Amicus Curiae Brief — Eddie Lee Shular, Petitioner v. United States

NO. 18-6662

In the Supreme Court of the United States

EDDIE LEE SHULAR,

Petitioner,

v.

UNITED STATES,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

BRIEF OF AMICI CURIAE

AMERICAN IMMIGRATION LAWYERS ASSOCIATION,

CATHOLIC LEGAL SERVICES,

ARCHDIOCESE OF MIAMI, AND

AMERICANS FOR IMMIGRANT JUSTICE,

IN SUPPORT OF PETITIONER

MICHAEL S. VASTINE

COUNSEL OF RECORD

PROFESSOR OF LAW

DIRECTOR, IMMIGRATION CLINIC

ST. THOMAS U. SCHOOL OF LAW

16401 NW 37TH AVENUE

MIAMI GARDENS, FL 33054

(305) 623-2340

MVASTINE@STU.EDU

SUI CHUNG

IMMIGRATION LAW

& LITIGATION GROUP

3250 GRAND AVENUE

MEZZANINE ONE, SUITE 201

MIAMI, FL 33133

(305) 444-4027

IRA J. KURZBAN

EDWARD RAMOS

ELIZABETH MONTANO

KURZBAN, KURZBAN,

TETZELI & PRATT, P.A.

131 MADEIRA AVENUE

CORAL GABLES, FL 33134

(305) 444-0060

COUNSEL FOR AMICI CURIAE

OCTOBER 2, 2019

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY

OF THE ARGUMENT.......................................... 3

ARGUMENT ............................................................. 10

I.

CONGRESS’ INTENDED MEANING OF ITS TERM

“SERIOUS DRUG OFFENSE” IS PRESUMED TO

BE CONSISTENT WITH THE PREVAILING

NATIONAL NORMS OF TERMS, AT THE TIME

CONGRESS USED THEM IN 1986 EVERY

JURISDICTION HAD A MENS REA REQUIREMENT IN DRUG SALE OFFENSES ....................... 10

II. SMITH AND THE DECISION BELOW ARE

CONTRARY TO THE COURT’S CONSISTENT

READING OF MENS REA ELEMENTS INTO

STATUTES, EXCEPT WHERE CONGRESS HAS

EXPLICITLY STATED OTHERWISE ...................... 13

III. SINCE AT LEAST 1952, THIS COURT HAS

INTERPRETED FEDERAL DRUG OFFENSES TO

INCLUDE A MENS REA ELEMENT, AND

CONGRESS RELIED ON THE COURT’S MODERN

HOLDINGS IN AMENDING THE ACCA IN 1986 .... 17

IV. SMITH AND THE DECISION BELOW MUST BE

REVERSED AS CONTRARY TO THE STATUTE

AND THE PRECEDENT OF THE COURT ............... 20

CONCLUSION.......................................................... 22

ii

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

CASES

Page

Burnette v. State,

901 So.2d 925 (Fla. Dist. Ct. App. 2005)........... 5, 6

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

Inc., 467 U.S. 837 (1984) ....................................... 8

Chicone v. State,

684 So.2d 736 (Fla. 1996) .................................... 3

Choizilme v. U.S. Att’y Gen.,

886 F.3d 1016 (11th Cir. 2018) ......................... 8

Dawkins v. State,

313 Md. 638 (Md. 1988) .................................. 4, 11

Dean v. United States,

556 U.S. 568 (2008) ..................................... 13, 21

Descamps v. United States,

570 U.S. 254 (2013) ........................................... 12

Donawa v. U.S. Att’y Gen.,

735 F.3d 1275 (11th Cir. 2013) ........................... 5

Elonis v. United States,

135 S.Ct. 2001 (2015) ......................... 7, 15, 16, 21

Esquivel-Quintana v. Sessions,

137 S.Ct. 1562 (2017) ................................... passim

Flores-Figueroa v. United States,

556 U.S. 646 (2009) ........................................... 14

Global-Tech Appliances, Inc. v. SEB S.A.,

563 U.S. 764 (2011) ............................................ 14

Gonzalez v. Duenas-Alvares,

549 U.S. 183 (2007) ............................................. 12

iii

TABLE OF AUTHORITIES—Continued

Page

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) .............................. 8

In re Hill,

715 F.3d 184 (11th Cir. 2013) ............................. 20

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) ............................................ 20

Liparota v. United States,

471 U.S. 419 (1985) ............................................. 14

Loughrin v. United States,

573 U.S. 351 (2014) ...................................... 14, 15

Mathis v. United States,

136 S.Ct. 2243 (2016) .................................. 12, 21

McFadden v. United States,

135 S.Ct. 2298 (2015) .............................. 6, 11, 16

Miller v. State,

35 So.3d 162 (Fla. Dist. Ct. App. 2010) ........... 5, 6

Morissette v. United States,

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

Pereira v. Sessions,

138 S.Ct. 2105 (2018) .......................................... 8

Rosemond v. United States,

572 U.S. 65 (2014) ............................................. 14

Sarmientos v. Holder,

742 F.3d 624 (5th Cir. 2014) ............................... 5

Scott v. State,

Slip Opinion No. SC94701 (Fla. 2002)................ 3

iv

TABLE OF AUTHORITIES—Continued

Page

Shelton v. Sec’y, Dep’t of Corr.,

691 F.3d 1348 (11th Cir. 2012) ............................ 4

Staples v. United States,

511 U.S. 600 (1994) ................................... 3, 13, 21

State v. Adkins,

96 So.3d 412 (Fla. 2012) ............................ 4, 11, 20

State v. Cleppe,

96 Wn.2d 373 (Wash. 1981) .......................... 5, 11

Taylor v. United States,

495 U.S. 575 (1990) ............................................. 12

United States v. Balint,

258 U.S. 250 (1922) ......................... 16, 17, 18, 19

United States v. Cordoba-Hincapie,

825 F.Supp. 485 (E.D.N.Y. 1993) ...................... 18

United States v. Gonzalez-Lopez,

548 U.S. 140 (2006) ..................................... 13, 20

United States v. Smith,

775 F.3d 1262 (11th Cir. 2014) .................. passim

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

513 U.S. 64 (1994) ................................. 14, 16, 21

FEDERAL STATUTES

8 U.S.C. § 1101(a)(43)(A) .......................................... 11

8 U.S.C. § 1101(a)(43)(B) ............................................ 7

18 U.S.C. § 924(e)...................................................... 12

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

v

TABLE OF AUTHORITIES—Continued

Page

18 U.S.C. § 924(e)(2)(A) .............................................. 6

21 U.S.C. § 801 et seq. .................................. 11, 19, 20

21 U.S.C. § 813 .................................................... 11, 20

21 U.S.C. § 841(a)(1) ................................................. 16

21 U.S.C. § 848(e)...................................................... 18

21 U.S.C. § 941(a) ....................................................... 5

21 U.S.C. § 942(e)(2) ................................................. 20

21 U.S.C. § 960 .......................................................... 18

Armed Career Criminal Act ............................... passim

Harrison Narcotic Tax Act (1914) ............................... 17

Uniform Controlled Substances Act ..................... 11, 19

STATE STATUTES

Fla. Stat. § 893.101 ............................................. passim

Fla. Stat. § 893.101(2)................................................... 3

Fla. Stat. § 893.101(3)................................................. 4

Fla. Stat. § 893.13 ....................................................... 5

Fla. Stat. § 893.13(1)(a)(1) .......................................... 14

JUDICIAL RULES

Sup. Ct. R. 37.6............................................................. 1

vi

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

1 W. LaFave,

SUBSTANTIVE CRIMINAL LAW

(2d ed. 2003)........................................................ 16

Lisa N. Sacco,

Cong. Research Serv., R43749,

Drug Enforcement in the United States:

History, Policy, and Trends (2014) ................... 17

1

INTEREST OF AMICI CURIAE1

The American Immigration Lawyers Association

(“AILA”) is a national association with more than

15,000 members throughout the United States, including lawyers and law school professors who practice

and teach in the field of immigration and nationality

law. AILA seeks to advance the administration of law

pertaining to immigration, nationality, and naturalization to cultivate the jurisprudence of the immigration laws and to facilitate the administration of justice

and elevate the standard of integrity, honor, and

courtesy of those appearing in a representative capacity

in immigration and naturalization matters. AILA’s

members practice regularly before the Department of

Homeland Security (“DHS”), immigration courts, and

the Board of Immigration Appeals (“BIA”), as well as

before the United States District Courts, Courts of

Appeals, and this Court. AILA members regularly

litigate cases involving the application of the categorical approach to state statutes, including the specific

Florida statute involved in this case.

Catholic Legal Services, Archdiocese of Miami, Inc.

(“CLS”), a not-for-profit corporation, is the largest

provider of pro bono and low-cost immigration services

1 The Petitioner has filed a blanket consent with the Court. Amici

curiae have filed, concurrent with this brief, the written consent to

file from Respondent. Under Supreme Court Rule 37.6, amici curiae

state that no counsel for a party authored this brief in whole or in

part, and no persons other than amici curiae and their counsel

made any monetary contribution intended to fund the preparation

and submission of this brief.

2

in Florida. Nearly two thousand immigrants, migrants

and refugees seek the services of CLS each month.

Many of these include foreign nationals who face

deportation because of the immigration consequences

of their criminal convictions, the proper assessment of

which is the dispositive factor in the immigrant’s

eligibility to remain in the United States. CLS has

engaged in the nuance of Fla. Stat. § 893.101. CLS has

a substantial interest in the issue before the Court, in

its advocacy role promoting fair and accurate administration of our immigration and criminal laws, as a

leader and educator of the immigration bar, and as a

provider of direct services to indigent immigrants, some

of whom comprise a subset of the Florida defendants

affected—in both criminal and removal proceedings—

by the Florida statute at issue in this case.

Americans for Immigrant Justice (“AI Justice”)

is a non-profit law firm dedicated to promoting and

protecting the basic rights of immigrants. Since its

founding in 1996, AI Justice has served over 100,000

immigrants from all over the world. AI Justice’s clients

include unaccompanied immigrant children survivors

of domestic violence, sexual assault, and human trafficking and their children immigrants who are

detained and facing removal proceedings as well as

immigrants seeking assistance with work permits,

legal permanent residence, asylum and citizenship. In

Florida and on a national level, AI Justice champions

the rights of immigrants serves as a watchdog on

immigration detention practices and policies and

speaks for immigrant groups that have particular and

compelling claims to justice. As a provider of direct

legal services to many in Florida’s immigrant community, AI Justice represents individuals in removal

3

proceedings, for whom the consequences of a criminal

conviction are significant. For this reason, the determination of the issue before the Court in this case,

can profoundly impact AI Justice’s work on behalf of

its clients.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

“[T]he requirement of some mens rea for a crime

. . . is the rule of, rather than the exception to, AngloAmerican criminal jurisprudence.” Staples v. United

States, 511 U.S. 600, 605 (1994). When it comes to state

statutes penalizing the sale of controlled substances,

Florida is decidedly the exception among the States,

Florida alone presumes a culpable mens rea regarding

the illicit nature of a controlled substance. See Fla.

Stat. § 893.101(2)(2002).2 Under this statute, innocence

2 Fla. Stat. § 893.101 (2002) states the following

The Legislature finds that the cases of Scott v.

State, Slip Opinion No. SC94701 (Fla. 2002) and

Chicone v. State, 684 So.2d 736 (Fla. 1996), holding

(1)

that the state must prove that the defendant knew of

the illicit nature of a controlled substance found in

his or her actual or constructive possession, were

contrary to legislative intent.

(2) The Legislature finds that knowledge of the illicit

nature of a controlled substance is not an element of

any offense under this chapter. Lack of knowledge of

the illicit nature of a controlled substance is an

affirmative defense to the offenses of this chapter.

(3) In those instances in which a defendant asserts

the affirmative defense described in this section, the

4

is an affirmative defense, which triggers a reiterated

presumption of guilt if raised. See Fla. Stat. § 893.

101(3).

Since Florida created this unique scheme in 2002,

the statute has been the subject of extensive litigation

in the constitutional,3 criminal, and immigration

arenas. The case before the Court presents another

step toward resolving the consequences of Florida’s

election to diverge from centuries of criminal norms

by presuming a culpable mens rea.

***

It is uncontroverted that Florida is the only

jurisdiction in the country to presume culpable mens

rea regarding the illicit nature of a controlled substance in criminal prosecutions for drug sales. See

Brief of Petitioner, at App. (canvassing state jurisdictions) see also State v. Adkins, 96 So.3d 412, 423

(Fla. 2012) (noting that Washington state has a similar

statute for drug possession, only) Dawkins v. State,

313 Md. 638, 646-49 & n.6-8 (Md. 1988) (listing cases

possession of a controlled substance, whether actual

or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature

of the substance. It is the intent of the Legislature

that, in those cases where such an affirmative defense

is raised, the jury shall be instructed on the permissive presumption provided in this subsection.

3 See Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348, 1354-55 (11th

Cir. 2012) (reversing the district court’s finding of unconstitutionality and holding that under AEDPA, deference to the state

supreme court and state legislature are required, absent controlling Supreme Court precedent) see also State v. Adkins, 96 So.3d

412 (Fla. 2012) (rejecting due process challenge).

5

and statutes) State v. Cleppe, 96 Wn.2d 373 (Wash.

1981) (same).

Since the scheme’s enactment in 2002, Florida

courts have predictably and consistently reiterated that

culpable mens rea of illicitness is always presumed.

See, e.g., Miller v. State, 35 So.3d 162, 163 (Fla. Dist.

Ct. App. 2010) (“To prove a cocaine possession charge,

the state must prove that the defendant knew that he

possessed a substance, which was in fact cocaine, but

the state does not have to prove that the defendant

knew it was cocaine. Instead, the defendant may

raise by affirmative defense the claim that he did not

know the substance was cocaine.”) (emphasis added)

Burnette v. State, 901 So.2d 925, 927 (Fla. Dist. Ct.

App. 2005) (“A defendant charged under section 893.13

can concede all the elements of the offense, i.e.,

possession of a specific substance and knowledge of

the presence of the substance, and still be able to

assert the defense that he did not know of the illicit

nature of the specific substance.”) (emphasis added).

Of course, the existence of the affirmative offense does

not establish the element of mens rea. See Donawa v.

U.S. Att’y Gen., 735 F.3d 1275, 1283 (11th Cir. 2013).

***

In 2013, the Eleventh Circuit recognized that

Florida’s reversal of the mens rea presumption in Fla.

Stat. § 893.101 is dissonant with the federal offense

of sale of a controlled substance, 21 U.S.C. § 941(a).

See Donawa, supra. Shortly thereafter, the Fifth

Circuit followed suit. Sarmientos v. Holder, 742 F.3d

624, 630-31 (5th Cir. 2014) (following Donawa).

These outcomes are clearly correct, as this Court

unanimously held that the federal offense does have

6

a mens rea element requiring that defendants either

knew the identity of the drug involved or knew that

the substance they possessed (perhaps with the exact

identity unknown) was listed on the federal schedules

of controlled substances and their analogues. See

McFadden v. United States, 135 S.Ct. 2298 (2015) cf.

Miller, supra Burnette, supra.4

***

Because the current Florida scheme clashes with

both the federal scheme and the schemes of the 49

other states, the implications of this divergence have

been and continue to be explored through various

litigation. The Eleventh Circuit has addressed two of

those questions thus far. First, the court held that

the terms “serious drug offense[s]” and “controlled

substance offenses” under the Armed Career Criminal

Act (“ACCA”) sentencing provision at 18 U.S.C. § 924

(e)(2)(A) do not include a mens rea element

No element of mens rea with respect to the

illicit nature of the controlled substance is

expressed or implied by either definition. We

look to the plain language of the definitions

to determine their elements, and we presume

that Congress and the Sentencing Commission

“said what [they] meant and meant what

[they] said.”

4 In McFadden, Chief Justice Roberts issued a separate opinion

suggesting the federal offense requires an even higher standard,

that “a defendant needs to know more than the identity of the

substance he needs to know that the substance is controlled.”

McFadden, 135 S.Ct. at 2307 (Roberts, C.J., concurring in part

and concurring in the judgment).

7

United States v. Smith, 775 F.3d 1262, 1267 (11th Cir.

2014) (internal citation omitted).

In other words, the Eleventh Circuit believed that,

to impose a mens rea requirement, Congress would

have had to affirmatively say so. Thus, the court found

Florida convictions constituted predicate offenses for

federal sentencing purposes, notwithstanding the Fla.

Stat. § 893.101 elimination of the traditional mens

rea requirement that contributed to those convictions.

In so holding, the Eleventh Circuit failed to apply

(or at least distinguish) this Court’s precedent requiring

the opposite. See, e.g., Elonis v. United States, 135 S.Ct.

2001, 2009 (2015) (quoting Morissette v. United States,

342 U.S. 246, 250 (1952)) (“We have repeatedly held

that ‘mere omission from a criminal enactment of

any mention of criminal intent’ should not be read ‘as

dispensing with it.’”).

Next, the Eleventh Circuit held that 8 U.S.C.

§ 1101(a)(43)(B)’s term “illicit trafficking in a controlled substance,” as added to the Immigration and

Nationality Act in 1990, also does not require an

element of mens rea to trigger aggravated felony

treatment, accepting the argument that

[T]here was no reason to believe that Congress

intended to impose a specific mens rea

requirement, and thereby exclude state drugtrafficking crimes from the aggravated-felony

definition solely because they did not require

knowledge of the illicit nature of the substance involved.

8

Choizilme v. U.S. Att’y Gen., 886 F.3d 1016, 1024 (11th

Cir. 2018). In a seemingly assailable opinion,5 the

Circuit deferred to an agency interpretation of the

federal statute, rather than defining the statutory

term itself, ostensibly per “principles of deference

articulated in Chevron, U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984).” See Choizilme, 886

F.3d at 1022.

Neither Smith nor Choizilme offered any further

analysis of the statute or any canvassing of the

5 In Choizilme, the absence of a Florida mens rea requirement

should have led to a holding in favor of the petitioner, at Chevron

“step one.” The Court has recently directed that Chevron does not

invite agency interpretation at every turn, noting that “the type

of reflexive deference exhibited in some . . . cases is troubling.”

Pereira v. Sessions, 138 S.Ct. 2105, 2120 (2018) (Kennedy, J.,

concurring). The Court has indicated it will not defer to an agency,

per Chevron, where “the statute, read in context, unambiguously

forecloses the [agency’s] interpretation.” Esquivel-Quintana v.

Sessions, 137 S.Ct. 1562, 1572 (2017) (noting that although a term

may not be defined in a specific statutory section, the BIA and the

courts should use prevailing definitions of terms to determine

what Congress meant, at the time of passing the legislation).

In 2016, then-Circuit Judge Gorsuch further explained that

proper checks and balances are compromised where courts do not

determine the meaning of statutory language, but instead defer

to agency interpretation

The problem remains that courts are not fulfilling

their duty to interpret the law and declare invalid

agency actions inconsistent with those interpretations in

the cases and controversies that come before them

[ . . . ] [made] by an avowedly politicized administrative

agent seeking to pursue whatever policy whim may

rule the day.

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1153 (10th Cir. 2016)

(Gorsuch, concurring).

9

national norms at the time of the enactment of the

relevant statute. Of course, in 1986 and in 1990 (the

relevant dates for those inquiries), precisely zero (0)

jurisdictions—federal or state—reversed the presumption of criminal mens rea in drug sale offenses, so

Congress could not have imagined a world in which

its laws—and heavy sanctions—would be applied to

conduct criminalized with no mens rea element.

This case arises in the ACCA context and was

resolved below by the application of Smith, the

binding precedent of the Eleventh Circuit.

Part I of this brief will address the need for the

Court to discover Congress’s intended meaning in the

statutory language of § 924(e)(2) to determine the

“generic” elements of the offense for application of

the “categorical approach.” Amici suggest that to find

this answer, the Court should apply its well-established

principles requiring canvassing the national norm in

1986, at the time of Congress’ enactment of the ACCA

sentencing enhancement.

Part II and III of this brief will address the Court’s

consistent history of incorporating mens rea elements

into ambiguous statutes. It will further review the

limited and archaic circumstance in which the Court

did not invoke mens rea, which is inapplicable to the

modern ACCA sentencing scheme.

Part IV will apply Parts I-III to the statutes at

issue. Because mens rea elements are such a settled

and expected aspect of criminal law, particularly in

controlled substance offenses, and because this Court

has consistently required mens rea requirements to

be read into ambiguous statutes, the Eleventh Circuit

was wrong to hold that the absence of an explicit mens

10

rea element in the ACCA reflected Congress’s intent

to eliminate such an element.

ARGUMENT

I.

CONGRESS’ INTENDED MEANING OF ITS TERM

“SERIOUS DRUG OFFENSE” IS PRESUMED TO BE

CONSISTENT WITH THE PREVAILING NATIONAL

NORMS OF TERMS AT THE TIME CONGRESS USED

THEM; IN 1986 EVERY JURISDICTION HAD A MENS

REA REQUIREMENT IN DRUG SALE OFFENSES.

This Court has held that to determine congressional understanding of the terms it used in a criminal

statute, i.e. the elements of “the generic offense,” it

canvasses the prevailing national norms at the time

that Congress used the term. See Esquivel-Quintana,

137 S.Ct. 1562 (2017). Relevant here is the term “serious drug offense,” as used in § 924(e)(2), and whether

a state conviction constitutes a predicate offense for a

sentence enhancement. The specific issue is whether

the federal courts are free to interpret a federal

statute in such a way that negates a mens rea element, and in doing so deviate from the unanimous

contemporary national consensus on a term’s meaning

at the time of congressional usage of the term, absent

express congressional intent.

In 1986, when Congress enacted § 924(e)(2) and

listed “serious drug offenses” as a basis for a sentence

enhancement, every jurisdiction in the country imposed

an element of mens rea in its respective offenses for

11

unlawful sale of controlled substances.6 Indeed, Florida

did not break from this norm until 2002 and remains

the sole jurisdiction to do so. See Adkins, supra, Dawkins, supra, Cleppe, supra (canvassing the 50 states)

Brief of Petitioner, at App. (canvassing state jurisdictions).

The Florida offense is the lone outlier that presumes culpability in such violations—the very definition of “non-generic” according to the canvassing

requirement of Esquivel-Quintana, supra. In EsquivelQuintana, the Court analyzed whether a state offense

constituted generic “sexual abuse of a minor.” See 8

U.S.C. § 1101(a)(43)(A). Like the “serious drug offenses”

provision at issue here, the “sexual abuse of a minor”

provision describes a category of crimes, rather than

a specific crime (e.g. “burglary”). To define the contours of the offense, the unanimous Court examined

how the term “minor” was defined in 1996—the year

Congress enacted the “sexual abuse of a minor” provision. Noting that “[a] significant majority of jurisdictions” set the age of consent at 16, the Court

concluded that Esquivel-Quintana “‘show[ed] something

special about California’s version of the doctrine’”—

namely, that the age of consent is 18, rather than 16.

6 Those jurisdictions include not only the laws of the 50 states, but

also federal statutes. See Controlled Substances Act of 1970

Controlled Substances Analogue Enforcement Act of 1986 (both

requiring element of mens rea) see also McFadden, 135 S.Ct.

2298 (imputing mens rea requirement, regarding either the identity

or illicit nature of substance or analogue involved, to federal offense

where federal statute was silent). Further, the Uniform Controlled

Substances Act also required mens rea regarding the illicit nature of

the drug involved. See Article 401, Uniform Controlled Substances

Act.

12

Esquivel-Quintana, 137 S.Ct. at 1572 (emphasis omitted) (quoting Gonzalez v. Duenas-Alvares, 549 U.S.

183, 191 (2007)). Consequently, he needed “no more

to prevail.” Id. That was so even though at the time,

ten jurisdictions set the age of consent at 18. The

Florida scheme here is thus even more “special” than

the statute at issue in Esquivel-Quintana, since no

jurisdiction in the United States presumed a culpable

mens rea when the “serious drug offenses” provision

was enacted.

Finally, in the foundational case on this subject,

this Court established why the Circuit was wrong to

defer to a state standard instead of a uniform generic

definition

It seems to us to be implausible that Congress intended the meaning of “burglary” for

purposes of § 924(e) to depend on the definition adopted by the State of conviction.

Taylor v. United States, 495 U.S. 575, 590 (1990).7 It is

bedrock principle that the Court does not prioritize

7 Repeated precedent of the Court, applying Taylor, further

illustrates the fallacy of the Eleventh Circuit’s willingness to

eliminate elements of “generic” crimes in order for state offenses to

trigger federal sentencing treatment. Under the Smith logic, a

federal enhancement for “burglary” would apply to state offenses

that lacked elements of “unlawful entry” or a necessary relation

to a “structure,” if Congress did not explicitly enumerate elements of

“burglary” when it utilized the term. In addition to Taylor, this

Court rejected those ideas in Descamps v. United States, 570 U.S.

254 (2013), and Mathis v. United States, 136 S.Ct. 2243 (2016),

both of which held that a state offense must match the elements

of the federal generic crime to trigger sentence enhancement.

Similarly, federal deportability as “aggravated felonies” would

attach to state simple possession cases, if the state treated this

13

state definitions over uniform federal standards

derived from the statutory text and prevailing national

norms.

II.

SMITH AND THE DECISION BELOW ARE CONTRARY

TO THE COURT’S CONSISTENT READING OF MENS

REA ELEMENTS INTO STATUTES, EXCEPT WHERE

CONGRESS HAS EXPLICITLY STATED OTHERWISE.

There is no basis to conclude that in enacting

§ 924(e)(2), Congress intended to eliminate the mens

rea requirement for convictions to trigger a sentencing

enhancement as “serious drug offenses.” Congress is

free to define a federal crime in an unexpected way. See

Lopez, 548 U.S. at 54. But to use a counterintuitive

or unorthodox definition, “Congress would need to

tell us so.” See id. Here, “there are good reasons to

think it was doing no such thing,” and that in no way

did Congress implicitly eliminate culpable mens rea

for predicate convictions when creating the sentencing

enhancement for prior “serious drug offenses” in the

ACCA. See id. at 54-55.

A culpable mind is so central to Anglo-American

jurisprudence that this Court has consistently found

that mens rea requirements must be read into (and

not implicitly read out of) statutes that are otherwise

silent regarding scienter. See, e.g., Dean v. United

States, 556 U.S. 568, 575 (2008) (citing Staples, 511

U.S. at 606, for the principle that “[s]ome indication of

congressional intent, express or implied, is required

to dispense with mens rea as an element of a crime.”).

conduct as a felony. This Court rejected that state-centric logic

in Lopez, supra.

14

The Court has further instructed that courts must

ordinarily read each phrase in a federal statute

enumerating elements of a crime as if the word

“knowingly” applied to each element. See FloresFigueroa v. United States, 556 U.S. 646, 652 (2009)

(citing United States v. X-Citement Video, Inc., 513

U.S. 64, 79 (1994) (Stevens, J., concurring) (applying

same in context of transmission of sexually illicit

materials), and referencing Liparota v. United States,

471 U.S. 419 (1985) (applying the “intent must

adhere to each element” concept to food stamp fraud)).8

The Court has further consistently crafted implicit

mens rea requirements in a wide variety of federal

criminal9 statutes, including firearms offenses, Rosemond v. United States, 572 U.S. 65 (2014) (imputing

a mens rea requirement of knowing that a conspirator

would have a gun, in order to be convicted of aiding

and abetting a firearm offense) to fraud crimes, Loughrin v. United States, 573 U.S. 351 (2014) (imputing an

intent—specifically, the purpose to defraud a bank—

8 Flores-Figueroa is particularly instructive because the statute at

issue required an element of intentional possession of a false

document, but not an element of knowledge that the identification

was real (or that it related to a real person), which is dispositive

in the criminality of the action. Flores-Figueroa, at 656-57. This

is directly analogous to the Fla. Stat. § 893.101 scheme at issue

here, where a defendant is proven to knowingly have something, but

is never proven culpable of knowing the identity or illicit nature of

that something. See, e.g., Fla. Stat. § 893.13(1)(a)(1) cf. Fla. Stat.

§ 893.101.

9 The Court has also imputed a mens rea element into civil statutes.

See, e.g., Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 764

(2011) (imputing a “willful blindness” requirement into an element

of a patent infringement statute that was silent on mens rea).

15

to a fraudulent check scheme facially ambiguous on

whether the ultimate victim is intentionally a financial

institution), but only imputing a lesser-than-full mens

rea requirement because the statute elsewhere contained a traditional element establishing that the

defendant was willfully culpable of reprehensible

criminal activity) see also Loughrin, at 371 (Alito, J.,

concurring in part and in the judgment) (critically

noting that this aspect of the holding was dicta and

that the higher mens rea of “willfulness” should be

imputed to all facially ambiguous elements in future

cases).

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

in the context of interstate threats via the internet,

Chief Justice Roberts reiterated “the basic principle

that ‘wrongdoing must be conscious to be criminal,’

and that a defendant must be ‘blameworthy in mind’

before he can be found guilty,” further expounding

for the unanimous court

The fact that the statute does not specify any

required mental state, however, does not

mean that none exists. We have repeatedly

held that “mere omission from a criminal

enactment of any mention of criminal intent”

should not be read “as dispensing with it.”

Morissette v. United States, 342 U.S. 246,

250 (1952). This rule of construction reflects

the basic principle that “wrongdoing must

be conscious to be criminal.” Id., at 252.

[...]

The “central thought” is that a defendant

must be “blameworthy in mind” before he

can be found guilty, a concept courts have

16

expressed over time through various terms

such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. Id.,

at 252 1 W. LaFave, SUBSTANTIVE CRIMINAL

LAW § 5.1, pp. 332-333 (2d ed. 2003). Although

there are exceptions, the “general rule” is

that a guilty mind is “a necessary element

in the indictment and proof of every crime.”

United States v. Balint, 258 U.S. 250, 251

(1922). We therefore generally “interpret[]

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).

Elonis, 135 S.Ct. at 2009 (2015) (emphasis added).

In 2015, a unanimous Supreme Court reviewed the

mens rea aspects of the federal drug delivery statute,

which is directly relevant to this case. In an opinion

authored by Justice Thomas, the Court concluded “that

21 U.S.C. § 841(a)(1) requires that the defendant knew

he was dealing with ‘a controlled substance’ . . . even

if he did not know its identity.” McFadden v. United

States, 135 S.Ct. 2298, 2302 (2015). In other words,

where the statute is facially ambiguous, the Court

found a mens rea requirement implicitly required, so

the defendant must be proven to know either the

identity or the illicit nature of the substance to satisfy

the federal offense. See id.

In Mr. Shular’s case, the Eleventh Circuit did the

opposite, finding mens rea implicitly eliminated from

qualifying § 924(e)(2) predicate offenses. This holding

cannot be squared with the precedent of this Court.

17

III. SINCE AT LEAST 1952, THIS COURT HAS INTERPRETED FEDERAL DRUG OFFENSES TO INCLUDE A

MENS REA ELEMENT, AND CONGRESS RELIED ON

THE COURT’S MODERN HOLDINGS IN AMENDING THE

ACCA IN 1986.

Federal law has evolved to include mens rea

requirements in drug offenses. In 1922, when the sale

and consumption of cocaine was regulated incidentally

via a tax statute,10 the Supreme Court permitted “drug”

(really tax violation) convictions in the absence of mens

rea. See United States v. Balint, 258 U.S. 250, 251-52

(1922).

The Supreme Court has never blindly adhered to

its holding in Balint. Instead, the Court has critically

discussed it and explicitly limited its application to

the context of the times in which it was decided. See

Morissette v. United States, 342 U.S. 246, 260 (1952)

(“The conclusion reached in [ ] Balint [] has our approval

and adherence for the circumstances to which it was

there applied.”).11

10 See generally Harrison Narcotic Tax Act (1914), which merely

regulated the sale of, but did not criminalize, cocaine see also

Lisa N. Sacco, Cong. Research Serv., R43749, Drug Enforcement in

the United States: History, Policy, and Trends 3 (2014) (“Under

the Harrison Act, practitioners were authorized to prescribe opiates

and cocaine[.]”).

11 As the Eastern District of New York has explained,

“[T]he statute [at issue in Balint ] must be understood in

context. It predated the era during which all possession

and sale of drugs came to be regarded as serious crimes.

Aside from its penalty, it fairly can be characterized

as a regulation. It required manufacturers and distributors of certain narcotics [including opium and cocaine]

18

By1952, this Court concluded that Balint was

legitimate only because at the time it was decided,

the regulation of controlled substances was novel

Congress was thus legislating on a blank slate, rather

than against a well-developed backdrop of state law

jurisprudence that could inform its intent

Congressional silence as to mental elements

in an Act merely adopting into federal

statutory law a concept of crime already so

well defined in common law and statutory

interpretation by the states may warrant

quite contrary inferences than the same

silence in creating an offense new to general

law, for whose definition the courts have no

guidance except the Act . . . [T]he offense

before this Court in the Balint [ ] case [was]

of this latter class [ . . . ].

Morissette, 342 U.S. at 262 (emphasis added).

to register with the IRS, pay a special tax of one

dollar per year and record all transactions on forms

provided by the IRS. Id. §§ 1-3 and 8.

As a case about strict liability and narcotics, Balint

has no application today. Prior to the Harrison Act

narcotics had been freely available without prescription.

This change by tax statute was a first modest transitional step towards the present complex and serious

criminal statutes dealing with narcotics offenses. They

have come to be treated as among the most serious of

crimes in the federal criminal code. See, e.g., 21 U.S.C.

§§ 960 (mandatory minimum sentences as high as 10

years for certain drug offenses) 848(e) (possible sentence

of death for drug offenses in which killing results).

United States v. Cordoba-Hincapie, 825 F.Supp. 485, 507 (E.D.N.Y.

1993) (emphasis added).

19

By 1986, Congress was no longer legislating

against a blank slate when it came to criminalizing

controlled substance violations. In the 64 years that had

passed between Balint (1922) and the 1986 amendments to the ACCA, states and the federal government

had developed a wide-ranging compendium of criminal

laws governing controlled substance offenses. As the

Morissette court noted, in 1952

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, 342 U.S. at 263. Thus, by 1986, Congress

was presumed to be aware of controlled substance

“crime[s] already so well defined in common law and

statutory interpretation by the states.” Id., at 262.

In 1986, Congress was well aware that drug offenses included a mens rea element, as Congress itself

made clear by 1970 when it passed the federal Controlled Substances Act (“CSA”). As further evidenced by

the Uniform Controlled Substances Act and the laws

of all 50 state jurisdictions (in 1986), the “widely

accepted definition”—at the time that Congress created

the § 924(e)(2) 15-year minimum sentence for those

previously convicted of “serious drug offenses”—was

the universal requirement of culpable mens rea for

20

all elements in controlled substance trafficking offenses.

See Controlled Substances Act of 1970 the federal

Controlled Substances Analogue Enforcement Act of

1986 (both requiring element of mens rea) see also

Adkins, supra (cataloguing uniform mens rea requirement in all 50 states, prior to Florida’s 2002 changes).

It was under this understanding of the uniform

national landscape, in 1986, that Congress enacted

the term “serious drug offense” in § 924(e)(2).

IV. SMITH AND THE DECISION BELOW MUST BE

REVERSED AS CONTRARY TO THE STATUTE AND THE

PRECEDENT OF THE COURT

There is no possible support for the Eleventh

Circuit’s decision in Smith or the panel decision below.

Pursuant to Morissette and Esquivel-Quintana, in

drafting § 942(e)(2) and heavily penalizing “serious

drug offenses,” Congress necessarily invoked its plain

understanding of the contemporary (1986) meaning

of controlled substances offenses.

Given the opportunity to define the sentencing

ground in an explicitly unusual way (i.e. by overtly

negating mens rea), Congress declined. See Lopez,

supra. Consequently, the Court should construe

§ 924(e)(2) according to the understanding of the

generic terms at the time of its passage. “Put differently, [the Court] ‘must presume that Congress said

what it meant and meant what it said.’” In re Hill, 715

F.3d 184, 297 (11th Cir. 2013) see also INS v. Cardoza

-Fonseca, 480 U.S. 421, 431 (1987) (“it is assumed that

the legislative purpose is expressed by the ordinary

meaning of the words used”).

21

The Eleventh Circuit used the same quote to

justify upholding the use of a Florida conviction as a

sentence-enhancing “serious drug offense”

No element of mens rea with respect to the

illicit nature of the controlled substance is

expressed or implied by either definition.

We look to the plain language of the definitions to determine their elements, and we

presume that Congress and the Sentencing

Commission “said what [they] meant and

meant what [they] said[.]

Smith, supra, at 1267 (internal citation omitted).

The Eleventh Circuit is obviously wrong, as its

reasoning is in direct conflict with the Morissette

admonition to do the opposite, “[w]e have repeatedly

held that ‘mere omission from a criminal enactment

of any mention of criminal intent’ should not be read

‘as dispensing with it.’” Morissette, supra, at 250 see

also X-Citement Video, supra (same) Elonis, supra

(same) Dean, supra (same) Staples, supra (same).12

Mens rea regarding the illicit nature of a substance

is an essential element of a “serious drug offense.”

The Morissette and Esquivel-Quintana lines of cases

explicitly preclude the Eleventh Circuit’s decision, in

Smith and in Mr. Shular’s case below consequently,

the decision of the Circuit should be reversed.

12 The Court has also recently remarked that “a good rule of

thumb for reading our decisions is that what they say and what

they mean are one and the same.” Mathis v. United States, 136

S.Ct. 2243, 2254 (2016). Given the Court’s repeated opinions on

this point, the question of mens rea being read into silent

statutes is thus one that would appear quite settled.

22

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

MICHAEL S. VASTINE

COUNSEL OF RECORD

PROFESSOR OF LAW

DIRECTOR, IMMIGRATION CLINIC

ST. THOMAS U. SCHOOL OF LAW

16401 NW 37TH AVENUE

MIAMI GARDENS, FL 33054

(305) 623-2340

MVASTINE@STU.EDU

SUI CHUNG

IMMIGRATION LAW & LITIGATION GROUP

3250 GRAND AVENUE

MEZZANINE ONE, SUITE 201

MIAMI, FL 33133

(305) 444-4027

IRA J. KURZBAN

EDWARD RAMOS

ELIZABETH MONTANO

KURZBAN, KURZBAN, TETZELI & PRATT, P.A.

131 MADEIRA AVENUE

CORAL GABLES, FL 33134

(305) 444-0060

COUNSEL FOR AMICI CURIAE

OCTOBER 2, 2019