Amicus Curiae Brief — Hamid Mohamed Ahmed Ali Rehaif, Petitioner v. United States

No. 17-9560

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In The

Supreme Court of the United States

-----------------------------------------------------------------HAMID MOHAMED AHMED ALI REHAIF,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

-----------------------------------------------------------------BRIEF OF NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

-----------------------------------------------------------------THOMAS W. HILLIER, II

Counsel of Record

ERIN K. EARL

PERKINS COIE LLP

1201 Third Avenue

Suite 4900

Seattle, WA 98101

206-359-8000

THillier@perkinscoie.com

DAVID OSCAR MARKUS

Co-Chair, Amicus Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

40 NW 3rd Street, PH1

Miami, FL 33128

ANNA C. MOURLAM

PERKINS COIE LLP

3150 Porter Drive

Palo Alto, CA 94304

Counsel for Amicus Curiae National Association

of Criminal Defense Lawyers

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTERESTS OF AMICUS CURIAE....................

1

INTRODUCTION AND SUMMARY OF

ARGUMENT.....................................................

2

ARGUMENT ........................................................

3

I.

II.

III.

Mens Rea Is a Foundational Safeguard

Against Punishment for Unknowingly

Unlawful Conduct ......................................

3

A “Knowing” Violation of 18 U.S.C. § 922(g)

Requires Knowledge of the Status Element

Making the Possession of Firearms or

Ammunition Illegal ...................................

8

That the Crucial Element of the Offense Is

the Status of the Accused Himself Does

Not Permit Dispensing with Mens Rea ...... 19

CONCLUSION..................................................... 25

ii

TABLE OF AUTHORITIES

Page

CASES

Carter v. United States, 530 U.S. 255 (2000) ..............16

Cleveland v. United States, 531 U.S. 12 (2000) ..........18

Dennis v. United States, 341 U.S. 494 (1951) ...............6

District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................... 17, 23

Elonis v. United States, 135 S. Ct. 2001 (2015) .... passim

Flores-Figueroa v. United States,

556 U.S. 646 (2009) ......................................... passim

Liparota v. United States,

471 U.S. 419 (1985) ................................. 9, 10, 11, 19

McFadden v. United States,

135 S. Ct. 2298 (2015) ...............................................8

Morissette v. United States,

342 U.S. 246 (1952) ......................................... passim

Padilla v. Kentucky, 559 U.S. 356 (2010)....................24

Posters ‘N’ Things, Ltd. v. United States,

511 U.S. 513 (1994) .................................................14

Ratzlaf v. United States, 510 U.S. 135 (1994) ............21

Rewis v. United States, 401 U.S. 808 (1971)......... 10, 18

Staples v. United States, 511 U.S. 600 (1994) .... passim

United States v. Ahmad, 101 F.3d 383

(5th Cir. 1996)..........................................................14

United States v. Allen, No. 96-5694, 129 F.3d

1265 (6th Cir. 1997) (Tbl.) .......................................21

iii

TABLE OF AUTHORITIES – Continued

Page

United States v. Balint, 258 U.S. 250 (1922) ................9

United States v. Ballentine, 4 F.3d 504

(7th Cir. 1993)..........................................................21

United States v. Bostic, 168 F.3d 718

(4th Cir. 1999)..........................................................21

United States v. Butler, 637 F.3d 519

(5th Cir. 2011).............................................. 21, 22, 23

United States v. Capps, 77 F.3d 350

(10th Cir. 1996)........................................................20

United States v. Cook, 914 F.3d 545

(7th Cir. 2019)..........................................................21

United States v. Games-Perez, 667 F.3d 1136

(10th Cir. 2012).................................................. 13, 18

United States v. Kitsch, No. 03-cr-594,

2008 WL 2971548 (E.D. Pa. Aug. 1, 2008) ..............23

United States v. Langley, 62 F.3d 602

(4th Cir. 1995).............................................. 18, 19, 20

United States v. Renner, 496 F.2d 922

(7th Cir. 1974)..........................................................22

United States v. Santos, 553 U.S. 507 (2008) ..... 17, 18, 19

United States v. Sherbondy, 865 F.2d 996

(9th Cir. 1988)..........................................................21

United States v. Stein, 712 F.3d 1038

(7th Cir. 2013)..........................................................21

United States v. U.S. Gypsum Co.,

438 U.S. 422 (1978) ....................................... 6, 10, 11

iv

TABLE OF AUTHORITIES – Continued

Page

United States v. Wilson, 133 F.3d 251

(4th Cir. 1997)..........................................................14

United States v. X-Citement Video, Inc.,

513 U.S. 64 (1994) ........................................... passim

Yates v. United States, 135 S. Ct. 1074 (2015) ...........19

CONSTITUTION

U.S. Const. amend. II ..................................................17

STATUTES

18 U.S.C. § 922(g) ................................................ passim

18 U.S.C. § 924(a)(2) ........................................... passim

26 U.S.C. § 5861(d) ......................................................15

Clean Water Act, 33 U.S.C. § 1319(c)(2)(A) ................14

Firearms Owners’ Protection Act, Pub. L. No. 99308, 100 Stat. 449 (1986) ........................................18

OTHER AUTHORITIES

4 William Blackstone, Commentaries ..........................5

ALI, Model Penal Code § 2.02(4) ................................12

John S. Baker, Jr., Revisiting the Explosive Growth

of Federal Crimes, Heritage Foundation L.

Memo. No. 26 (June 16, 2008) ...................................7

v

TABLE OF AUTHORITIES – Continued

Page

Martin R. Gardner, The Mens Rea Enigma:

Observations on the Role of Motive in the

Criminal Law Past and Present, 1993 Utah L.

Rev. 635, 684-85 ................................................. 11, 12

Ann Hopkins, Mens Rea and the Right to Trial

by Jury, 76 Cal. L. Rev. 391 (1988) ...........................5

Edwin R. Keedy, Ignorance and Mistake in the

Criminal Law, 22 Harv. L. Rev. 75 (1908) ................4

Albert Levitt, Origin of the Doctrine of Mens

Rea, 17 Ill. L. Rev. 117 (1922) ...................................4

Eugene R. Milhizer, Justification and Excuse:

What They Were, What They Are, and What

They Ought to Be, 78 St. John’s L. Rev. 725

(2004) .........................................................................4

Max Radin, Criminal Intent, 7 Encyclopaedia

Soc. Sci. 126 (eds. Edwin R. Seligman & Alvin

Johnson 1932) ................................................... 4, 5, 6

Francis Bowes Sayre, Mens Rea, 45 Harv. L. Rev.

974 (1932) ..................................................................5

Francis Bowes Sayre, Public Welfare Offenses,

33 Colum. L. Rev. 55 (1933) ......................................7

Brian Walsh & Tiffany Joslyn, Without Intent:

How Congress Is Eroding the Criminal Intent

Requirement in Federal Law (Heritage

Foundation & NACDL 2010) .......................... passim

Herbert Wechsler, The Challenge of a Model

Penal Code, 65 Harv. L. Rev. 1097 (1952) .................3

1

INTERESTS OF AMICUS CURIAE1

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit voluntary professional bar association that works on behalf of criminal

defense attorneys to ensure justice and due process for

those accused of crime or misconduct. NACDL was

founded in 1958. NACDL is dedicated to advancing the

proper, efficient, and just administration of justice.

NACDL files numerous amicus briefs each year in the

U.S. Supreme Court and other federal and state courts,

seeking to provide amicus assistance in cases that present issues of broad importance to criminal defendants, criminal defense lawyers, and the criminal

justice system as a whole.

NACDL has a keen interest in the issue presented.

The question addresses the scienter requirement for

prosecution of persons of various statuses who are

prohibited from possessing firearms or ammunition.

NACDL has long advocated for enforcement of rigorous scienter requirements in criminal prosecutions.

The depth of its interest is manifest in Without Intent,

a white paper produced in collaboration with the

Heritage Foundation and published in April 2010.

See generally Brian Walsh & Tiffany Joslyn, Without

Intent: How Congress Is Eroding the Criminal Intent

1

Counsel for all parties received timely written notice of

NACDL’s intent to file this brief. Letters of consent have been

provided by both parties. No counsel of a party authored this brief

in whole or part, and no person other than NACDL, its members,

or its counsel made any monetary contribution intended to fund

the preparation or submission of this brief.

2

Requirement in Federal Law, at 3 (Heritage Foundation & NACDL 2010).

------------------------------------------------------------------

INTRODUCTION AND

SUMMARY OF ARGUMENT

At issue in this case is whether an individual may

be imprisoned up to ten years for possessing a firearm

or ammunition despite being unaware of the facts

making that possession unlawful.

Congress in 18 U.S.C. § 924(a)(2) specified that

“[w]hoever knowingly violates subsection . . . (g) of Section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both” (emphasis

added). Subsection (g) of Section 922, in turn, provides

that “[i]t shall be unlawful for any person” who qualifies for any of nine enumerated statuses to, among

other things, “possess in or affecting commerce, any

firearm or ammunition.”

The question presented is whether an individual

can knowingly violate Section 922(g) when he knows

that he possessed a firearm or ammunition (which is

not unlawful) but does not know that he qualifies for

one of the nine enumerated statuses (which makes his

possession unlawful). The answer is no.

One of the most fundamental precepts of our criminal justice system is that only an individual who acts

with criminal intent (mens rea or scienter) is subject

to punishment for commission of an offense. This

3

safeguard of individual liberty has endured for centuries to protect those accused of crimes from being punished for apparently innocent conduct. So essential is

the requirement of mens rea that this Court interprets

federal criminal statutes with a background presumption that such a requirement exists even when the

statutory text is silent. The presumption is particularly strong where, as here, the element at issue distinguishes innocent conduct (possession of a firearm or

ammunition) from unlawful conduct (possession of a

firearm or ammunition while being an alien illegally or

unlawfully within the United States). That the crucial

element involves the status of the accused himself provides no reason to disregard this bedrock principle of

criminal justice.

------------------------------------------------------------------

ARGUMENT

I.

MENS REA IS A FOUNDATIONAL SAFEGUARD AGAINST PUNISHMENT FOR UNKNOWINGLY UNLAWFUL CONDUCT

Criminal law “governs the strongest force that we

permit official agencies to bring on individuals.” Herbert Wechsler, The Challenge of a Model Penal Code, 65

Harv. L. Rev. 1097, 1098 (1952). Accordingly, its prohibitions, commands, and penal power “must be firmly

grounded in fundamental principles of justice.” Walsh

& Joslyn, Without Intent, at 3.

One such fundamental principle is that “wrongdoing must be conscious to be criminal.” Morissette v.

4

United States, 342 U.S. 246, 252 (1952). This idea “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 the normal individual to choose

between good and evil.” Id.; see also Edwin R. Keedy,

Ignorance and Mistake in the Criminal Law, 22 Harv.

L. Rev. 75, 81 (1908) (“It is a fundamental principle of

the criminal law, for which no authorities need be cited,

that the doer of a criminal act shall not be punished

unless he has a criminal mind.”).

This “core principle of the American system of justice” is deeply rooted in both Anglo-American law and

its classical antecedents. Edwin Meese III & Norman

L. Reiner, Foreword to Walsh & Joslyn, Without Intent,

at vi. During the Hellenistic period, for example, philosophic sects “introduced moral concepts into legislation and thereby made it necessary to distinguish

between the harmful result and the evil will” and to

cabin punishment to the latter as much as possible.

Max Radin, Criminal Intent, 7 Encyclopaedia Soc. Sci.

126, 126 (eds. Edwin R. Seligman & Alvin Johnson

1932). And, according to some scholars, criminal intent

in Roman law “has roots as ancient as the founding of

the city itself.” Eugene R. Milhizer, Justification and

Excuse: What They Were, What They Are, and What

They Ought to Be, 78 St. John’s L. Rev. 725, 756 (2004).

The necessity of criminal intent arrived in England primarily through the church. See Albert Levitt,

Origin of the Doctrine of Mens Rea, 17 Ill. L. Rev. 117,

136 (1922) (concluding that “the genesis of the modern

doctrine of mens rea is . . . the mutual influences and

5

reactions of Christian theology and Anglo-Saxon law”).

Indeed, the earliest reference to mens rea in English

law appears to be “a scrap copied in from the teachings

of the church.” Francis Bowes Sayre, Mens Rea, 45

Harv. L. Rev. 974, 983 (1932). Pentateuchal law, for example, distinguished between “ignorant” and “presumptuous” wrongs. Radin, 7 Encyclopaedia Soc. Sci.

at 126. Because church teachings established that

moral guilt should dictate punishment, and because

mental culpability is essential to moral guilt, English

criminal law began making mens rea “a factor of prime

and decisive importance in the determination of criminal responsibility.” Sayre, 45 Harv. L. Rev. at 988, 99293.

By the late seventeenth century, English law universally accepted the maxim “that an evil intent was

as necessary for [a] felony as the act itself.” Id. at 993;

see also Radin, 7 Encyclopaedia Soc. Sci. at 127. William Blackstone observed in the eighteenth century

that a “vicious will” is necessary to constitute a crime.

4 William Blackstone, Commentaries *21; see also Ann

Hopkins, Mens Rea and the Right to Trial by Jury, 76

Cal. L. Rev. 391, 394 (1988) (describing the “great deal

of consensus” about the criminal intent requirement

among the foremost English criminal law scholars of

the eighteenth century); Radin, 7 Encyclopaedia Soc.

Sci. at 129-30 (describing Enlightenment reformers as

insisting on personal guilt, which necessarily required

the presence of criminal intent).

Early American law incorporated and built on the

mens rea requirement of English law. Morissette, 342

6

U.S. at 251-52 (the concept of crime as requiring the

“concurrence of an evil-meaning mind with an evildoing hand . . . took deep and early root in American

soil”). As state legislatures codified common law

crimes, state courts inferred the presence of mens rea

requirements even where the statutes were silent. Id.

at 252; see also Radin, 7 Encyclopaedia Soc. Sci. at

126-27 (observing that “mens rea is not so readily constituted from any wrongful act” in American law as

elsewhere). This Court has recognized that “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal

jurisprudence.” United States v. U.S. Gypsum Co., 438

U.S. 422, 436 (1978) (alteration in original) (quoting

Dennis v. United States, 341 U.S. 494, 500 (1951)).

As society evolved from a retributive theory of justice toward more modern penal theories of deterrence

and rehabilitation, the importance of mens rea in criminal law increased in accordance with its centrality to

those theories. See Radin, 7 Encyclopaedia Soc. Sci. at

129 (describing deterrence as the accepted penal theory of modern communities); Morissette, 342 U.S. at

251 n.5 (recognizing reformation and rehabilitation as

important goals of criminal law). Under deterrence

theory, punishment acts “against the will of the prospective offender” and thus can be “effective only if the

offense is a matter which the will can control”—that is,

an action intended by the actor. Radin, 7 Encyclopaedia Soc. Sci. at 129. Intent likewise is essential to rehabilitation theory, as “it is only the wicked will that

can be the subject of correction and reformation.” Id.;

7

see also Morissette, 342 U.S. at 251 n.5 (modern penological goals of reformation, rehabilitation, and fitting

the punishment to the offender “would seem illusory if

there were no mental element in crime”).

Throughout these centuries of relevant history,

mens rea requirements “restricted criminal punishment to those who were truly blameworthy and gave

individuals fair notice of the law.” Walsh & Joslyn,

Without Intent, at x. By comparison, so-called “public

welfare” offenses that “depend on no mental element

but consist only of forbidden acts or omissions” are of

relatively recent vintage. Morissette, 342 U.S. at 25253; see generally Francis Bowes Sayre, Public Welfare

Offenses, 33 Colum. L. Rev. 55 (1933). But offenses that

at least appear not to require scienter have been enacted at an accelerating rate.

For example, a 2010 study conducted by amicus

NACDL in partnership with the Heritage Foundation

found that over 57 percent of the 466 non-violent

and non-drug criminal offenses considered by the

109th Congress included only a weak mens rea requirement—such as “us[ing] the terms ‘knowingly’ or

‘intentionally’ in a blanket manner or as part of the introductory language of the offense”—or none at all.

Walsh & Joslyn, Without Intent, at 12, 35. The weak or

absent mens rea requirements in proposed legislation

“appear to be related to the reckless pace of criminalization” and absence of judiciary committee oversight,

not necessarily congressional intent to eliminate the

longstanding mens rea tradition. Id. at x; see also

John S. Baker, Jr., Revisiting the Explosive Growth of

8

Federal Crimes, Heritage Foundation L. Memo. No. 26,

at 1 (June 16, 2008) (estimating that, at the end of

2007, the U.S. Code included at least 4,450 federal

crimes, of which 452 were added between 2000 and

2007).

Despite the decrease in clear mens rea requirements, this Court has been a bulwark against several

recent attempts to interpret federal criminal statutes

as criminalizing apparently innocent conduct. See, e.g.,

McFadden v. United States, 135 S. Ct. 2298, 2302

(2015) (knowing manufacture, distribution, or possession with intent to distribute controlled substances requires proving the accused knew the substance,

including an analogue, was a “controlled substance”);

Elonis v. United States, 135 S. Ct. 2001, 2011 (2015)

(prohibition against transmitting a threat requires

subjective mens rea in communicating that threat);

Flores-Figueroa v. United States, 556 U.S. 646, 647

(2009) (aggravated identity theft requires knowledge

that the identification used without lawful authority

belongs to another person). The same result is warranted here.

II.

A “KNOWING” VIOLATION OF 18 U.S.C.

§ 922(G) REQUIRES KNOWLEDGE OF THE

STATUS ELEMENT MAKING THE POSSESSION OF FIREARMS OR AMMUNITION

ILLEGAL

The interpretation of federal criminal law is primarily a matter of statutory construction. Generally,

9

“[t]he definition of the elements of a criminal offense is

entrusted to the legislature, particularly in the case of

federal crimes, which are solely creatures of statute.”

Liparota v. United States, 471 U.S. 419, 424 (1985). As

such, “determining the mental state required for commission of a federal crime requires ‘construction of the

statute and . . . inference of the intent of Congress.’ ”

Staples v. United States, 511 U.S. 600, 605 (1994)

(omission in original) (quoting United States v. Balint,

258 U.S. 250, 253 (1922)).

The statutory text provides “the starting place for

[this] inquiry,” but does not end it. Id. Rather, it is the

well-recognized and fundamental principle “that a defendant must be ‘blameworthy in mind’ before he can

be found guilty” that provides the background rule for

construing intent requirements for criminal statutes.

Elonis, 135 S. Ct. at 2009 (quoting Morissette, 342 U.S.

at 252). Relying on the “background presumption of

evil intent” arising out of the “common-law history of

mens rea,” this Court many times has “interpret[ed]

criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms

does not contain them.” United States v. X-Citement

Video, Inc., 513 U.S. 64, 70 (1994) (citing Morissette, 342

U.S. 246; Liparota, 471 U.S. 419; Staples, 511 U.S. 600).

These cases make clear that the strength of the presumption “that criminal statutes require some sort of

mens rea for conviction” overrides the Court’s ordinary

resistance to “reading words or elements into a statute

that do not appear on its face.” Elonis, 135 S. Ct. at

2014-15 (Alito, J., concurring in part and dissenting in

10

part). Instead, “some indication of congressional intent, express or implied, is required to dispense with

mens rea as an element of a crime.” Staples, 511 U.S.

at 605-06; see also Gypsum Co., 438 U.S. at 436

(“[I]ntent generally remains an indispensable element

of a criminal offense.”).

Three interpretive principles that emerge from

these background presumptions are particularly important to the question presented here. First, “courts

ordinarily read a phrase in a criminal statute that introduces a crime with the word ‘knowingly’ as applying

that word to each element.” Flores-Figueroa, 566 U.S.

at 653. Second, this Court has emphasized that “the

presumption in favor of a scienter requirement should

apply to each of the statutory elements that criminalize otherwise innocent conduct.” X-Citement Video, 513

U.S. at 72; see also Liparota, 471 U.S. at 426 (1985)

(presumption favoring a scienter requirement is particularly apt if a contrary construction would “criminalize a broad range of apparently innocent conduct”).

Finally, although the rule of lenity is inapplicable

where, as here, congressional intent to include a mens

rea requirement can be discerned, it provides a final

backstop preventing the subject statute from being interpreted as essentially a strict-liability offense. See

Liparota, 471 U.S. at 427 (“[R]equiring mens rea is in

keeping with our longstanding recognition of the principle that ‘ambiguity concerning the ambit of criminal

statutes should be resolved in favor of lenity.’ ” (quoting

Rewis v. United States, 401 U.S. 808, 812 (1971))).

11

1. When Congress prefaces the elements of an

offense with a “knowing” requirement, courts apply

that mental state to each material element. FloresFigueroa, 556 U.S. at 562; see also Liparota, 471 U.S. at

420 n.1, 433 (holding that a statute penalizing anyone

who “knowingly uses, transfers, acquires, alters, or

possesses coupons or authorization cards in any manner not authorized by [law]” required proof that the accused “knew that his acquisition or possession of food

stamps was in a manner unauthorized by the statute

or regulations”); X-Citement Video, 513 U.S. at 68, 78

(holding that a statute prohibiting knowingly transporting, shipping, receiving, or distributing any visual

depiction if the producing of such visual depiction involves the use of a minor engaging in sexually explicit

conduct requires proof the accused knew the sexually

explicit nature of the material and the age of the performers).

This rule accords with the Model Penal Code,

which is “one source of guidance upon which the Court

has relied to illuminate questions” about mens rea.

Gypsum Co., 438 U.S. at 444. In promulgating the

Model Penal Code, the American Law Institute “attempt[ed] to systematically clarify the criminal law,

particularly the role played by the mental element”

and “[c]ontinu[ed] the common law’s process of focusing on precise states of mind.” Martin R. Gardner, The

Mens Rea Enigma: Observations on the Role of Motive

in the Criminal Law Past and Present, 1993 Utah L.

Rev. 635, 684-85. The Code responds in particular to a

“pervasive ambiguity in definitions of offenses that

12

include a culpability requirement,” which is “that it is

often difficult to determine how many of the elements

of the offense the [mens rea] requirement is meant to

modify.” ALI, Model Penal Code § 2.02(4), Explanatory

Note. To provide a solution to that interpretive dilemma, the Code adopts a rule that:

When the law defining an offense prescribes

the kind of culpability that is sufficient for the

commission of an offense, without distinguishing among the material elements

thereof, such provision shall apply to all material elements of the offense, unless a contrary purpose plainly appears.

Id. § 2.02(4). The broad applicability of this rule accords with the Code’s “preference for subjective culpability,” which “reflect[s] the common law traditions of

several hundred years in assessing prima facie culpability in terms of nonnormative states of mind.” Gardner, 1993 Utah L. Rev. at 684.

Applying a leading adverb to each subsequently

listed element also generally reflects the most natural

reading of statutory language. In Flores-Figueroa, for

example, the Court found “strong textual reasons” to

interpret language penalizing one who “knowingly

transfers, possesses, or uses, without lawful authority,

a means of identification of another person” as extending only to one who “knows” the means of identification

belongs to another person. 556 U.S. at 650; see also id.

(“As a matter of ordinary English grammar, it seems

natural to read the statute’s word ‘knowingly’ as

13

applying to all the subsequently listed elements of the

crime.”).

Here, the statute similarly contains a mens rea requirement prefacing the elements of the offense. Congress provided in 18 U.S.C. § 924(a)(2) that only an

individual who knowingly violates the prohibitions in

Section 922(g) may be punished. Section 922(g) contains no separate intent requirement, but sets out the

elements of the underlying offense, which are (1) the

accused has a status listed in Section 922(g)(1)-(9); (2)

the accused later possessed a firearm or ammunition;

and (3) the possession was in or affecting interstate

commerce. In combination, these statutes “introduce[ ]

the elements of a crime with the word ‘knowingly.’ ”

Flores-Figueroa, 556 U.S. at 652. Ordinary principles

of statutory interpretation therefore provide that the

term “knowingly” should be applied to each material

element. Id.

That the scienter requirement is contained in a

separate statutory section than the elements of the

offense does not diminish the strength of this interpretation. Section 924(a)(2) prohibits “knowingly violating” Section 922(g), and a violation of Section 922(g)

can occur only if the status, conduct, and jurisdictional

elements all are met. A natural grammatical reading

thus would apply “knowingly” to each material element of the offense listed in Section 922(g). See United

States v. Games-Perez, 667 F.3d 1136, 1144 (10th Cir.

2012) (Gorsuch, J., concurring in the judgment) (in Section 922(g), “Congress gave us three elements in a particular order” so “it makes no sense to read the word

14

‘knowingly’ as so modest that it might blush in the face

of the very first element only to regain its composure

and reappear at the second”). Further, the Court in XCitement Video applied the term “knowingly” to

phrases appearing in a different subsection. 513 U.S.

at 68-73. By the same logic, “knowingly violating” a

separate section should require knowledge of the material elements defined in that section. See, e.g., United

States v. Wilson, 133 F.3d 251, 261 (4th Cir. 1997) (interpreting prohibition in Clean Water Act, 33 U.S.C.

§ 1319(c)(2)(A), against “knowingly violating” other

sections to require knowledge of each element constituting the proscribed conduct); United States v. Ahmad, 101 F.3d 383, 390 (5th Cir. 1996) (same).

2. It is particularly vital that “knowingly” be

applied to the status elements in Section 922(g)(1)-(9)

because only that status transforms otherwise innocent—indeed, constitutionally protected—activity into

felonious conduct. See, e.g., Elonis, 135 S. Ct. at 2011 (a

mental state requirement must apply to the threatening nature of a communication because it comprises

“the crucial element separating legal innocence from

wrongful conduct” (quoting X-Citement Video, 513 U.S.

at 73) (internal quotation marks omitted)); X-Citement

Video, 513 U.S. at 72 (the “presumption in favor of a

scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent

conduct”); see also Posters ‘N’ Things, Ltd. v. United

States, 511 U.S. 513, 522 (1994) (“Even statutes creating public welfare offenses generally require proof that

the defendant had knowledge of sufficient facts to alert

15

him to the probability of regulation of his potentially

dangerous conduct.”).

The Court confronted a similar question in Staples

v. United States. 511 U.S. 600 (1994). At issue in Staples was whether a violation of 26 U.S.C. § 5861(d),

which prohibits possessing an unregistered “firearm,”

requires proof that the accused knew the characteristics of the weapon that made it a “firearm” as defined

by the statute. 511 U.S. at 602-04. Invoking the “long

tradition of widespread lawful gun ownership by private individuals in this country,” the Court observed

that “guns generally can be owned in perfect innocence.” Id. at 610-11. The array of regulations governing gun ownership was not sufficient reason to

dispense with a mens rea requirement because the

Court questioned “whether regulations on guns are

sufficiently intrusive that they impinge upon the common experience that owning a gun is usually licit and

blameless conduct.” Id. at 613.

The Court had “little doubt” that the statute

should not be interpreted to “impose criminal sanctions on a class of persons whose mental state—ignorance of the characteristics of the weapons in their

possession—makes their actions entirely innocent.” Id.

at 614-15.

The potential for a ten-year sentence confirmed

the Court’s conclusion that only individuals who know

the circumstances bringing a weapon within the statute’s ambit may be convicted for its violation. Id. at

616. The Court noted that only “small penalties” are

16

typically at issue in public welfare statutes dispensing

with mens rea requirements. Id. at 616; see also Morissette, 342 U.S. at 256 (noting that courts considered the

relatively small penalties for public welfare offenses in

dispensing with mens rea requirements for those

statutes). Because “dispensing with mens rea would

require the defendant to have knowledge only of traditionally lawful conduct”—possessing a gun—“a severe

penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement.” Staples, 511 U.S. at 618.

For these reasons, the Court held that only someone with knowledge that a gun’s features brought it

within the scope of the prohibition may be convicted of

a violation. Id. at 619; see also Carter v. United States,

530 U.S. 255, 269 (2000) (describing Staples as “interpret[ing] a federal firearms statute to require proof

that the defendant knew that the weapon he possessed

had the characteristics bringing it within the scope of

the statute” for the purpose of “avoid[ing] criminalizing the innocent activity of gun ownership”).

The reasoning in Staples applies with even

stronger force here. Without knowledge of prohibited

status, an individual accused under Section 922(g) also

would know only that he or she possessed a firearm or

ammunition, which is “usually licit and blameless conduct.” Staples, 511 U.S. at 613. The penalty for violating Section 922(g) is as severe as the penalty in

Staples: up to ten years of imprisonment and a fine. 18

U.S.C. § 924(a)(2). Unlike the statute in Staples, which

lacked any prescribed mens rea requirement, here

17

Congress expressly required that a violation be committed “knowingly,” providing stronger proof of congressional intent to require knowledge of all material

elements.

Finally, since Staples, this Court has ruled that

the Second Amendment “guarantee[s] the individual

right to possess and carry weapons in case of confrontation.” Dist. of Columbia v. Heller, 554 U.S. 570, 592

(2008). Interpreting the statute to criminalize knowing

possession of a firearm or ammunition without knowing the facts of one’s status that makes the possession

unlawful would allow criminal penalties to be imposed

for the apparently innocent exercise of a constitutional

right. Such an interpretation at minimum “would raise

serious constitutional doubts.” X-Citement Video, 513

U.S. at 78. Applying the foundational principle of mens

rea to the status elements in Section 922(g) alleviates

any need to confront those constitutional questions, accords with longstanding principles of statutory interpretation, and protects fundamental fairness by

criminalizing only knowingly unlawful conduct.

3. Because traditional interpretive tools provide

an affirmative answer to the question whether “knowingly” applies to the status elements in Section 922(g),

the rule of lenity is unnecessary to decide this case.

Staples, 511 U.S. at 619 n.17. But even if the Court

deems the statute ambiguous, that “venerable rule”

supports interpreting “knowingly” to apply to the status elements in Section 922(g). United States v. Santos,

553 U.S. 507, 514 (2008) (opinion of Scalia, J.).

18

The rule of lenity provides that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Cleveland v. United States,

531 U.S. 12, 25 (2000) (quoting Rewis, 401 U.S. at 812).

In doing so, it “not only vindicates the fundamental

principle that no citizen should be held accountable for

a violation of a statute whose commands are uncertain,

or subjected to punishment that is not clearly prescribed,” but also “places the weight of inertia upon the

party that can best induce Congress to speak more

clearly and keeps courts from making criminal law in

Congress’s stead.” Santos, 553 U.S. at 514 (opinion of

Scalia, J.).

Here, traditional principles of statutory construction establish congressional intent, as described above.

But one who disagreed and sought guidance in legislative history would encounter uncertainty. Those jurists

who wade into the legislative history of the Firearms

Owners’ Protection Act, Pub. L. No. 99-308, 100 Stat.

449 (1986), the source of the applicable statutory provisions, have found “that the relevant legislative history is stocked with ample artillery for everyone.”

Games-Perez, 667 F.3d at 1144 (Gorsuch, J., concurring

in the judgment); compare, e.g., United States v. Langley, 62 F.3d 602, 605 (4th Cir. 1995) (en banc) (observing that “it is not clear from the legislative history of

FOPA whether Congress intended to extend the term

‘knowingly’ to one or all of the substantive elements

of each offense in § 922” but concluding “there is no

suggestion that Congress intended to dispense with

the judicial interpretation of § 922(g)(1)’s predecessor

19

statutes”), with id. at 613 (Phillips, J., concurring and

dissenting) (review of 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”).

If any doubt remains after “recourse to traditional

rules of statutory construction,” the rule of lenity dictates that “the tie must go to the defendant.” Yates v.

United States, 135 S. Ct. 1074, 1088 (2015); Santos, 553

U.S. at 514 (opinion of Scalia, J.). Applying this rule

“ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes the

appropriate balance between the legislature, the prosecutor, and the court in defining criminal liability.” Liparota, 471 U.S. at 427. The petitioner has shown this

statute to be at least ambiguous as to whether the government must prove that the accused knew of the status that made his otherwise innocent possession of

firearms and ammunition unlawful. The rule of lenity

requires any ambiguity to resolve in his favor.

III. THAT THE CRUCIAL ELEMENT OF THE

OFFENSE IS THE STATUS OF THE ACCUSED HIMSELF DOES NOT PERMIT

DISPENSING WITH MENS REA

Several courts of appeals tasked with interpreting

Sections 924(a)(2) and 922(g) have brushed aside the

traditional commitment to mens rea and the related

20

principles of construction adopted by this Court. Rather, they reasoned that the presumption favoring

mens rea does not apply if the element at issue concerns the status of the accused himself. See, e.g., Pet.

App. 15a-17a; United States v. Capps, 77 F.3d 350, 353

(10th Cir. 1996); Langley, 62 F.3d at 607. There is no

basis for such an exception, which undermines the

well-established protection of mens rea and which precludes accused individuals from presenting evidence

showing they were unaware of the circumstances making their otherwise innocent possession of firearms or

ammunition unlawful.

1. Although felon-in-possession prosecutions are

by far the majority under Sections 924(a)(2) and

922(g), individuals assigned numerous other statuses

likewise are prohibited from possessing firearms or

ammunition. These include being a fugitive from justice, being an unlawful user of or addicted to any controlled substance, being adjudicated as a mental

defective or committed to a mental institution, being

discharged from the Armed Forces under dishonorable

conditions, having renounced one’s citizenship, being

subject to a restraining order, being convicted of a misdemeanor crime of domestic violence, being an alien

admitted to the United Sates under a nonimmigrant

visa, and—the status at issue here—being an alien illegally or unlawfully in the United States. 18 U.S.C.

§ 922(g)(2)-(9).

Basic principles of statutory construction require

“knowingly” to be applied the same way to each status

listed as a subsection of Section 922(g). See Ratzlaf v.

21

United States, 510 U.S. 135, 143 (1994) (recognizing

that “a single formulation” should be construed “the

same way each time it is called into play”); United

States v. Stein, 712 F.3d 1038, 1041 (7th Cir. 2013)

(“[T]here is no reason to think Congress intended

‘knowingly’ to mean different things for different subsections of § 922(g).”); United States v. Butler, 637 F.3d

519, 524 (5th Cir. 2011) (same); United States v.

Sherbondy, 865 F.2d 996, 1002 (9th Cir. 1988) (same).

For some subsections of Section 922(g), courts

have applied the “knowing” requirement to the circumstances comprising the prohibited status. See, e.g.,

United States v. Bostic, 168 F.3d 718, 723 (4th Cir.

1999) (rejecting due process challenge to 18 U.S.C.

§ 922(g)(8) conviction because defendant “was aware

that he possessed a firearm” and “was also aware that

he was subject to a domestic violence restraining order

which included a finding that he represented a physical threat” to others “and prohibited him from abusing”

them); United States v. Allen, No. 96-5694, 129 F.3d

1265 (6th Cir. 1997) (Tbl.) (evidence sufficient to show

knowledge of involuntary commitment to a mental institution under 18 U.S.C. § 922(g)(4)); United States v.

Ballentine, 4 F.3d 504, 506 (7th Cir. 1993) (conviction

for possessing firearms while a fugitive requires

“know[ing] that charges are pending against him, that

he has refused to answer to those charges and that he

has left the jurisdiction where the charges are pending”); see also United States v. Cook, 914 F.3d 545, 55051 (7th Cir. 2019) (conviction for possessing firearms

as an unlawful user of or addict to unlawful substances

22

not impermissibly vague in part because it requires

“knowledge of the facts that constitute the offense”);

cf. United States v. Renner, 496 F.2d 922, 926 (7th Cir.

1974) (under predecessor statute, conviction for possessing a firearm while being a person under indictment requires knowledge of the indictment). But see,

e.g., Butler, 637 F.3d at 524 (knowledge of dishonorable

discharge not required for conviction under 18 U.S.C.

§ 922(g)(6)).

Because “knowingly” applies identically to each

prohibited status enumerated under Section 922(g), requiring knowledge of involuntary commitment or the

facts underlying fugitive status means knowledge of

the facts underlying unlawful presence in the United

States likewise should be required. But if the judgment

of the court of appeals is affirmed and punishment can

be imposed without any showing that the accused

knew his presence in the United States was illegal or

unlawful, a wide swath of apparently innocent conduct

would be punishable by up to ten years’ imprisonment.

Such a result runs counter to fundamental fairness

and the longstanding role of mens rea as protection

against punishment for unknowingly unlawful conduct.

2. The “purpose and obvious effect of doing away

with the requirement of a guilty intent is to ease the

prosecution’s path to conviction.” Morissette, 342 U.S.

at 263. But that purpose should not be imputed when

“it would mean easing the path to convicting persons

whose conduct would not even alert them to the probability of strict regulation.” Staples, 511 U.S. at 616.

23

Here, the relevant conduct—possessing a firearm

or ammunition—is not only innocent but constitutionally protected. See Heller, 554 U.S. at 592; Staples, 511

U.S. at 610-11. And although individuals with at least

some of the statuses enumerated in Section 922(g)

might reasonably anticipate heightened regulation of

their firearm possession, they only can do so if they

have knowledge of their prohibited status. See United

States v. Kitsch, No. 03-cr-594, 2008 WL 2971548, at *5

(E.D. Pa. Aug. 1, 2008) (“Only a knowing felon can reasonably expect to be subject to additional regulation.”).

Most people prosecuted for violations of Section

922(g) may well be aware of their prohibited status.

But that supplies no reason to criminalize the innocent

conduct of those who lack such awareness. Individuals

who, for example, do not receive notice of dishonorable

discharge, see Butler, 637 F.3d at 524; are told a conviction is a misdemeanor, not a felony; unknowingly leave

the jurisdiction where charges against them are pending; or have the mistaken impression they were born

in the United States when in fact they were brought

here unlawfully by their parents should not face up to

ten years in prison for possessing a firearm or ammunition. And at minimum they are entitled to make the

case to the jury that they lacked knowledge of the circumstances that criminalized their otherwise innocent

possession of a firearm.

This Court in other contexts has declined to dispense with mens rea requirements when the Government argues they make prosecution too difficult. See,

24

e.g., Flores-Figueroa, 556 U.S. at 656-57; Staples, 511

U.S. at 615 n.11. There is still less reason to dispense

with mens rea where the accused’s knowledge of his

prohibited status may be easy to establish in the mine

run of cases. And when such knowledge is difficult to

establish, that suggests the accused may well be ignorant of “the crucial element separating legal innocence

from wrongful conduct,” Elonis, 135 S. Ct. at 2011—the

exact scenario in which a scienter requirement is most

needed. This is especially important for issues of immigration law, which is “complex” and “a legal specialty

of its own.” Padilla v. Kentucky, 559 U.S. 356, 369

(2010).

An individual facing up to ten years in prison for

“knowingly” violating Section 922(g) must be allowed

to argue to the jury that he in fact was unaware of the

circumstances making his possession of firearms or

ammunition unlawful.

------------------------------------------------------------------

25

CONCLUSION

For the foregoing reasons, the Court should interpret “knowingly” as applying to the status elements in

18 U.S.C. § 922(g). The judgment should be reversed.

Respectfully submitted,

THOMAS W. HILLIER, II

Counsel of Record

ERIN K. EARL

PERKINS COIE LLP

1201 Third Avenue,

Suite 4900

Seattle, WA 98101

DAVID OSCAR MARKUS

Co-Chair, Amicus Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

40 NW 3rd Street, PH1

Miami, FL 33128

ANNA C. MOURLAM

PERKINS COIE LLP

3150 Porter Drive

Palo Alto, CA 94304

Counsel for Amicus Curiae National Association

of Criminal Defense Lawyers

March 1, 2019