Amicus Curiae Brief — McNab v. United States

Supreme Court, U.S.

FILED

DEC 29 2003

CLERK |

6

Nos. 03-622 & 03-627

In The

SUPREME CourRT OF THE UNITED STATES

4 +

DAVID HENSON MCNAB,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

+ a

ROBERT D. BLANDFORD, ABNER SCHOENWETTER,

AND DIANE H. HUANG,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

+ a

On Petition for Writs of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

e é

BRIEF AMICI CURIAE OF NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS, NATIONAL FEDERATION OF

INDEPENDENT BUSINESS LEGAL FOUNDATION, NATIONAL

ASSOCIATION OF MANUFACTURERS, AND NATIONAL

WILDERNESS INSTITUTE IN SUPPORT OF PETITIONERS

¢ 4

Of Counsel: PAUL ROSENZWEIG

KAREN R. HARNED Counsel of Record

NFIB Legal Foundation 214 Massachusetts Ave. NE

1201 F. St. NW, Ste. 200

Washington, DC 20002

(202) 608-6190

Counsel for Amici Curiae

Washington, DC 20004

(additional counsel listed on inside cover)

LISA KEMMLER

Co-Chair, NACDL Amicus Committee

Nat’l Assoc. of Criminal Defense Lawyers

108 N. Alfred St.

Arlington, VA 22314

JAN S. AMUNDSON

Senior Vice President & General Counsel

QUENTIN RIEGEL

Vice President, Litigation & Deputy General Counsel

National Assoc. of Manufacturers

1331 Pennsylvania Ave. NW

Washington, DC 20004

TABLE OF CONTENTS

Page

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PN Oe NN ooo vioctis excesvcocacvaviiories etna ceases 3

PE critica echtsistrr ten cebat Aiea od. ee 5

I. The Question Presented Involves An Issue Of Public

Importance and Wide Application..........0.ccccccceeeeeee: 6

Il. The Absence Of Mens Rea Requirements In Public

Welfare Offenses Demands Certainty In The

Determination of Foreign Law By Foreign

NI ciriloncitustseiancoranagedescotacsomeastecserieeesenss: 11

re oss i Aaa ke ere Bete, Lae eee OTE T IN 19

TABLE OF AUTHORITIES

Page

Cases

Commonwealth v. Raymond, 97 Mass. 567 (1867).............. 15 if

Commonwealth v. Farren, 91 Mass. 489 (1864).................. 15

Dobbs Case, Z Batt Al, SEF CET Fee cacccenneebeaie 11

Hanousek v. United States, 528 U.S. 1102 (2000).......... 16-17

Morissette v. United States, 342 U.S. 246 (1942)...... > 84,29

People v. Garland, 254 Ill.App.3d 827,

627 N.EB28 397 (PPPS) iccomeinnomioninmnnen as 12

People ex rel. Price v. Sheffield Farms-Slawson-Decker,

Co., 225 N.Y. 25, 1210 FR Oe SPs 15-16

People v. Snowburger, 113 Mich. 86, 71 N.W. 497 (1897). 15

Shevlin-Carpenter Co. v. Minnesota, 218 U. S. 57 (1910) ....4

Staples v. United States, 511 U.S. 600 (1994) wo. 5,15

State v. Peery, 224 Minn. 346, 28 N.W.2d. 851 (1947)....... 12

State v. Wickstrom, 405 N.W.2d 1 (Ct. App. Minn. 1987)... 12

Thacker v. Commonwealth, 134 Va. 767, 114 S.E. 504 |

( 192Z) ......-nsensvenavesnesssisenemsnesuigenenaaeaaneieaanee 11-12 |

United States v. Ming Hong, 242 F.3d 528 (4" Cir. 2001) .. 16

United States v. International Minerals &

Chemical Corp., 402 U.S. 558 (1971)...........cc eee 4,13, 14

United States v. Scialabba, 282 F.3d 475 te Cir. 2002)....... 9

United States v. United States Gypsum Co.,

438 U.S. 422 (1976) ....<sicccsissoreenasspnag ane 13

~

TABLE OF AUTHORITIES (cont’d)

Cases, continued: Page

United States v. Weitzenhoff, 35 F.3d 1275

seh tes dniasincicerenisacinesvosseieiulenaniins 16, 17

Statutes and Regulations

Racey Act, 16 U.S.C. § S57 Z(OM ZA) .....0ccersscrscsescessnes passim

aac sd cdnciiateicitdenctauamioidiansanideansoseasidacaenevenss 10

I I cc sesdissvnsieiskenkessevonssdnbescanninsdoaciewsnvoresosenwen 10

Be ee BD iestinsvessencavensesevicvesersvsvouvessaconsvevenes 13-14

i Oe POD oo. ccsccssesesevatuensssnesssonsecevinbasscasconeeenes 14

Treatises, Articles and Other Authorities

Administrative Office of United States Courts, Federal

PENTIUM TRBCIONG SURMISE (ZIDZ)........0..0.0c0scesesscsessvevecessenees 8

American Bar Association, The Federalization of Criminal

ER a Ee ee ee 6,7

Bureau of Justice Statistics, Federal Law Enforcement

aa oalls ssa danindneesastuemrtaveostooumnes 7

Ronald L. Gainer, Federal Criminal Code Reform: Past

and Future, 2 Buff. Crim. L. Rev. 46 (1998).................... 6,7

Model Penal Code, sec. 2.05 and Comments

(American Law Institute 1985)................ccccccccccceeesssseees 17-18

Herbert Packer, Mens Rea and the Supreme Court,

PPG SUpTCINS Court ROvIew 1077 ............0sssercsssesesesesersoseses 6

Roscoe Pound, Criminal Justice in America (1930) .............. 4

Fredrick Sayre, Public Welfare Offenses,

SS kc MN, A BE IR oo sicanasnocesechivscevevsavecnsscdessvesenes 15

iV

TABLE OF AUTHORITIES (cont’d)

Page

Treatises, Articles and Other Authorities, continued:

United States Sentencing Commission, Federal Sentencing

Statistics By State, District & Circuit (2001)... ee. 16

IN THE

SUPREME CourtT OF THE UNITED STATES

Nos. 03-622 & 03-627

@ +

DAVID HENSON MCNAB, |

Petitioner,

A

UNITED STATES OF AMERICA,

: Respondent.

% e

ROBERT D. BLANDFORD, ABNER SCHOENWETTER,

AND DIANE H. HUANG,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

¢ e

On Petition for Writs of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

+ *

BRIEF AMICI CURIAE OF NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS, NATIONAL FEDERATION OF

INDEPENDENT BUSINESS LEGAL FOUNDATION, NATIONAL

ASSOCIATION OF MANUFACTURERS, AND NATIONAL

WILDERNESS INSTITUTE IN SUPPORT OF PETITIONERS

+ +

INTEREST OF AMICI

The National Association of Criminal Defense Lawyers

(“NACDL)”) is the preeminent bar organization advancing the

mission of the nation’s criminal defense lawyers to ensure

justice and due process for persons accused of crime. Founded

in 1958, NACDL has more than 10,000 lawyer members and 80

State and local affiliate organizations with 28,000 lawyer

2

members committed to preserving the Bill of Rights. The

American Bar Association recognizes NACDL as an affiliate

organization in its House of Delegates. NACDL promotes

study and research in the field of criminal law. NACDL has a

keen interest in ensuring that legal proceedings are handled ina

proper and fair manner. Among NACDL’s objectives are to

promote the proper administration of justice. In furtherance of

its objectives over the past decade, NACDL frequently files

amicus briefs with this Court on various criminal justice issues.

See NACDL’s website at www.nacdl.org.

The National Federation of Independent Business Legal

Foundation (“NFIB Legal Foundation’), a nonprofit, public

interest law firm established to protect the rights of America’s

small-business owners, is the legal arm of the National

Federation of Independent Business (“NFIB”). NFIB is the

nation’s oldest and largest organization dedicated to

representing the interests of small-business owners throughout

all 50 states. The approximately 600,000 members of NFIB

own a wide variety of America’s independent businesses from

restaurants to manufacturing firms to bowling alleys.

The NFIB Legal Foundation is concerned about the effect

of the increasing number of regulatory crimes on small

business. Small businesses, like the Petitioners, are required to

comply with a myriad of Federal and State regulations. Not

surprisingly, many well-meaning, small-business owners are

unaware of all of their legal obligations. Because failure to

observe a regulatory obligation often carries a criminal penalty,

this reality is particularly troubling. Even more disturbing are

cases, such as this one, in which small business owners are

convicted for regulatory crimes absent specific intent, and

based upon the application of uncertain foreign law.

The National Association of Manufacturers (“NAM”’’) is

the nation’s largest industrial trade association. The NAM

represents 14,000 members (including 10,000 small and mid-

sized companies) and 350 member associations serving

manufacturers and employees in every industrial sector and in

all SO states. Members. of NAM are subject to the increased use

3

of criminal penalties in the regulatory state and to the

uncertainty that attends the obligation to comply with laws and

regulations of multiple (domestic and foreign) jurisdictions

whose own construction of those laws is often ambi guous.

National Wilderness Institute (“NWI”) is a private, non-

profit conservation organization best known for its authoritative

Studies of wildlife conservation programs. Although NWI

publications cover all environmental issues, endangered species

conservation has been a particular focus of the organization.

NWI studies have revealed shortcomings in current wildlife

programs that often limit their effectiveness and waste

conservation funds.

Since its founding in 1989, NWI has advocated new

approaches to environmental problems including the use of

market incentives and technological advancements as a way to

improve the environment. These views sometime set it apart

from other environmental groups. The American Conservation

Ethic, available at the web site www.nwi.org, sets forth NWI's

general principles.

SUMMARY OF ARGUMENT

Review in these cases is warranted.’ Petitioners’ ei ght-year

sentences for the effectively scienter-less regulatory offense of

importing lobster tails in violation of non-existent Honduran

law should be reversed.”

' Counsel for the parties have consented to the filing of this amicus

brief; the letters are on file with the Clerk of the Court. Pursuant to

Supreme Court Rule 37.6, amici state that this brief was not prepared,

written, funded or produced by any person or entity other than amici or

their counsel.

2 Petitioner McNab (No. 03-622) and Petitioners Blandford,

Schoenwetter, and Huang (No. 03-627) have filed separate petitions.

The United States has chosen to file a consolidated response and this

amicus brief is directed to the issue presented in both petitions — the

applicability of foreign law to domestic regulatory conduct.

Petitioners McNab, Blandford and Schoenwetter were each

ee ee ee ———EE Wee (AEDS ODED REE a aa

4

The convictions and sentences result from the confluence

of two events — the expansion of the reach of the Commerce

Clause powers of the Federal government and this Court’s

determination in Shevlin-Carpenter Co. v. State of Minnesota,

218 U.S. 57 (1910) that the State may “eliminate the question

of intent” from any criminal provision without violating the

Due Process clause of the Fourteenth Amendment. These

developments have led, inevitably, to the complete erosion of

the mens rea requirement and the expansion of the concept of

“public welfare offense.” Today, in effect, one who acts in any

business or social capacity (as Petitioners did) is subject to what

Justice Stewart characterized as a form of “absolute liability.”

United States v. International Minerals & Chemical Corp., 402

U.S. 558, 569 (1971) (Stewart, J., dissenting).

These Petitions emphasize the importance of these two

doctrinal developments and demonstrate the potentially

pernicious applications of these doctrines to regulatory matters

involving the application of foreign law. The reconfiguration

of criminal law through a concerted, long-term crusade to dilute

traditional criminal intent requirements allows the government

to engage in grotesque over-charging such as that demonstrated

here — pyramiding trivial civil infractions of uncertain (and now

disavowed) foreign law into smuggling and money laundering

offenses that carry astronomical and unjust domestic criminal

penalties.

No reasonable observer can doubt that the scope of

substantive criminal law has expanded enormously. Today it is

called into the service of an extraordinary range of purposes.

Beyond its original function of minimizing violent behavior

threatening to lives and property, criminal law is now also used

to regulate economic enterprise, protect the environment,

correct relations among races and genders, and alter habits of

consumption of liquor, drugs, and sex. See, e.g., R. Pound,

Criminal Justice in America 23 (1930).

sentenced to 97-month terms of imprisonment. Petitioner Huang was

sentenced to a two-year term of imprisonment.

5

As the Court has long noted, the origin of the public

welfare doctrine lay in the belief that “public welfare” offenses

typically involve only modest penalties. E.g. Morissette vy.

United States, 342 U.S. 256, 256 (1952) (“penalties commonly

are relatively small, and conviction does no grave damage to an

offender’s reputation”). For this reason, the Court has often

approached (but never adopted) a rule of construction that

would delimit the “public welfare” doctrine and attendant

reductions in the mens rea requirement to those cases where a

“harsh penalty” is not imposed. See Staples v. United States,

511 U.S. 600, 616 (1994).

There can now be little doubt that the fundamental premise

of this Court’s “public welfare” jurisprudence — the presumed

modest nature of the criminal penalties attending such offenses

— is, as this case painfully demonstrates, false to fact. The

foundations of the doctrine have been undermined and review

of the doctrine’s unwarranted application to Petitioners --

whose alleged violation of anow-disavowed forei gn civil law is

the sole basis for prosecution -- is therefore appropriate.

ARGUMENT

This Court’s plenary review is warranted because the

decision of the Eleventh Circuit improperly expands and

misapplies the concept of “public welfare offense” to a case

involving regulatory “crimes” that have severe domestic

penalties despite involving violations only of foreign law that

would, if prosecuted in that foreign country be, at most, trivial

civil infractions. The issue presented — the interpretation of

foreign law and its criminal application to American businesses

engaged in an increasingly global economy -- is one of

Surpassing importance inasmuch as the growth of the American

regulatory state has rendered the criminal law applicable to

virtually all domestic (and now forei gn) productive social and

economic conduct.

6

I. The Question Presented Involves An Issue of Public

Importance And Wide Application.

As the scope of the criminal law has expanded, the trend

has been to criminalize conduct even where the alleged criminal

has acted with diminished, or non-existent intent. While this

Court has often noted the fundamental importance of the

concept of mens rea in our criminal law, the actual treatment of

that concept has been reduced to one of statutory interpretation.

Not since the early part of the last century has the Court

considered whether there are constitutional dimensions to that

concept; and its treatment of mens rea in that era was, in the

words of one noted scholar of criminal law, “flimsy. . .dictum.”

That dictum has since became a doctrine of “constitutional law

that severe criminal punishment may be inflicted at the

legislature’s will, regardless of whether the defendant had any

opportunity to conform his conduct to the requirements of law.”

H. Packer, “Mens Rea and the Supreme Court,” 1962 Supreme

Court Review 107, 116.

But that flimsy dictum now has widespread effect. That

effect can be felt in all domestic economic and social activity

and, as these Petitions demonstrate, now portends palpable

effects on those engaged in foreign trade. It would be easy to

think that the question presented in these Petitions is of little

practical importance — easy, but wrong. The reality is that

“public welfare” crimes are a growth industry.

1. Estimates of the current size of the body of federal

regulatory criminal law vary. The American Bar Association

reported in 1998 that there were in excess of 3,300 separate

federal criminal offenses. See American Bar Association, The

Federalization of Criminal Law (1998), Appendix C; see also

Ronald L. Gainer, “Federal Criminal Code Reform: Past and

Future,” 2 Buff. Crim. L. Rev. 46, 53 (1998). More than 40

percent of these laws have been enacted in just the past 30

years, as part of the growth of the regulatory state. See

Federalization of Criminal Law at 9 & 11 (Chart 2). These laws

are scattered in over SO titles of the United States Code,

7

encompassing roughly 27,000 pages, see Gainer, Federal

Criminal Code at 53, rendering them effectively unknowable.

Worse, the statutory code sections often incorporate by

reference the provisions and sanctions of administrative

regulations promulgated by various agencies under

congressional authorization. Estimates of how many such

regulations exist are even less well settled, but the ABA thinks

there are “[nJearly 10,000.” F, ederalization of Criminal Law at

10.

And the growth in the scope of criminal law is, if it is

possible, exacerbated by statutes such as the Lacey Act, which

criminalize violations of foreign laws (and, arguably, foreign

regulations). In this age of globalization, even small and mid-

size businesses are likely to engage in both domestic and

foreign operations. It simply beggars the imagination to

envision how a conscientious businessman might inform

himself of the laws (and regulations!) of more than 190 nations.

Yet, the construction given the Lacey Act in this case requires

such an effort, criminalizes the failure to do so, and, through the

magic of money laundering statutes, imposes a cruel and severe

eight-year penalty on those who, in the prosecutor’s discretion,

are deemed worthy of punishment.

2. Nor is the growth in the number of federal criminal

statutes merely an academic question, without real world

effects. Another measure of the extent to which criminal

enforcement of regulatory prohibitions has grown is the

resources that have been devoted to the effort. In 2002 (the

latest year for which data is available), for example, the Fish

and Wildlife Service had 772 sworn law enforcement of ficers;

the Forest Service another 658; Bureau of Land Management —

235; Environmental Protection Agency — 220; Food and Drug

Administration — 162; and the National Marine Fisheries

Service (whose prosecution is directly at issue in this case)

employed 137 law enforcement officers. See Bureau of J ustice

Statistics, Federal Law Enforcement Officers, 2002

(http://w ww.ojp.usdoj.gov/bjs/pub/pdf/fleo02. pdf). There can

8

be little doubt that the Federal government expects results from

its investment of these resources.

And those results are evident. Between March 2001 and

March 2002 (again, the latest year for which data are available),

federal prosecutors commenced 62,957 cases, involving 83,809

individual defendants. See Administrative Office of United

States Courts, “Federal Judicial Caseload Statistics,” Table D-2

(http://www.uscourts.gov/caseload2002/contents.html). More

than 3,100 of these defendants were charged with crimes

categorized as violations of “federal statutes” -- a category

broadly (though not precisely) congruent with charges

reflecting violations of a regulatory program. /d. This number

exceeds the number of federal prosecutions during the same

year for a host of common law offense categories, including

murder, robbery, embezzlement, forgery, and sex offenses. Put

another way, more federal prosecutorial resources are invested

in regulatory prosecutions than in the prosecution of forgery

charges. /d.

And even these statistics understate the impact of the

specter of criminal regulatory enforcement. Offenses involving

productive economic and social conduct are uniquely subject to

risks of over-deterrence. Unlike common law crimes, for which

motivations of passion or circumstance often overcome

calculation, the world of economic and social conduct is

especially responsive to the in terrorem effect of criminal

sanctions. As a consequence, the mere threat of criminal

penalties becomes a tool in the arsenal of civil regulators to

coerce compliance with otherwise ill-justified regulatory

regimes. For example, one NFIB member, a home health-care

provider, recently was compelled to settle with the local

prosecutor, who threatened the company with criminal

proceedings, fines, and jail. The company reported the

Medicaid fraud of one of its employees, whom it fired. In terms

redolent of a gangster novel, the prosecutor’s office attempted

to extract a six-figure fine from this company before any

criminal charges were filed. This small, respectable business

with a clean healthcare claims record settled simply “to make

a

<—

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9

the case go away,” fearing local reprisals and negative

publicity.

To be sure, many of these effects are solely domestic. But

the foreign law interpretation question at the core of the instant

Petitions is a natural outgrowth of these developments.

Because social and economic conduct is, as we next

demonstrate, subject to an unusual form of near-absolute

liability, the structure of laws has the inevitable and essentially

unmeasurable effect of causing social and economic actors to

forego productive, beneficial conduct rather than risk the

Capricious exercise of prosecutorial discretion. Put more

directly, Petitioners’ case cannot possibly have been calibrated

to achieve an appropriate level of societal deterrence.

Plainly, the importation of food into the United States is a

socially beneficial activity — it feeds American citizens. Yet the

inevitable effect of the excessive eight-year sentences rendered

can only be the over-deterrence of this conduct. Costs will rise:

fewer imports will enter the United States; and, in the end,

Americans will have fewer gastronomic choices. One rather

doubts the utility of this or that Congress intended such a result.

3. The facts of this case readily demonstrate how a simple

public welfare offense, involving only modest penalties, can be

transmuted through prosecutorial discretionary decision-making

into a harsh felony prosecution. Underlying Petitioners’

“crime” was a relatively straightforward civil violation of

Honduran law (assuming, that is, that Honduran law had any

legal application at all). That Honduran civil law in turn

became the predicate for a mere misdemeanor violation of the

Lacey Act, prohibiting the importation of “fish or wildlife

taken, possessed, transported, or sold in violation of any law or

regulation of any State or in violation of any foreign law,” 16

U.S.C. § 3372(a)(2)(A).* Yet Petitioners’ simple regulatory

4

Petitioners Blandford and Huang were convicted of both

misdemeanor and felony Lacey Act violations. For the misdemeanor

convictions, the jury was instructed that they could be convicted if they

knew or “should have known” of the underlying foreign law and

regulations. Moreover, the jury instruction with respect to the felony

10

offenses somehow mutated-into a criminal matter of near

cataclysmic proportions.

Thus, though the bulk of the shipment of “illegal lobster

tails” originally seized was not, in fact, “illegal” (save in the

sense that they were packaged incorrectly) Petitioners’

regulatory violation was creatively used as the predicate for a

felony smuggling charge (a general intent crime) alleging the

importation of goods into the United States “contrary to law.”

See 18 U.S.C. § 545. This smuggling charge, in turn, became

the predicate for money laundering charges, see 18 U.S.C.

§ 1956(a), where the “money laundering” in question was

nothing more than the normal commercial transaction of

importing, paying for, and depositing the proceeds from the sale

of the seafood in question in a bank account. Cf. United States

v. Scialabba, 282 F.3d 475, 476 (7" Cir. 2002) (expressing

doubt that Congress intended to criminalize use of funds that do

not entail financial transactions “to hide or invest profits in

order to evade detection, the normal understanding of money

laundering”). As a consequence, Petitioner McNab is now

serving a draconian sentence of 97 months imprisonment.

Petitioners Blandford and Schoenwetter were sentenced to the

same staggering prison terms, while Petitioner Huang was

incarcerated for only two years. All for violating a foreign law

and foreign regulations whose existence may not have been

known to the defendants and whose construction is the subject

of substantial doubt.

charges against defendants required only that they be shown to have

known that they violated foreign law — not any specific statutory or

regulatory provision.

1]

II. The Absence Of Mens Rea Requirements In Public

Welfare Offenses Demands Certainty In The

Determination of Foreign Law By Foreign

Governments.

There would be relatively little difficulty with uncertainty

in the determination of foreign law if actual knowledge of

foreign laws were an element of federal offenses alleging their

violation. As we next demonstrate, however, the Federal

government has made a concerted effort to drain all regulatory

criminal law of any intent requirement — an effort that demands

a concomitant certainty in the determination of foreign law.

1. The requirement that a crime involve culpable

purposeful intent has a solid historical grounding. As Justice

Robert Jackson wrote:

The contention that an injury can amount to a

crime only when inflicted by intention is no provincial

or transient notion. It is as universal and persistent in

mature systems of law as belief in freedom of the

human will and a consequent ability and duty of the

normal individual to choose between good and evil. A

relation between some mental element and

punishment for a harmful act is almost as instinctive

as the child’s familiar exculpatory “But I didn’t mean

to,” and has afforded the rational basis for a tardy and

unfinished substitution of deterrence and reformation

in place of retaliation and vengeance as the motivation

for public prosecution. Unqualified acceptance of this

doctrine by English common law was indicated by

Blackstone’s sweeping statement that to constitute any

crime there must first be a “vicious will.”

Morissette, 342 U.S. at 250-51. Thus, the very earliest English

common law recognized that one who intended to commit an

act (say injuring a horse) and who mistakenly committed a

different crime (killing the horse) could not be said to have

intended the graver crime of intentionally killing the animal.

See Dobbs Case, 2 East P.C. 513 (1770); see also Thacker v.

12

Commonwealth, 134 Va. 767, 114 S.E. 504 (1922) (defendant

shot at a light and struck and killed a victim; not guilty of

murder); State v. Peery, 224 Minn. 346, 28 N.W.2d. 851 (1947)

(requiring proof of “intent to be lewd” in indecent exposure

prosecution of defendant who was accidentally viewed through

ground floor window by passers-by).

But this conception of intent (or what the Model Penal

Code drafters called “purpose”) -- that is, a conception

necessitating proof that a defendant intended both to do the act

which constituted the offense and to accomplish the particular

harm prohibited -- did not long survive even in the common

law. English and American courts have now come to the view

that in most legal contexts a criminal actor who intends to

engage in an act is liable for whatever harm eventuates, even if

it is different from that which was within his original

contemplation. E.g. State v. Wickstrom, 405 N.W.2d 1 (Ct.

App. Minn. 1987) (defendant hit victim causing abortion of

pregnancy; guilty of criminal abortion despite lacking intent to

injure fetus). In the words of the Model Penal Code one can act

“knowingly” or_with the general intent to do the acts which

constitute the offense without regard to any specific intent to do

a wrongful act or violate a law. E.g. People v. Garland, 254

Ill.App.3d 827, 627 N.E.2d 377, 380-81 (1993) (“Specific

intent exists where from the circumstances the offender must

have subjectively desired the prohibited result. General intent

exists when the prohibited result may reasonably be expected to

follow from the offender’s voluntary act even without any

specific intent by the offender.”).

2. This development has perverse consequences in the

context of the rise of the “regulatory state” and the resulting

growth in the cluster of problems involving the relationship of

the criminal law to the conduct of economic enterprise. In the

context of regulatory offenses the concept of intent has

diminished, departing from its traditional understanding.

Building on the time-honored maxim that “ignorance of the

law is no excuse,” for example, courts now routinely conclude

that one can be convicted of a crime for having acted knowingly

13

(that is purposefully doing an act) without the additional

requirement that the government prove that the defendant had a

conscious desire to achieve a particular end or to violate a

known legal duty (typically one found in the form of a statutory

or regulatory prohibition). Thus violations of the Sherman

Antitrust Act require only proof of deliberate business conduct

without proof of intent to monopolize or intent to violate the

law. E.g. United States v. United States Gypsum Co., 438 U.S.

422, 445-46 (1978).°

This description of the mens rea requirements that have

developed in the regulatory context is deeply troubling. It

makes clear the extent to which actors in a highly regulated

industry are subject to criminal liability for their unknowing

acts. Though the law often requires that they have acted

“knowingly” -- a seeming protection from the imposition of

strict liability -- that requirement is but a parchment barrier to

what is, in effect, the imposition of absolute liability. Proof that

one in fact lacked knowledge of the regulatory requirement at

issue is, uniformly, no defense to the prosecution. E.g.

International Minerals & Chemical Corp., 402 U.S. at 565

(“[W]here * * * dangerous or deleterious materials are

involved, the probability of regulation is so great that anyone

who is aware that he is in possession of them or dealing with

~ them must be presumed to be aware of the regulation.”).

A common example illustrates the point: Consider, the

crime of “knowingly filing a false monitoring report” under the

Clean Water Act. See 33 U.S.C. § 1319(c)(4) (making it a

crime to knowingly make a false statement in any certification

required by the regulations promulgated by Environmental

> Notably, in this example, a corporate executive will at least know

that his company’s market share is increasing, alerting him to

circumstances that might warrant inquiry. In complex health, safety and

environmental regulatory regimes there is often nothing extrinsic that

will alert the average businessman to the proscribed nature of this

conduct. Similarly, in today’s global marketplace there is often no

indication of a potential violation of foreign laws or regulations.

14

Protection Agency), and 40 C.F.R. § 122.41(/)(4) (requiring

compliance with permit requirements, which require the filing

of a “discharge monitoring report”).° The law that defines what

is false or misleading is part of a large regulatory scheme that

also includes a regulatorily-imposed obligation on each

individual to insure the accuracy of any reports made. As a

consequence, the only showing the government must make to

the satisfaction of a jury is that the defendant has “knowingly

filed” the report, irrespective of whether or not he actually

knew it was false. And since nobody files a report without

doing so intentionally (reports do not get signed, sealed, and

mailed by accident or mistake), the only showing necessary is

the trivial showing that the defendant has purposefully put a—

letter in the mail. As Justice Potter Stewart noted: “As a

practical matter, therefore, they are under a species of absolute

liability for violation of the regulations despite the ‘knowingly’

requirement.” /nternational Minerals & Chemical Corp., 402

U.S. at 569 (Stewart, J., dissenting).

Petitioners’ case illustrates the point (and the dangers)

readily. The underlying premise for the indictment and

convictions is that Petitioners violated the Lacey Act by

importing and selling lobster tails that allegedly were in

violation of three Honduran laws, resolutions, and regulations.

Yet, for more than six months the federal government was

unable to discern what, if any, Honduran regulations had been

violated. That uncertainty was no barrier to prosecution -- the

Lacey Act, (like other regulatory criminal laws), does not

require the Government to demonstrate that Petitioners had

actual knowledge of those Honduran jaws. Nor is it an element

of the offense to prove that they had more generalized

knowledge of the prohibitions of the Lacey Act. Indeed, for a

misdemeanor violation the “should have known” standard

suffices.

° As this brief exegesis demonstrates, even discerning that the law

criminalizes the filing of a false report is, itself a problematic endeavor.

1 acne rR MOEA OOO CRG SEATS A sa a a SpA owe

15

Thus, all that is required is a showing that a defendant was

aware of the nature of his or her conduct -- a showing that is

trivial in the regulatory context as no economic actor routinely

engages in business conduct by accident or without knowledge

of the nature of his conduct. Rather he acts (as here by

importing goods) with a purpose and, under current legal

doctrine that purposeful act puts him on notice as to the entire

panoply of attendant laws and regulations — a panoply that,

under the Lacey Act, includes the laws and regulations of every

foreign country. Moreover, this rule of law applies even if (as

here) the construction and interpretation of those laws is

indefinite and subject to dispute even by the sovereign who has

adopted them. Contemporary regulatory criminal law thus

dispenses with any pretence that it criminalizes the conduct

only of those who have a wrongful intent.

3. What is particularly disturbing about the trend toward

diminished intent requirements is that it is exacerbated by a

trend toward significantly harsher penalties. Historically, when

the courts first considered regulatory laws containing reduced

intent requirements, the laws uniformly provided for very light

penalties such as a fine or a short jail term, not imprisonment in

a penitentiary. See Staples, 511 U.S. at 616 (citing e.g.

Commonwealth v. Raymond, 97 Mass. 567 (1867) (fine up to

$200 or 6 months in jail); Commonwealth v. Farren, 91 Mass.

489 (1864) (fine only); People v. Snowburger, 113 Mich. 86, 71

N.W. 497 (1897) (fine up to $500 or incarceration in county

jail)).

As early commentators noted, modest penalties are a

logical complement to crimes that do not require specifie intent.

See Francis B. Sayre, “Public Welfare Offenses,” 33 Colum. L.

Rev. 55, 70 (1933); see also Morissette, 342 U.S. at 256

(“penalties commonly are relatively small, and conviction does

no grave damage to an offender’s reputation”). Indeed, initially

some courts questioned whether any imprisonment at all could

be imposed in the absence of intent and culpability. E.g.

People ex rel. Price v. Sheffield Farms-Slawson-Decker, Co.,

225 N.Y. 25, 32-33, 121 N.E. 474, 477 (1918) (Cardozo, J.);

16

id. at 35, 121 N.E. at 478 (Crane, J., concurring) (imprisonment

for crime that requires no mens rea stretches law of regulatory

offenses beyond its limitations). But this historical view has

now been lost. Regulatory laws with reduced mens rea

requirements are often now felonies. E.g. United States v.

Weitzenhoff, 35 F.3d 1275 (9th Cir. 1994) (felony violation of

Clean Water Act—no knowledge of regulations necessary).’

And, through the pyramiding of serious felonies on top of

minor regulatory offenses, even modest crimes can be

“enhanced” into significant terms of imprisonment. For

example, in Fiscal Year 2001, the average term of

imprisonment for Environmental and Wildlife offenses in the

Eleventh Circuit was only 9.6 months. See United States

Sentencing Commission, Federal Sentencing Statistics By

State, District & Circuit, Table 7 (“Average Length of

Imprisonment By Primary Offense Category’) (2001)

(http://www.ussc.gov/judpack/2001/11cO1.pdf). The contrast

between this modest penalty and the 97-month sentence that

three of the Petitioners received for their own “wildlife” offense

is self-evident.

4. As Justice Thomas recently wrote in a different

domestic regulatory context (involving construction workers),

the broad view of the appropriate scope of criminal law adopted

by the Eleventh Circuit in this case “expose[s] countless

numbers of . . . workers to heightened criminal liability for

using ordinary devices to engage in normal industrial

operations.” Hanousek v. United States, 528 U.S. 1102 (2000)

(Thomas, J., dissenting from denial of certiorari). Supreme

Court precedent, has

never held that any statute can be described as creating

a public welfare offense so long as the statute

regulates conduct that is known to be subject to

7 And even misdemeanor offenses can, through the stacking of

sentences, result in substantial terms of incarceration E.g. United States

v. Ming Hong, 242 F.3d 528 (4th Cir. 2001) (misdemeanor convictions

stacked for 3 year sentence). ws

17

extensive regulation and that may involve a risk to the

community. Indeed, such a suggestion would extend

this narrow doctrine to virtually any Criminal statute

applicable to industrial activities. I presume that in

today's heavily regulated society, any person engaged

in industry is aware that his activities are the object of

Sweeping regulation and that an industrial accident

could threaten health or safety.

Id. So, too, presumably, with lobster importers, or sewage

treatment workers, or automobile manufacturers, accountants,

bartenders, garbage collectors, sports referees, or even (dare we

say) lawyers. o

In short, historical changes in the mens rea requirements

have been substantial. The criminal law today is far different

from the criminal law of 100 years ago. For regulatory crimes

there is, in effect, a standard of near-absolute liability. This

interpretation of regulatory statutes with increasingly onerous

criminal penalties has lost sight of a fundamental truth: “If we

use prison to achieve social goals regardless of the moral

innocence of those we incarcerate, then imprisonment loses its

moral opprobrium and our criminal law becomes morally

arbitrary.” Weitzenhoff, 35 F.3d at 1293 (Kleinfeld, J.,

dissenting from denial of rehearing en banc).

Put another way, given the comprehensive nature of

regulation in America society today, the growth of the public

welfare doctrine has, in effect, led to the abandonment of any

intent requirement for virtually the entire range of commercial,

social, and economic activity in the marketplace. This situation

is fundamentally wrong. For as the drafters of the Model Penal

Code said:

It has been argued, and the argument undoubtedly

will be repeated, that strict liability is necessary for

enforcement in a number of the areas where it obtains.

But if practical enforcement precludes litigation of the

culpability of alleged deviation from legal

requirements, the enforcers cannot rightly demand the

use of penal sanctions for the purpose. Crime does and

18

should mean condemnation, and no court should have

to pass that judgment unless it can declare that the

defendant’s act was culpable. This is too fundamental

to be compromised.

American Law Institute, Model Penal Code § 2.05 and

Comments at 282-83 (1985).

This case is a paradigmatic example of how these

expansive doctrines of liability can be misapplied to a context

in which the scope of the underlying laws are uncertain, at best.

Petitioners’ manifestly unjust eight-year sentences for the

importation of lobster tails -- without knowledge of the

underlying Honduran regulations and without clarity in

Honduran law on the construction of those regulations -- call

out for correction.

The criminal law has moral foundations. At some point a

limit on the ability of a legislature to criminalize social conduct

must exist. We submit that these Petitions have reached that

point: When the judicial system punishes with extraordinary

sanctions conduct that lacks any criminal intent and that

violates a foreign law, which the foreign government itself now

disclaims, review is appropriate.

Had the Eleventh Circuit appropriately deferred to the

-onsidered position of the government of Honduras there would

have been no scope for the application of the pernicious

doctrines we have identified. The existence of these expansive

doctrines of criminal liability demands, at a minimum, judicial

deference to the foreign law determinations of a foreign

government.

19

CONCLUSION

For the foregoing reasons, the petitions for writs of

certiorari should be granted.

December 2003 Respectfully submitted,

Of Counsel: PAUL ROSENZWEIG

KAREN R. HARNED Counsel of Record

NFIB Legal Foundation 214 Massachusetts Ave. NE

1201 F. St. NW, Ste. 200 Washington, DC 20002

Washington, DC 20004 (202) 608-6190

Counsel for Amici Curiae

LISA KEMMLER

Co-Chair, NACDL Amicus Committee

Nat’! Assoc. of Criminal Defense Lawyers

108 N. Alfred St.

Arlington, VA 22314

JAN S. AMUNDSON

Senior Vice President & General Counsel

QUENTIN RIEGEL

Vice President, Litigation & Deputy General Counsel

National Assoc. of Manufacturers

1331 Pennsylvania Ave. NW

Washington, DC 20004