Opposition Brief — Georgopoulos v. United States

SE

ey Bupreme Court, U.S.

A) FILED

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|

| DEC ZY 1998

No. 98-720 |

CONE SERIES SS CT CLERK

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1998

JOHN GEORGOPOULOS, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney Genera!

VICKIS. MARANI

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the intent element of 29 U.S.C. 186(d)(2)—

which makes it a crime when any person “willfully

violates” Section 186’s prohibition against payments

from employers to representatives of their employees

—requires a jury finding that the defendant acted with

knowledge that his conduct was unlawful.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Arroyo v. United States, 359 U.S. 419 ¢ ge N ae 4

Bates v. United States, 522 U.S. 22 SRIPUTED. sathicnicacseds. siaibond 4

Bryan v. United States. 118 S. Ct. 1939 (1998) .... 1, 6, 9.

10, 11

Cheek v. United States, 498 U.S. 192 (1991) ....... = 6,11

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) i)

Phillips v. United States, 514 U.S. 1003 (1995) ................ 6

Ratzlaf v. United Stat 8, 510 U.S. 135

SEINE) dentiieitstincihipandnsdietansbiatigihcasiecidna nels cdc ci £9.10

Spies v. United Stat ST chit. & 7). °. : Seep 6

l’nited States vy. Bloch, 696 F.2d 1213 (9th ¢ 1r.

PPE ditiveci Aces nenebilaseiiaiiniiiuildbanssaareinee i ~

United States v. Cart r, 311 F.2d 934 (6th Cir.).

cert. demed, 378 U.S. 915 (1963) Neheakbaai putbetneunddwbdebinidcs ss

l'nited States \ Inciso, 292 F 2d 374 (7th Cur. )

cert. denied, 368 U.S. 920 (1961) .....ccccccc..--- 8.11.12

United States v. Keegan, 331 F.2d 257 (7th ( ‘ir.),

cert. denied, 379 U.S. 828 ( 0 RR ie eee 32

United States vy. Overton, 470 F.2d 76! (2d Cir

1972), cert. denied, 411 U.S. 909 (1973) oo... S

United States vy. Papia, 910 F.2d 1357 (7th Cir

SO olibnibhinicsentminbiecsdeisideb adit ak lise enn 12,13

l'nited States \ Pecora, 484 F.2d 1289 (3d Cir.

coo hen NE EE EINE SE OT EC REET, s

(II1)

IV

Cases—Continued: Page

United States v. Phillips, 19 F.3d 1565 (11th Cir.

1994), cert. denied, 514 U.S. 1003 (1995)... 11, 12,13

United States v. Ryan, 350 U.S. 299 (1956) 9

Statutes:

Comprehensive Crime Control Act of 1984, Pub. L.

No. 96-473, Tit. II, § 801, 98 Stat. 2131 8

TR US SCD wiciiseeccsecsarwsinnsenessioeninisenpctatinnsctinaentonanarnanenineieianie 2

18 U.S.C. 371 2

18 U.S.C. 922(a 1A) 10

18 U.S.C. 924(a) ...... 10

18S U.S.C. 924 (aM UMD) ........ccessscsccrcssearscsscssesscenassscsnseasensnneeees 10

18 U.S.C. SBA) ..rcccccccecorsesesccnsscnsasasssnsvascssssanscoesasetssecatoussensosss 10

y- RAR. * pe |. Bee eamenennmne ome enenor 3, 4, 5, 6, 7, 8, 9, 11

DQ U.S.C. 186d) ....0cscsccrecrcrccesesescescenesenssrsnensnsnecosscnsasensseees 7,9, 10

DS USEC. UBGAND) cecenncsecsssnetrssnsnsicesnossrancsnsensensccasquascnssoosmactonse 2

DD UBC. MID ciiarceniciescscsecnsescnnnsisveenisancienncinctenninintanmamnenst 7,10

QQ U.S.C. 18G(D)(1) .......cccscessscrssscoenscccrccsssccenssssnescoescssenssens 2,9, 10

BQ USC. NEE) ccaceeniccciccseserosensnsseceesansinnssetsinsasesvenstorseersssnssaases 3,7

DD UG... UBC DIAS) ..ccceorecccesecassssosnsesnsnacssossnrnsssessosarssnsescone 8

29 U.S.C. 186(C)(4)-(9) .....eeeceeeeeee 3,5, 6,8

2D U.S.C. 186A) ......srsccscccssrsecensccscsseesesessesensnssassenenes 9, 10, 12, 13

29 U.S.C. 186) (1982) ........cerccrccecssensessseees 5, 6, 7,8, 9

29 U.S.C. 186(d)(1) .....cecececseesee 3, 5,6, 7,8

29 U.S.C. 186(d)(2) 2, 3, 5, 6, 7, 8, 9, 10, 11, 18

Miscellaneous:

S. Rep. No. 83, 98th Cong., Ist Sess. (1983) .....ssceeseesnessneens 8,9

S. Rep. No. 225, 98th Cong., Ist Sess. 2 _) Brae ERE neha 8

129 Cong. Rec. (1983):

gh RE asian ces tassios tsnsbpcinacisipt 8

STITT. :s:c:seksaakssesaiieaneinnbdapnscanceianesibenidencundtaalasiynsanies 8

In the Supreme Court of the Gnited States

OCTOBER TERM, 1998

No. 98-720

JOHN GEORGOPOULOS, PETITIONER

Uv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-7a)

is reported at 149 F.3d 169.

JURISDICTION

The judgment of the court of appeals was entered on

July 24, 1998. The petition for a writ of certiorari was

filed on October 22, 1998. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

After a jury trial in the United States District Court

for the Eastern District of New York, petitioner was

convicted of conspiring to accept payments from an em-

ployer to an officer of a labor organization, in violation

of 18 U.S.C. 371, and of willfully accepting or aiding and

abetting the acceptance of such payments, in violation

of 29 U.S.C. 186(b)(1) and (d)(2) and 18 U.S.C. 2. He

was sentenced to 13 months’ imprisonment, to be fol-

lowed by three years’ supervised release, and was fined

$6,000. Pet. C.A. App. A159-A164; Pet. App. 2a-3a.

The court of appeals affirmed. Jd. at la-7a.

1. In 1986, petitioner and his co-defendant, Robert

Skeries, were elected president and vice-president, re-

spectively, of Local 138 of the International Brother-

hood of Teamsters. Members of Local 138 worked pri-

marily as truck drivers and warehousemen for food

manufacturers and wholesalers. Gov’t C.A. Br. 3.

Petitioner and Skeries took office in January 1987.

During the Christmas season of their first year in office,

several employers offered them payoffs in the guise of

Christmas gratuities, which they agreed to accept.

From 1987 through 1994, they accepted more than

$100,000 in payoffs from employers. Gov't C.A. Br. 3-

11, 30.

2. Petitioner was indicted on one count of conspiracy

to violate 29 U.S.C. 186(b)(1), and one count of a sub-

stantive violation of Section 186(b)(1). Section 186(b)(1)

makes it generally “unlawful for any person to request,

demand, receive, or accept, or agree to receive or

accept, any payment, loan, or delivery of any money or

other thing of value prohibited by subsection (a) of this

section.” In turn, Section 186(a)(2) makes it generally

“unlawful for any employer * * * to pay, lend, or

3

deliver, or agree to pay, lend, or deliver, any money or

other thing of value * * * to any labor organization, or

any officer or employee thereof, which represents

* * * any of the employees of such employer.” Certain

exceptions to those prohibitions are set forth in Section

186(c). Under 29 U.S.C. 186(d)(1), any person who

“willfully and with intent to benefit himself or to benefit

other persons” accepts a payment that does not meet

the requirements for the exceptions set forth in sub-

sections (c)(4) through (9) is guilty of a crime. Under

Section 186(d)(2), any person who otherwise “willfully

violates” the proscriptions of Section 186 is guilty of a

felony, unless the money or thing of value accepted does

not exceed $1,000, in which case the person is guilty

only of a misdemeanor. :

At trial, petitioner requested that the court instruct

the jury that “‘{wlillfully’ means to act with knowledge

that one’s conduct is unlawful and with the intent to do

something the law forbids, that is to say with the bad

purpose to disobey or to disregard the law.” Pet. C.A.

App. A97; Pet. App. 3a. The district court declined to

give the jury petitioner’s definition of “willfulness.” /d.

at 3a-4a. Instead, the court charged that the govern-

ment had to prove beyond a reasonable doubt that

petitioner

acted knowingly and willfully [in that he] knew what

he was doing and that he did it deliberately and

voluntarily, and not because of mistake, accident or

inadvertence.

All that is necessary to prove a willful violation for

purposes of Count Two is that the defendant had

knowledge of the payments and knowledge that

payments came from an employer whose workers he

represented.

The government is not required to prove with

respect to Count Two that a union official who was

accused of taking unlawful payments of money from

employers or persons whom the official's union

represents did so with an evil or bad purpose.

It is not necessary for purposes of Count Two that

the government prove that the defendant had

knowledge or awareness of any particular statutory

prohibition or of the fact that such an act or omission

is prohibited by law.

All that the government is required to prove with

respect to Count Two regarding the alleged willful

and knowing violation is that the defendant acted

with knowledge of the operative facts constituting

the offense.

Pet. C.A. App. A&86-A87.

3. On appeal, petitioner acknowledged circuit pre-

cedent holding that, as used in Section 186, the term

“willfully” does not require a showing of bad purpose or

knowledge of illegality. Pet. App. 4a. Petitioner

contended, however (7bid.), that this Court’s decisions

in Ratzlafv. United States, 510 U.S. 135 (1994), and

Bryan v. United States, 118 S. Ct. 1939 (1998), required

such a showing.

The court of appeals affirmed. The court “adhere|d]

to the well-settled law of this Circuit that the ‘will-

fulness’ element of Section 186 requires only a finding

of general intent.” Pet. App. 7a. The court explained

that “neither Ratzlaf nor Bryan disturbed the well-

settled proposition that ‘willfully’ is ‘a word of many

meanings whose construction is often dependent on the

context in which it appears.’” Jd. at 4a (quoting Bryan,

118 S. Ct. at 1944-1945, and citing Ratzlaf, 510 U.S. at

5

141). The court also observed that the majority of

circuits that have considered the issue have consis-

tently held that, as used in Section 186, “‘willfully’ re-

quires only a finding of general intent.” Jd. at 5a

(collecting cases).

The court further concluded that “the history and

structure of Section 186” support its interpretation of

the term “willfully.” Pet. App. 5a. The court noted

that, before its amendment in 1984, Section 186 had

only one penalty provision (then found at Section

186(d)), which punished willful violations of Section 186,

and that this penalty provision had been interpreted by

the courts as requiring only proof of general intent. /d.

at 5a-6a. It then observed (id. at 6a-7a) that, when

Congress amended Section 186(d) in 1984, it divided

that Section into two subsections: Section 186(d)(1)—

which deals exclusively with violations covered by

Section 186(c)(4)-(9) (governing contributions to em-

ployee trust funds and pension plans)—and Section

186(d)(2)—which punishes all other violations of Section

186. Section 186(d)(1), unlike Section 186(d)(2), requires

that one have acted “willfully and with intent to benefit

himself or to benefit other persons he knows are not

permitted to receive ‘a payment” under the covered

provisions. See Pet. App. 6a. The court found it “clear”

from this language that, “when Congress wished to

provide for a heightened mens rea requirement * * *

it stated its intentions explicitly.” Jbid. The court

therefore concluded that, by “leaving unchanged the

mens rea requirement” in Section 186(d)(2) “for all

violations not involving subsections 186(c)(4) through

(c)(9),” Congress allowed the court “reasonably [to]

conclude that Congress approved of the then-prevalent

interpretation of Section 186’s ‘willfulness’ element.”

Pet. App. 7a.

6

ARGUMENT

Petitioner contends that, to prove that he acted

“willfully” within the meaning of 29 U.S.C. 186(d)(2),

the government was required to show that he knew

that his conduct was unlawful. Pet. i, 5-10. The court of

appeals correctly rejected that argument. This Court

recently denied review on the same issue in Phillips v.

United States, 514 U.S. 1003 (1995) (No. 94-831), and

there is no reason for a different result here.

1. “The general rule that ignorance of the law or a

mistake of law is no defense to criminal prosecution is

deeply rooted in the American legal system.” Cheek v.

United States, 498 U.S. 192, 199 (1991). Petitioner

argues that Section 186(d)(2) presents an exception to

that general rule because it prohibits conduct only

when a person “willfully violates” the proscriptions of

Section 186. That argument is without merit.

As this Court has observed on many occasions, “will-

fully” is “a word of many meanings,” and its construc-

tion is “often dependent on the context in which it

appears.” See, e.g., Bryan v. United States, 118 S. Ct.

1939, 1945 (1998); Spies v. United States, 317 U.S. 492,

497 (1943). The context of Section 186(d)(2) makes clear

that, to establish a violation of Section 186, Congress

required proof only that the defendant acted with

knowledge of his actions, and not also knowledge that

those actions were illegal. Before subsection (d) was

amended in 1984, it provided that “lalny person who

willfully violates any of the provisions of * * * section

[186] shall * * * be guilty of a misdemeanor.” 29

U.S.C. 186(d) (1982). When Congress amended sub-

section (d) in 1984 to make some violations of Section

186 felonies, it divided subsection (d) into two parts.

Subsection (d)(1) applies to payments that are illegal

because they do not satisfy certain technical require-

ments of subsections (c)(4)-(9).. For those violations,

Section 186(d)(1) requires proof that the person par-

ticipating in the payment acted “willfully and with

intent to benefit himself or to benefit other persons he

knows are not permitted to receive a payment.”

Subsection (d)(2) applies to all other illegal payments

that are not covered by subsection (d)(1), i.e., payments

prohibited by subsections (a) and (b) for which Con-

gress did not provide any exception in subsection (¢).

For those violations, subsection (d)(2) requires proof

only that the parties participating in the payment

“willfully violate[d] this section.”

In light of that statutory scheme, the court of appeals

correctly concluded (Pet. App. 6a) that Section 186(d)(2)

requires proof only that the defendant acted with

knowledge of his actions, and not also proof that he

acted with knowledge that those actions were illegal.

“{I]t is clear that when Congress wished to provide for

a heightened mens rea requirement—as in the case of

violations of subsections 186(c)(4) through (9)—it stated

its intentions explicitly.” Jbid. Congress did not im-

pose any such heightened intent requirement in Section

186(d)(2), however. There is, therefore, no basis in the

statute for imposing a heightened mens rea require-

ment of proof that the defendant knew his conduct was

illegal.

That analysis is supported by the background and

legislative history of the 1984 amendments to Section

186. When those amendments were enacted, it had

already been established as the majority rule in the

courts of appeals that Section 186(d) did not require the

government to prove that a defendant knew his conduct

was unlawful.’ The amendments to Section 186 were

enacted as part of Chapter VIII of the Comprehensive

Crime Control Act of 1984, and were identical to

amendments passed by the Senate in 1983.° The Senate

committee reports accompanying the 1984 Act and the

1983 bill indicate that Congress included the “intent to

benefit” language in Section 186(d)(1) because it was

concerned that, under existing law, “willfully” carried

the connotation of general intent, and that, absent a

requirement of “intent to benefit,” a person could be

prosecuted for violations of the new technical require-

ments of subsections (c)(4) through (9) even if he be-

lieved his actions were lawful. See S. Rep. No. 225,

98th Cong., Ist Sess. 298 (1983); S. Rep. No. 83, 98th

Cong., Ist Sess. 12-13 (1983). The original committee

report also noted, however, that the transactions pro-

scribed by the new subsections (c)(1) through (8) “are

not likely to be innocently motivated.” Jbid. Therefore,

the committee determined “not to include a specific

intent requirement for prosecutions under subsection

(d)(2). The mens rea requirement for prosecutions

under subsection (d)(2) will continue to be ‘willfully.’”

! See United States v. Bloch, 696 F.2d 1213, 1216 (9th Cir.

1982); United States v. Pecora, 484 F.2d 1289, 1294 (38d Cur. 1973);

United States v. Overton, 470 F.2d 761, 767 (2d Cir. 1972), cert.

denied, 411 U.S. 909 (1973); United States v. Carter, 311 F.2d 934,

943 (6th Cir.), cert. denied, 373 U.S. 915 (1968); but see United

States v. Inciso, 292 F.2d 374, 380 (7th Cir.) (stating that Section

186(d) “contemplates proof of an awareness of the restrictions of

that section or a reckless disregard for that section”), cert. denied,

368 U.S. 920 (1961).

“= See Comprehensive Crime Control Act of 1984, Pub. L. No.

96-473, Tit. II, § 801, 98 Stat. 2131; S. Rep. No. 225, 98th Cong., Ist

Sess. 297 & n.1 (1983); ef. 129 Cong. Rec. 16,367, 16,878 (1983); 5.

Rep. No. 83, 98th Cong., Ist Sess. 2 (1983).

9

Ibid. Because Congress left the willfulness require-

ment of former Section 186(d) unchanged when it

created Section 186(d)(2), it is presumed that Congress

intended “willfully” to require a finding only of general

intent. See Miles v. Apex Marine Corp., 498 U.S. 19, 32

(1990) (“We assume that Congress is aware of existing

law when it passes legislation.”).

2. Petitioner argues (Pet. 5-8) that, under Ratzlaf v.

United States, 510 U.S. 135 (1994), and Bryan v. United

States, 118 S. Ct. 1939 (1998), Section 186(d) must be

read to require proof that the defendant knew that his

actions were illegal. That contention is incorrect.

In Ratzlaf, the Court held that the statutory prohibi-

tion against structuring currency transactions to avoid

reporting requirements, which punished one who

“willfully violat{ed]” that prohibition, required proof

that the defendant knew that the structuring was un-

lawful. See 510 U.S. at 138, 149. But as the Court

subsequently explained, the decision in Ratzlaf was

based in large part on the fact that the statute at issue

was “highly technical” and “presented the danger of en-

Snaring individuals engaged in apparently innocent

conduct.” Bryan, 118 S. Ct. at 1946-1947: see also Bates

v. United States, 118 S. Ct. 285, 290 n.6 (1997) (explain-

ing that Ratzlaf was based on the “particular statutory

context of currency structuring”). By contrast, Section

186 broadly “outiaws all payments, with stated excep-

tions, between employer and [employee] representa-

tive.” United States v. Ryan, 350 U.S. 299, 305 (1956).

Section 106(b)(1) establishes a straightforward ban on a

union officer’s acceptance of payments from an em-

ployer; its “reciprocal” provision, Section 186(a), is an

equally straightforward ban on an employer’s payments

to any representative cf its employees. See Arroyo v.

United States, 359 U.S. 419, 423 (1959). Thus, unlike

10

the technical currency structuring statute at issue in

Ratzlaf, Section 186(b)(1)’s payment ban is simply

worded and readily comprehensible, and Section

186(d)(2)’s “willfully violates” language need not be

construed to require knowledge of illegality in order to

avoid the imposition of criminal sanctions on persons

whose conduct is inadvertent.

In Bryan, the defendant contended that 18 U.S.C.

924(a)(1)(D)—which punishes one who “willfully” vio-

lates various provisions of federal law relating to fire-

arms, including 18 U.S.C. 922(a)(1)(A), prohibiting deal-

ing in firearms without a federal license—required

proof, not just that the defendant knew that his conduct

was unlawful, but also the “more particularized show-

ing” (118 S. Ct. at 1945) that he knew of the federal

licensing requirement (7d. at 1942). The government

acknowledged that the willfulness element in Section

924(a)(1)(D) required it to show that the defendant

knew that his conduct was unlawful, because other

provisions of Section 924(a) impose criminal penalties

on one who “knowingly” violates other federal firearms

statutes. See 118 S. Ct. at 1943, 1945-1946. The Court

observed in Bryan that, because “‘knowingly’ does not

necessarily have any reference to a culpable state of

mind or to knowledge of the law,” it was reasonable to

conclude that “knowingly” in that statute referred to a

factual knowledge, and that “willfully” referred to an

“evil-meaning mind.” Jd. at 1945-1946.

The structure of Section 186(d) is quite different from

that of 18 U.S.C. 9°4(d). No offense in Section 186(d)

requires proof simply of a “knowing” violation of the

law. To the contrary, the element of willfulness, which

is required for violations of Section 186(a) and (b), is the

lesser of the two mens rea elements contained within

the statute. See pp. 3, 6-7, supra. Accordingly, it is

1]

reasonable to conclude that, in Section 186(d)(2), Con-

gress used the term “willfully” only to denote a know-

ing, voluntary act. See Bryan, 118 S. Ct. at 1945 n.12

(observing that “the word [willfully] often denotes an

act which is intentional, or knowing, or voluntary, as

distinguished from accidental”); Cheek, 498 U.S. at 209

(Sealia, J., concurring in the judgment) (noting that, “in

many contexts, [the word] ‘willfully’ refers to conscious-

ness of the act but not to consciousness that the act is

unlawful”).

3. Petitioner also contends (Pet. 4-5) that the deci-

sion below conflicts with decisions of the Seventh Cir-

cuit. Review on that basis is not warranted.

Petitioner acknowledges (Pet. 4-5) that, like the

Second Circuit, the Third, Sixth, Ninth, and Eleventh

Circuits have rejected the argument that Section

186(d)(2) requires proof that the defendant knew his

conduct was illegal. See pp. 7-8, supra (discussing pre-

1984 case law); see also United States v. Phillips, 19

F.3d 1565, 1581-1582 (11th Cir. 1994), cert. denied, 514

U.S. 1003 (1995). Petitioner argues, however, that

“{t]he Seventh Circuit has consistently held that the

willfulness language of Section 186 requires the pro-

secution to prove that a defendant was aware of or

recklessly disregarded the illegality of his conduct.”

Pet. 4. It is not clear, however, that there is a genuine

conflict between the Seventh Circuit and the circuits

adhering to the majority rule.

In United States v. Inciso, 292 F.2d 374, 380, cert.

denied, 368 U.S. 920 (1961), the Seventh Circuit held

that “the term ‘willfully violates’ in Section 186(d) con-

templates proof of an awareness of the restrictions of

that section or a reckless disregard for that section.”

Then, in United States v. Keegan, 331 F.2d 257, cert.

denied, 379 U.S. 828 (1964), the Seventh Circuit ex-

12

plained that “[t]he minimum proof to convict under

[Section] 186,” 7.e., “reckless disregard for that section,”

means “actual knowledge” of the “material facts sur-

rounding the proscribed conduct” plus “knowledge that

this conduct is likely to be illegal”—by which the

Keegan court meant that “a reasonable man would be

aware that such conduct would likely be illegal,” id. at

262. In applying those standards, however, the Keegan

court upheld an instruction that defined “willfully” as

“knowingly and intentionally,” further defined “know-

ingly” to require “only a knowledge of the existence of

the facts in question, when those facts are such as to

bring the act or omission within the prohibition of the

law,” and charged that there was no requirement “that

there be any knowledge or awareness that such act or

omission is in fact prohibited by law.” /d. at 261. As

the Eleventh Circuit has noted, a jury instruction like

the one approved in Keegaw is the “practical equivalent

of a general intent jury instruction.” Phillips, 19 F.3d

at 1581 n.27.

More recently, in United States v. Papia, 910 F.2d

1357, 1362 (1990), the Seventh Circuit appeared to re-

affirm its holding in /nciso that Section 186(d) requires

“an awareness of or reckless disregard for § 186(d)’s

restrictions.” In Papia, however, the court upheld the

trial court’s jury instruction that “[a]n act is done

‘willfully’ if done voluntarily and intentionally, and with

the intent to do something the law forbids; that is to

say, With a purpose either to disobey or disregard the

law,” against the-defendant’s contention that the trial

court should have required the government to show

that she acted with an intent to benefit herself or

another. /bid. (emphasis omitted). Because the court

concluded that the jury was given a specific intent

instruction similar to the one requested by the

13

defendant, it had no occasion to decide whether Section

186(d)(2) required such an instruction.

Moreover, the Papia court did not consider the

legislative history of the 1984 amendments to Section

186(d), and it did not have the benefit of the extensive

analysis of the statutory structure and legislative

history undertaken by the Eleventh Circuit in Phill ips,

supra, and now by the court of appeals below. If the

issue should return to the Seventh Circuit, it may

reconsider its approach to Section 186(d) in light of

those recent decisions. And since the definition of

“willfully” in Section 186(d) has been litigated in the

courts of appeals only three times since 1984, there does

not appears to be any pressing need for this Court to

decide the issue now.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

JAMES K. ROBINSON

Assistant Attorney General

VICKIS. MARANI

Attorney

DECEMBER 1998