# Amicus Curiae Brief — McNab v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2330%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2004 - **Citation:** 540 U.S. 1177 ## Text 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 NAR De TIE ss sceicssivssnspitsstissereesepeasexssvucrecinicimnstasisieds il IE OE PIII ssc sosvnsicesvvsnsvscceesnsiesnnsavacvesecseoxssercessnrssoees sacs | 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) .... 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2330%3A5. Public record. Not legal advice.