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?