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?