finding that the statutory penalty for carrying a weapon onto an airplane, which was a strict-liability offense, carried with it “a maximum fine of $1000 or imprisonment for not more than one year, or both,” which made the “offense a misdemeanor,” and “is thus ‘relatively small.’ ”
How later courts described this case
- finding that the statutory penalty for carrying a weapon onto an airplane, which was a strict-liability offense, carried with it “a maximum fine of $1000 or imprisonment for not more than one year, or both,” which made the “offense a misdemeanor,” and “is thus ‘relatively small.’ ”
- extensive analysis; no proof of intent required for conviction of attempting to board an aircraft with a concealed deadly weapon
- reviewing the district court’s fact-finding on a likelihood of confusion de novo where it applied the incorrect legal standard
Written by the judges who cited it.
The opinion
HEANEY, Circuit Judge
(dissenting).
I respectfully dissent. It is my view that an essential element of the crime embodied in 49 U.S.C. § 1472 (7) is intent to conceal. While the requisite intent may have been present in this case, the issue was not considered by the factfinder. Accordingly, I would find error in the District Court’s ruling that intent is not an element of the offense.
I start from principles fundamental to our system of criminal justice:
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of *46 the normal individual to choose between good and evil. * * *
Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. * * *
******
* * * The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution’s path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative.
The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute. And where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.
Morissette v. United States, 342 U.S. 246, 250-252, 263 , 72 S.Ct. 240, 243 , 96 L.Ed. 288 (1952). See United States v. Freed, 401 U.S. 601, 607-608 , 91 S.Ct. 1112 , 28 L.Ed.2d 356 (1971).
My interpretation of 49 U.S.C. § 1472 (7) is consistent with those principles. When Congress enacted this statute, using language similar or identical to that employed by the states in prohibiting the carrying of concealed weapons, it can only be presumed that it meant to retain the common law meaning that universally required intent to conceal. At common law, the carrying of a concealed weapon was not a crime unless the weapon was concealed “knowingly,” “intentionally” and/or “consciously.” See, e. g., State v. Jordan, 495 S.W.2d 717, 720 (Mo.1973); Nugent v. State, 104 Neb. 235 , 176 N.W. 672 (1920); State v. Williams, 184 Iowa 1070 , 169 N.W. 371 , 372 (1918); 3 Wharton’s Criminal Law and Procedure (Anderson Ed. 1957) at 119; 43 A.L.R.2d 492 , 510, 518-521. These words connote that the actor committed the prohibited acts either with the purpose of concealing the weapon or knowing that the weapon would be concealed. 1 See Working Papers of the National Commission on Reform of Federal Criminal Laws (Vol. I 1970) at 123 — 124; Black’s Law Dictionary (Revised Fourth Ed. 1968) at 948, 1012. Culpability, in addition to the prohibited act, was required before the actor could be labeled a criminal.
The majority’s reliance upon United States v. Margraf, 483 F.2d 708 (3rd Cir. 1973) (en banc), vacated on other grounds, 414 U.S. 1106 , 94 S.Ct. 833 , 38 L.Ed.2d 734 (1973), on remand, 493 F.2d 1206 (1974) (remanded to the District Court to allow the government to dis *47 miss the complaint), and United States v. Dishman, 486 F.2d 727 (9th Cir. 1973), is misplaced. Neither case turned on the question of whether an intent to conceal was necessary. Dishman stated only that:
Any necessary element of present or later developed intent to make use of the “deadly and dangerous” weapon in the commission of a crime while aboard the aircraft is conspicuous by its utter absence.
United States v. Dishman, supra at 730. And, Margraf stated:
A person who bpards a plane with a concealed deadly weapon need not intend to use it to be a hazard[ 2 ] * * *
United States v. Margraf, supra at 710.
Proof that a weapon was concealed intentionally can, of course, be established circumstantially by inference from the objective facts and circumstances. An admission by the defendant is not necessary for a successful prosecution. See, e. g, State v. Jordan, supra at 721; Nugent v. State, supra at 672; State v. Williams, supra at 371 .
The decision of the majority of this Court that imposes criminal liability without regard to the intent of the actor, strict criminal liability, is not only contrary to the common law but is unnecessary for the fulfillment of the Congressional purpose. 3 The stated purpose of the statute is deterrence:
The provisions of this legislation, it will be noted, are based on the use of criminal sanctions as a deterrent to the commission of criminal acts. * *
******
Broad, stringent legislation such as is proposed here cannot, of course, prevent piracy of aircraft, but it is to be hoped that the enactment of laws providing stiff penalties for various crimes in air commerce will deter all except the hopelessly unbalanced from risking life and liberty in such undertakings.
1961 U.S.Code Cong. & Admin.News, pp. 2563-2564.
This policy of deterrence, as recognized by Congress, will have no effect upon the “hopelessly unbalanced;” it will also have no effect upon those who act innocently, without the intent to conceal.
The justification for imposing criminal liability where there is no fault has been that enforcement of society’s demands requires it. * * * If a person’s conduct has been truly without fault, however, the threat of punishment will not favorably affect his conduct. The imposition of punishment is not needed to “reform” or “rehabilitate” him; no fault requiring correction has been identified. Punishment, if it takes the form of detention, will prevent him from engaging in the conduct while he is detained. It may also satisfy the community’s (irrational) demand for retribution for the harm which the conduct caused.
These slight functions which can be served are manifestly inadequate justifications for criminal liability without fault. Preventive detention of the kind involved here has no place in the criminal law. It is unlikely that the community will feel strongly about offenses of this kind (although it may strongly support regulation of the activity involved), particularly when there is no culpability, and unlikelier still that, if the community has such feelings, they will be so strong that they should be recognized for the sake *48 of the community, despite their irrationality.
Working papers, supra at 129.
The decision of the majority permits imposition of criminal liability upon the housewife who carries scissors in her sewing bag; the fisherman who carries a scaling knife in his tackle box; the professional who carries a letter opener in his briefcase; the doctor who carries scalpels in his medical bag; and the tradesman who carries a hammer in his tool kit.
The majority attempts to avoid this problem by pointing out that concealment is always a factual question and that all facts and circumstances can be considered in determining whether a weapon has been concealed. This ambiguous language may be taken by some as requiring that an intent to conceal be found, but I am not willing to leave the matter in such an ambiguous state. I agree that an oral disclosure of the weapon and the obviousness of its presence upon the physical search rebut the criminal act. They also rebut the criminal intent. The understandable failure to orally disclose the existence of a weapon, when momentarily the contents of the hand luggage will be subjected to a full search, or the fortuitous manner in which a passenger packs his hand luggage should not be the sole factors determining guilt. Only by preserving the defendant’s opportunity to put before the jury evidence that the act of concealment was without culpability will the innocent be protected. Easing the prosecutor’s burden cannot be justified when the result is injustice.
It is not the imposition of criminal liability upon those who innocently carry weapons in their hand luggage but the preflight boarding searches that will “halt the flow of weapons on board aircraft.” Supra at 43. This extraordinary procedure 4 is the practical method Congress has chosen to insure flight safety. The requirement of intent as an essential element of 49 U.S.C. §. 1472(1) will not undermine that procedure or its purpose. The intent requirement will only insure that prosecutions under the statute will be limited to those persons who would be deterred thereby. The statute should not be construed to serve a purpose it cannot achieve.
The troublesome problem of selective enforcement is also aggravated by the majority’s decision. As revealed in the Federal Aviation Administration’s First Semi-Annual Report to Congress on the Effectiveness of Passenger Screening Procedures, 67,710 weapons were detected in 1974. As a result thereof, however, only 1,147 arrests for weapons related offenses were made. The percentage of arrests made to weapons detected was 1.69%. 5 It is apparent that the security officer possesses an enormous amount of unreviewable discretion. The decision of a majority of this Court increases that discretionary power and places the determination of innocence in the hands of the police.
In the total system of police discretion, one fundamental failure is the continued enactment of statutes which go far beyond the limits of effective law enforcement. Criminal statutes which overshoot are a prime cause of avoidable injustice, because such statutes inevitably result in selective enforcement, and cases are often selected for enforcement on irrational grounds. *49 A major means of reducing injustice is 1 by tailoring criminal statutes to what can be rather fully enforced.
Davis, Discretional Justice, A Preliminary Inquiry 91 (1969) (Emphasis included.).
Here the fault is not legislative but judicial.
. The mental element, or mens rea, required at common law was in addition to the mental process required to commit the prohibited act. All acts are accompanied by a mental process directing the physical movement. Mens rea, on the other hand, is an awareness of the consequences of the physical act. See Mueller, On Common Law Mens Rea, 42 Minn.L. Rev. 1043 (1958).
. Some states required more than the intentional concealment of the weapon and held that the act was not a crime unless the accused intended to use the concealed weapon in an unlawful manner. See 3 Wharton’s Criminal Law and Procedure (Anderson Ed. 1957) at 117-118.
. * * * In the absence of an overriding policy objective which requires the use of criminal sanctions where moral blame does not attach, it is surely preferable to make criminal law conform to moral judgment.
Working Papers of the National Commission on Reform of Federal Criminal Laws (Vol. I 1970) at 130.
. Congress recognized the unprecedented nature of preflight searches:
The routine search of a person is completely foreign to our constitutional protections. We have never legislatively countenanced a police or security officer interruption and search of an individual lawfully conducting himself. Because of the high incidence of aircraft hijacking and the gravity of these offenses, the conferees have reluctantly approved a security system which does allow routine searches of passengers in contradiction to our cherished constitutional freedom. At best such a search is unpleasant. * * * The legalization of these searches is a serious inroad into our basic individual right to privacy. * * *
1974 U.S.Code Cong. & Admin.News, pp. 4009 — 4010.
. I am unaware of any statistics revealing the number of passengers ultimately charged and convicted.