United States v. Langley

PHILLIPS, Senior Circuit Judge, concurring and dissenting:

I concur in the judgment and in all of the majority opinion save Part II which holds that the express "knowingly" requirement now applicable to the § 922(g)(1) "felon-in- possession" offense does not require, in order to convict, proof that the accused knew at the critical time charged that he "ha [d] been convicted in any court of a crime punishable by imprisonment for a term exceeding one year,"³ it being sufficient merely to prove that he had been. I dissent from that holding, and would hold to the contrary that the express knowledge requirement runs to this substantive element of the offense as well as the others. But because I would also hold that in this particular case the district court's failure so to instruct the jury was harmless error, I concur in the judgment affirming the conviction on the § 922(g)(1) "felon- in-possession" count . . . .

I

Langley's specific contention is that the district court erred in refusing to instruct the jury that a conviction under § 922(g)(1) requires proof that the defendant knew, at the time he took possession of the firearms, both that he was a convicted felon and that the firearms had moved in interstate commerce. To address this contention in its various aspects, it is necessary to review briefly the history of the statutory language upon which it is based.

[As the majority notes, the predecessor statutes to § 922(g)] did not require proof that the defendant acted with knowledge of the fact that he was a convicted felon or that the firearm had travelled in interstate commerce. Instead, those provisions were consistently interpreted to require proof of no mens rea other than that the defendant had "knowingly" engaged in the prohibited conduct of shipping, transporting, receiving, or possessing a firearm.⁴

Like its predecessors, § 922(g)(1) itself contains no explicit mens rea language. But when Congress enacted § 922(g)(1), it also amended the basic penalty provision for all of the § 922 offenses, 18 U.S.C. § 924(a), to add the mens rea language at issue. The original version of § 924(a) had provided simply that "[w]hoever violates " any provision of Chapter 44 of Title 18, including any provision of § 922, was subject to a fine of not more than $5,000, imprisonment for not more than 5 years, or both. The 1986 amendment to § 924(a) replaced this broad "whoever violates" language with language providing penalties for only those violations of Chapter 44 that were committed either "knowingly" or "willfully." Unlike its predecessor, the 1986 version of § 924(a) did not authorize the imposition of any criminal penalties for violations of Chapter 44 that were neither "knowing" nor "willful."

. . . [The dissent engaged in extensive analysis demonstrating that the penalty provision of the statute, which contains the "knowingly" language, was meant by Congress to extend a mens rea to the substantive criminal statute (a view rejected by the trial court but accepted by the majority without discussion).]

The legislative history of FOPA, to which we may properly resort because the statutory text is ambiguous, confirms this view. One of the most oft-voiced criticisms of the Gun Control Act of 1968 was that, as interpreted by the courts, it permitted individuals to be subjected to criminal prosecution for minor, technical violations of provisions that were essentially regulatory, rather than penal, in nature. Each draft of the legislation that became FOPA--from the initial version first introduced in the 96th Congress to the version that was ultimately passed by the 99th--proposed to correct this problem by inserting either "willfully" or "knowingly" (or both) between "whoever" and "violates" in the general penalty provision in § 924(a). Each of the committee reports prepared in connection with these various drafts of FOPA stated explicitly that the insertion of this language in the § 924(a) penalty provision was designed to make proof of a "willful" or "knowing" state of mind an essential element of all of the substantive offenses to which § 924(a)'s penalties applied. For example, the report prepared to accompany S. 914 stated that:

Paragraph (1) of Section 104 makes a major change in 18 U.S.C. § 924(a) by requiring for the first time the proof of criminal states of mind with respect to all of the activities proscribed in Chapter 44. Under existing law, ... all violations [of Chapter 44] constitute felonies. While some activities proscribed in Chapter 44 contain[ ] a criminal state of mind, many do not. As a result, persons can be subject to prosecution and harsh penalties for what are essentially technical violations of a regulatory scheme. In addition, even where states of mind have been spelled out in Title 18, certain court decisions have created the need for Congress to clarify what type of intent should trigger criminal penalties.

And the committee report attached by the House to the version of FOPA that was ultimately enacted also stated that the insertion of the mens rea language in § 924(a) was designed to "require proof of a knowing state of mind for the prohibited conduct for the felony violations of the [Gun Control Act]."

This legislative history confirms what logic so strongly suggests: that Congress intended the "knowingly" and "willfully" language in amended § 924(a) to be read as imposing mens rea requirements upon all substantive offenses to which the § 924(a) penalties apply. That history is more than sufficient to overcome any implications to the contrary that might otherwise arise from its placement of that language in what is principally a penalty provision, rather than in the provisions defining the underlying substantive offenses. That Congress chose to proceed in this fashion may be thought curious, but it is not unprecedented. Perhaps, as the Ninth Circuit has suggested, Congress chose to amend § 922's penalty provision rather than § 922 itself "simply to avoid having to add 'willful' or 'knowing' into every subsection of section 922." Whatever the ultimate explanation, I agree that Congress intended the addition of the words "knowingly" and "willfully" in the penalty provisions of amended § 924(a) to be read as laying down mens rea requirements for all substantive offenses to which those penalties apply.

B

The next question, once it has been decided that the "knowingly" language in § 924(a) makes proof that the defendant acted "knowingly" an essential element of the § 922(g)(1) substantive offense is just what exactly does it require the government to prove that the defendant knew? Does it require the government to prove beyond a reasonable doubt not only that the defendant knowingly engaged in the conduct proscribed by the statute (here, shipping, transporting, receiving, or possessing a firearm), but also that he did so with knowledge of the circumstances that made that conduct a federal crime (here, either or both that he had been previously convicted of a felony and that the firearm had travelled in interstate commerce)? Or does the knowledge requirement run only to the prohibited conduct, so that a conviction under § 922(g)(1) requires proof only that the defendant "knowingly" engaged in the conduct of shipping, transporting, receiving, or possessing a firearm, and not that he did so with knowledge either of the fact that he was a convicted felon or that the firearm had travelled in interstate commerce?

The language of the statute itself, always our starting point, does not give a plain answer. Although Congress obviously intended "knowingly" to impose a knowledge requirement with respect to some of the "black-letter" elements of the § 922(g)(1) offense, the word in context does not plainly indicate which of those elements Congress had in mind, and the language can fairly be read to support either interpretation. We therefore are confronted with facial ambiguity which justifies resort to canons of construction. See Sherbondy, (recognizing that meaning of "knowingly" language in amended § 924(a) is "ambiguous," because the statute uses the phrase "knowingly violates" without "specifying the conduct and attendant circumstances to which 'knowingly' attaches").⁵

The interpretive path here is clearly marked. To resolve this particular ambiguity concerning the intended reach of an express (or implied) mens rea requirement, we have a powerful primary canon of statutory construction. Long ago established by the Supreme court, essentially in Morissette v. United States, rigorously applied in the interval in Liparota v. United States, and United States v. United States Gypsum Co., and most recently reaffirmed in United States v. X-Citement Video, Inc.,) and Staples v. United States, it is the presumption that, unless statutory language or legislative history evinces a contrary intent, a nonspecific mens rea requirement was intended by Congress to run to "each of the statutory elements which criminalize otherwise innocent behavior."⁶  And where, as here, the specific question has been whether such a requirement runs not only to those elements that define the core conduct proscribed but also to any elements that define circumstances upon which criminality of the conduct turns, the Supreme Court's answer uniformly has been "yes," both where the statute contains an express but ambiguously stated mens rea requirement and even where a general requirement has to be implied. See Morissette (statute making it a crime to "knowingly convert[ ] ... property of the United States" interpreted, by force of the presumption, to require proof not only that defendant intended to "convert" property but that he knew it was property of the United States); Liparota (statute making it a crime to "knowingly acquire[ ] ... or possess [ ] [food stamps] ... in any manner not authorized by [the statute]" interpreted, by force of the presumption, to require proof not only of intentional acquisition and possession but of knowledge that conduct was "not authorized"); Staples (statute making it a crime to possess, inter alia, an unregistered "machine gun," and containing no express mens rea requirement, interpreted, by force of the presumption, implicitly to include a general mens rea requirement that included proof that the defendant knew the weapon he possessed was a "machine gun" as defined in the statute); X-Citement Video (statute making it a crime to "knowingly ... ship[ ] ... any visual depiction [of] ... a minor engaging in sexually explicit conduct", interpreted, by force of the presumption and constitutional concerns, to require proof that defendant-shipper knew that the person depicted was a minor).

As applied by the Supreme Court, this interpretive presumption prevails unless "some indication of congressional intent, express or implied," to the contrary can be found. And when the Court has sought such a contrary indication, it has not been willing to find it either in congressional silence on the particular element at issue, see id., or in ultimate ambiguity of statutory text or legislative history. And, on the other hand, the Court has found the presumption reinforced where violations of the statute could result in particularly "harsh penalties."

Applying those principles here, I am satisfied that the presumption should prevail to require proof under § 922(g)(1) that the defendant knew that he had been "convicted of a crime punishable by imprisonment for a term exceeding one year." The text of the statute contains no express or implicit indication that the "knowingly" requirement was not intended to apply to this particular element, which surely constitutes a fact or circumstance upon which the criminality of otherwise innocent conduct turns. Neither, as will be discussed, does the legislative history contain any express or implicit indication of such a contrary intent. Finally, the statute(s) here at issue now, under the 1988 amendments to FOPA, expose violators to the same range of potentially harsh sentences--including up to 10 years imprisonment--as did those being construed in Staples and X-Citement Video.

Only one of these propositions needs extended discussion: whether the relevant legislative history contains any sufficiently clear indication of an intention by Congress that the "knowingly" requirement should not apply to the defendant's "felony" status to overcome the Morissette presumption that it was intended so to apply.

It is important in making that inquiry to emphasize that it does not proceed as if the interpretive scales were in balance at the outset (as ordinarily they are in legislative history inquiries). As graphically illustrated in the Supreme Court's most recent applications in Staples and X-Citement Video, the inquiry is specifically one for clear indication of an intent contrary to that presumed. It is not, as ordinarily, a search for intent on a clean slate and as if the ingoing range of choices were of equal weight.⁷

The first thing to be said about the relevant legislative history is that it contains no express indication by anyone--individual legislator or committee--that the "knowingly" requirement newly inserted in § 924(a)(2) was not intended to apply to a defendant's "felony" status. No one in committee report or in floor debate, or in statements for the record said anything to the effect that "this requirement should be understood to apply only to the actual core conduct proscribed by the various substantive provisions to which § 924(a)(2) applies." If a sufficiently clear indication of such an intent at odds with the ingoing presumption of application to all substantive elements is to be found, it would have to be by implication from relevant portions of the history. I am satisfied that neither can it be found by this means.

Perhaps the best way to demonstrate this negative fact is to start with the portion of legislative history upon which the Government has mainly relied as demonstrating an intent by Congress to confine the scienter requirement to the core conduct elements of § 922(g)(1). That is a passage from the committee report attached to the bill that ultimately became FOPA.

[Amended § 924(a) ] require[s] proof of a knowing state of mind for the prohibited conduct for the felony violations of the [Gun Control Act]. Case law interpreting the criminal provisions of the Gun Control Act have required that the government prove that the defendant's conduct was knowing, but not that the defendant knew that his conduct was in violation of the law. [citing Freed ] It is the Committee's intent that unless otherwise specified, the knowing state of mind shall apply to circumstances and results. This comports with the usual interpretations of the general intent requirements of current law.

H.R.Rep. No. 495, 99th Cong., 2d Sess. 25-26.

The argument is that this passage clearly evinces congressional intent simply to codify pre-FOPA decisional law in which the lower federal courts consistently had interpreted § 922(g)(1)'s predecessor statutes as not requiring knowledge of "felony" status. The passage simply will not bear that weight, however, for two principal reasons.

In the first place, it was not prepared to support the version of FOPA that was actually enacted, but to support a rival version that was not enacted--a version which differed from the enacted version in several important respects. Most critically, the version for which that report was prepared and which was sponsored by members generally hostile to efforts to increase the mens rea requirements for Gun Control Act offenses, would have added "knowingly" language that by its terms seemed literally applicable only to the prohibited conduct. By contrast, the version that was ultimately enacted contains the much more ambiguous "whoever ... knowingly violates [Chapter 44]" language, which obviously could more easily be read to apply a knowledge requirement to all elements of the offense. When considered in total context of the enacting process, then, the cited passage simply loses whatever relevance it may have had had it been prepared to support the version of § 922(g)(1) actually enacted.

In the second place, even if the passage were somehow relevant to the intended meaning of the enacted version of § 922(g)(1), its significance on the point at issue is by no means clear. There is in that same report language strongly suggesting that the knowledge requirement all along was intended to apply to all facts necessary to make the defendant's conduct illegal, as would normally be the case at common law. See H.R.Rep. No. 495 ("It is the Committee's intent that unless otherwise specified, the knowing state of mind shall apply to circumstances and results."; equating the term "knowingly" with "the concept of general intent"; and defining "general intent" as "intentionally adopt [ing] certain conduct in circumstances known to [the defendant], where "that conduct is forbidden by the law under the circumstances")

Aside from this one passage of legislative history, whose actual relevance and substantive significance even if somehow relevant are demonstrably lacking, there is nothing else in the legislative history from which any specific intent to limit the reach of the "knowingly" requirement in any particular way can be found. The Government cites no such indication, nor does the majority, who indeed claim no such force for the one passage cited.

Rather than pointing to any specific indication in the legislative history, the majority relies (exclusively I think it fair to say) on a counter- presumption always implicit in the legislative process: the presumption that Congress legislates "with knowledge of existing law, and that 'absent a clear manifestation of contrary intent, a newly-enacted or revised statute is presumed to be harmonious with existing law and its judicial construction.' " Applying this presumption, the majority then emphasizes the fact that the pre-FOPA circuit court decisions interpreting "felon-in-possession" predecessors to §§ 922(g)(1) and 924(a)(2) uniformly had held that they did not require proof of knowledge of the defendant's "felon" status. Hence, the argument goes, because the legislative history reveals no "clear manifestation of contrary intent," that presumption prevails here.

There is no questioning the existence of this "harmonious-with-judicial- interpretations" presumption, and that it must be reckoned with here. Nor can it be questioned that the lower court decisions that had addressed this particular interpretive issue in application of predecessor statutes had indeed uniformly interpreted them in the way asserted. But, the presumption should not prevail here, for the following reasons.

First, its force cannot properly be considered, as does the majority, independently of the Morissette presumption. After all, as the Supreme Court has specifically noted, that presumption is itself part of the "law" whose existence Congress is presumed to know when it legislates. See United States v. Gypsum (Congress is "presumed to have legislated against the background of our traditional legal concepts" among which is the concept that "[t]he existence of a mens rea is the rule rather than the exception").

How, then, should the two interpretive presumptions operate when, as here, they may point in opposite directions? The answer seems plain to me. As earlier indicated, the Supreme Court's application of the common law presumption of an intent to give scienter requirements their broadest possible reach (i.e., to all elements, including criminalizing "facts and circumstances") must be accorded primacy as interpretive guide. On this basis, it should prevail over the counter-presumption of intended "harmony with interpretations of existing statutes" unless the latter is so overwhelmingly indicated in legislative history that it flatly compels acceptance. And that simply cannot be said here.

First off, the enactments at issue here do not employ the same or similar language as that which was the subject of the pre-FOPA judicial interpretations on the precise matter at issue. The critical provision we construe contains an express mens rea requirement, "knowingly," that was not found in the provisions subject to those earlier interpretations. We might have a clear case for applying the presumption (even over the Morissette presumption) had the predecessor statutes also contained a "knowingly" requirement of imprecise reach. But we do not have that.

Furthermore, as has been demonstrated, it is clear from the legislative history that the primary motivation for adding any express mens rea requirements to the FOPA provisions at issue here was to increase the safeguards against convictions for inadvertent, or careless conduct. That is to say, the general legislative intent indisputably was to move in the direction of extending rather than retracting or leaving in place existing mens rea requirements as judicially interpreted. That general congressional purpose clearly is more in line with the broad-reach Morissette presumption than with the contrary presumption to which the majority gives primacy.

In summary, I simply do not see any principled basis for distinguishing between knowledge on the one hand that property converted was that of the United States, or that one's possession of food stamps was unauthorized, or that a gun possessed was a machine gun, or that a person depicted in a film or photograph was a minor, and knowledge on the other hand that one had been convicted of a crime carrying certain punishment. If the common law presumption recognized and rigorously applied in Morissette and its progeny compelled the conclusion that a statute's imprecisely expressed (or merely implicit) mens rea requirement ran to each of the criminalizing circumstances in the former set, I do not see why it does not compel the same conclusion with respect to the circumstance here at issue. Nothing of which I am aware says that for some reason the presumption does not apply here at all. Nothing intrinsic in the various qualifying circumstances suggests why that might be so. It cannot be because the circumstance of prior conviction is any less one upon which the criminality of otherwise innocent conduct (possession, etc. of a firearm) turns than were those in Morissette, Liparota, Staples and X-Citement Video. It cannot be because proving knowledge of a prior conviction is inherently more difficult (or less difficult) than proving knowledge of who owned converted property, or whether particular possession was unauthorized, or whether a gun was of a special type, or a person depicted, a minor. The only generic distinction of any kind that I can see between the circumstance here at issue and all the others is that this one pertains to an episode in the defendant's life-history whereas all the others pertain to circumstances related to an object of the crime. This could not be a principled basis for different application of the presumption. Cf. United States v. Ballentine (7th Cir.1993) (in prosecution under § 922(g)(2) for possession, etc. of a firearm "by fugitive from justice," government must prove defendant's knowledge of facts that create fugitive status).

None of what has been said to this point, however, compels the conclusion that to convict under § 922(g)(1), the government must prove the defendant's knowledge that the firearms had travelled in interstate commerce. The fact of prior conviction is a substantive element of the crime; the fact of interstate travel is jurisdictional only. See United States v. Yermian, 468 U.S. 63, (1984) (comparable provisions in false- statement statute exists "solely to limit the reach of the ... statute to matters of federal interest"). Such purely jurisdictional provisions "need not contain the same culpability requirement as other elements of the offense," so that "the existence of the fact that confers federal jurisdiction need not be one in the mind of the actor at the time he perpetrates the act made criminal by the federal statute." The interstate commerce element in § 922(g)(1) is not therefore a "fact[ ] that make[s] [the defendant's] conduct illegal," Staples, for purposes of applying the common law mens rea presumption.

Chief Judge ERVIN, Judge MURNAGHAN and Judge MICHAEL join in this concurring and dissenting opinion.