sure seems to apply to Christopher’s case. Meaning he ends up with a Guideline level of 8. If one assumes he is a Criminal History Category I, a Level 8 is in Zone A, with a suggested sentence range of 0-6 months (which could be served on probation or home detention).
It will be interesting to track this case over the next several months to see what the outcome is. Will Christopher plead guilty? Will he be offered pretrial diversion? Will he go to trial? We will check back in with Christopher periodically to see how his case is progressing. In the meantime, here is the DOJ's Criminal Complaint.