Amicus Curiae Brief — Unser v. United States

Supreme Court, U. 9

FILED

o/ APR 28 1999

No. 98-1600 | on

In the

Supreme Court of the United States

October Term, 1998

a

4

ROBERT W. “BOBBY” UNSER.

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

y%

vw

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

”

4

BRIEF AMICUS CURIAE OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONER

a.

-

*M. REED HOPPER

ROBIN L. RIVETT

*(ounsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amicus Curiae

Pacific Legal Foundation

i

QUESTIONS PRESENTED

1. Whether a person can be convicted of a crime without

proof of mens rea:

a. in the absence of a clear indication on the part of

Congress to dispense with the mens rea requirement, and

b. when the crime does not satisfy the requirements

for a public welfare offense as established by Morissette v.

United States, 342 U.S. 246 (1952), and its progeny?

2. Whether a court may shift the burden of proof of an

affirmative defense to the defendant in the absence of an act of

Congress authorizing that shift without violating the Due Process

Clause of the Fifth Amendment?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..... 6... 005. Renee

TABLE OF All FAURE . 5 even eee eee IV

IDENTITY AND INTEREST OF AMICUS CURIAE |

PTR TRO cla diva ete ee eee 2

STATEMENT? OF Tite CARS... 455 a eee eee 3

SUMMARY OF THE ARGUMENT ................. 4

PRISE is in KU Oa ee eee ee eee 6

| THIS COURT SHOULD GRANT THE WRIT

OF CERTIORARI TO RESOLVE AN IMPOR-

TANT QUESTION OF LAW PERTAINING

TO THE CRIMINALIZATION OF A BROAD

RANGE OF INNOCENT CONDUCT ........... 6

A. Overzealous Application of the “Public

Welfare Offense” Raises Questions Both

Fundamental and Far-Reaching in Federal

Criminal Law That Warrant a Response by

PRPC OA. nan etiiieee eee 6

B. Statutory Silence Does Not Imply Congress

Intended to Eliminate a Criminal Intent

Element Because Under Morissette the

Existence of a Mens Rea |s the Rule of

Law, Not the Exception .................. 10

TABLE OF CONTENTS—Continued

Page

C. This Court's Holding in Stap/es Undercuts the

Lower Court’s Expansive Reading of the “Public

Welfare Offense” Because This Court Will Not

Infer from Silence That Congress Intended to

Criminalize Apparently Innocent Conduct .......... 14

ec ca we swe cs sccbeccccccucunce. 18

1V

TABLE OF AUTHORITIES

Page

Cases

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon. 515 U.S. 687 (1995) ........... 2

Bennett v. Spear, 520 U.S. 154,

fee BS ee. rn ns eer epee 2

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, 467 U.S. 837 (1984) 2.0.2 ee, 2

Douglas County, Oregon v. Babbitt, 516 U.S.

of | ee re cee A ne tty pee Nae! 2

Liparota v. United States. 471 U.S. 419 (1985) 2.2.2... 15

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

COU. 6p che eckwa kk oe te wakes 1, 5, 9, 11-14, 18-19

Pacific Legal Foundation v. Andrus, 657 F.2d 829

i Ns op woh Wa da ed bee te bre ale 2

Staples v. United States, 511 U.S. 600

2 PORTO CREO TST Tee EON SECRET RCE Te 5-6, 10, 14-18

Steel Company v. Citizens for a Better Environment,

Pee a SO os 04 os ee ee ee eee ee 2

United States v. Balint, 258 U.S. 250 (1922) ........ 3,35

United States v. Behrman, 258 U.S. 280 (1922) ........ 11

United States v. Freed, 401 U.S. 601 (1971) .......... 1S

U/nser v. United States, 165 F.3d 755 (1999)... 0... 10, 18

Vv

TABLE OF AUTHORITIES—Continued

Page

Statutes

OR SEs OE 6 i es ot oie ee ee 10

yee | erry ee er ea 14

PS Uae, BPP EMEEILED 5 254 5 oe eens ae eo sae 8

Rules and Regulation

Supreme Court Rule 37.2 ....... rE he l

FEM iba Fade nee CERO ee ]

Ce OE ee ee ere 10

Miscellaneous

Kevin Gay.ior & Thomas Bartman, Criminal

Enforcement of Environmental Laws, 10 Colo.

A. OR ee. 2. ee Oe 8s 2 a ee eee 7-10

IDENTITY AND INTEREST

OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37.2. Pacific Legal

Foundation respectfully submits this brief amicus curiae in

support of the petition for writ of certiorari.'| Written consent

was granted by counsel for all parties and lodged with the Clerk

of this Court.

Pacific Legal Foundation (PLF) is the largest and most

experienced nonprofit public interest law foundation of its kind

in America. Founded in 1973, PLF provides a voice in the

courts for mainstream Americans who believe in limited

government, private property rights, individual freedoms, and

free enterprise. PLF litigates nationwide in state and federal

courts with the support of thousands of citizens from coast to

coast. PLF is headquartered in Sacramento, California. and has

offices in Miami, Florida: Honolulu, Hawaii: Bellevue.

Washington; and a liaison office in Anchorage, Alaska.

In its fight to protect fundamental constitutional rights, PLF

becomes involved in cases that raise important public policy

considerations that may create significant legal precedents.

Amicus participation is approved by a voluntary Board of

Trustees where PLF’s perspective will assist the court in

resolving the underlying legal issues. PLF Supports a broad view

of the public interest and promotes balance and common sense

in the adoption, interpretation, and administration of laws and

regulations.

There is a growing trend among federal agencies and the

courts to expand the enforcement power of the government

incrementally by adopting regulatory interpretations that go

' Pursuant to Supreme Court Rule 37.6, amicus curiae Pacific Legal

Foundation affirms that no counsel for any party in this case authored

this brief in whole or in part; and furthermore that no person or entity

has made a monetary contribution specifically for the preparation or

submission of this brief.

2

beyond their plain meaning and intent. This case is a singular

example of government overreaching.

Contrary to common sense and Supreme Court precedent,

the Tenth Circuit has held innocent conduct constitutes a crime

punishable by fine or imprisonment or both under a federal

statute. Strict liability offenses undermine the freedoms of all

citizens and should be narrowly construed.

PLF has participated in numerous cases involving the

interpretation of federal laws. For example, PLF was a party of

record in Pacific Legal Foundation v. Andrus, 657 F.2d 829 (6th

Cir. 1981). PLF also participated as amicus curiae in this Court

in the Stee/ Company v. Citizens for a Better Environment.

118 S. Ct. 1003 (1998): Bennett v. Spear, 520 U.S. 154, 1175S.

Ct. 1154 (1997). Douglas County, Oregon v. Babbitt, 516 U.S.

1042 (1996). Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687 (1995). and Chevron, U.S.A..,

Inc. v. Natural Resources Defense Council, 467 U.S. 837

(1984).

PLF’s public policy perspective will provide a necessary

viewpoint on the issues presented in this case.

INTRODUCTION

This case presents an outrageous application of the “public

welfare offense” doctrine. Under Tenth Circuit jurisprudence,

innocent conduct becomes criminal--a snowmobiler loses his

way in a snowstorm and is convicted of possessing and

operating a motor vehicle in an unmarked Wilderness Area.

This is contrary to Supreme Court precedent and an assault on

common sense. Only in very limited circumstances has this"

Court inferred from congressional silence that Congress did not

intend to require proof of criminal intent to establish an offense.

However, some lower courts are regularly making just such an

inference.

3

To be sure, strict criminal liability eases the prosecution's

path to conviction and facilitates enforcement of the law but only

at the expense of fundamental concepts of fairness and

constitutional principles of due process. This case, and others

like it, turn our traditional values upside down. American

jurisprudence is founded on the bedrock principle that it is better

to let the guilty go free than unfairly punish the innocent. The

idea that one can be held criminally liable, even imprisoned, for

innocent conduct serves no meaningful law enforcement

purpose. It neither reforms conduct nor deters wrongdoing. To

the contrary, it serves only to place retaliation and vengeance as

the motivation for public prosecution.

Strict criminal liability for ordinary acts is reminiscent of

those immature systems of law whereby a tribunal is convened

only to establish guilt for enemies of the state and not to

determine innocence. This type of process is incompatible with

a free society and should not be countenanced by this Court, or

any other. For this reason, this Court should grant the petition

for writ of certiorari and place meaningful limits on the

expanding scope of the “public welfare offense” doctrine.

Virtually all of our criminal laws serve to protect public health

and welfare. All of us are capable of unwitting acts that put us

in conflict with such laws. This Court should not allow federal

statutes to be read to dispense with a mens rea where doing so

would criminalize a broad range of apparently innocent conduct.

STATEMENT OF THE CASE

Robert “Bobby” Unser and a friend were snowmobiling in

Southern Colorado in the area of the Rio Grande National

Forest. During their venture, sudden winds blew fallen snow in

their path reducing visibility to near zero. In the process of

finding their way back to their starting point, Unser and his

friend became lost. Unser’s friend drove off into a ravine where

his snowmobile stuck. The two men continued on Unser’s

snowmobile until it quit. Believing themselves in danger, they

tried walking out of the area. However, by nightfall, they were

4

still lost and had to pass the night in a snow cave they dug with

their hands. They survived the night but were in dire straits. At

times disoriented and sick, they walked most of the next day and

night until they came on a barn with a phone. They called for

help and were rescued. Unser and his friend were treated at a

local hospital for frostbite, dehydration, and exhaustion.

Three weeks later, Unser contacted the Forest Service for

assistance in finding his snowmobiles. It became apparent from

Unser’s description of the area where he thought he had

abandoned the snowmobiles that he and his friend had

inadvertently entered the South San Juan Wilderness Area while

lost in the snow storm. A Forest Service regulation prohibited

the possession or use of a motorized vehicle in the Wilderness

Area and imposed a criminal penalty of up to six months in jail

or $5,000 in fines, or both. Unser was cited for violating this

regulation. He was subsequently convicted of a misdemeanor,

and fined $75.

On principle, Unser appealed the case arguing he could not

be found guilty of a crime without some knowledge or criminal

intent and, in any event, he was excused because of necessity.

On review, the Tenth Circuit Court of Appeals held that Unser

could be held liable for a crime without any “guilty purpose”

because the regulation prohibiting motorized vehicles in a

Wilderness Area constituted a “public welfare offense.” Such

offenses, the court argued, do not require criminal intent (or

mens rea). The court dismissed the necessity defense for lack

of evidence.

SUMMARY OF THE ARGUMENT

The Tenth Circuit has taken the “public welfare offense” to

a ridiculous extreme, finding that wholly innocent conduct is a

crime. This ruling is important because it draws into question

fundamental principles of criminal law. With the complicity of

the courts, legislators and prosecutorial agencies are seeking

quick convictions based on strict liability offenses. This is most

evident in the increasing enforcement trends under federal

environmental statutes which are readily characterized as “public

welfare” statutes. But when such offenses encompass innocuous

acts, they fail to deter crime and defy common sense. Such

strict regulation violates the long-held doctrine that an injury can

amount to a crime only when inflicted by guilty intention.

The Tenth Circuit read too much into this Court's

acknowledgment in Morissette that a “public welfare offense”

may obviate the intent element of a crime. In Morissette, this

Court found the crime of conversion of government property

required a criminal intent that was lacking in that case as the

accused did not know he was stealing. This Court expressly

affirmed that criminal intent must accompany criminal act and

narrowly circumscribed the “public welfare offense” doctrine.

Only in limited circumstances has this Court inferred from

silence that Congress did not intend to require proof of mens

rea, such as where the penalties are small, conviction does no

grave harm to one’s reputation, and where one assumes a special

responsibility to protect the public from one’s acts. However.

these factors did not converge in this case.

Unser was potentially subject to a criminal penalty of up to

six months in jail or $5,000 in fines, or both. It would be

inconceivable to characterize these penalties as “small.” As a

factual matter, Unser was publicly ridiculed as an environmental

criminal. Therefore, grave harm was done his reputation. As

for his special responsibility to protect the public, Unser had no

reason to believe his innocent outing would become life-

threatening and force him into a technical violation of the law by

mistakenly wandering into a Wilderness Area. Accordingly,

Morissette undercuts the decision below. So does Staples v.

United States, but in a more direct way.

In Staples, this Court applied a common sense examination

to determine whether mere possession of a gun under the

National Firearms Act was a “public welfare offense” that did

not require a criminal intent. Notwithstanding persistent

6

arguments by the government that a gun is a dangerous device

and is highly regulated, this Court found the possession of a gun

was innocent conduct that did not justify eliminating a mens rea

requirement when Congress was silent on the subject. The

impetus for the Court's decision was its concern for

criminalizing a “broad range of apparently innocent conduct.”

Under Staples, the innocence of the conduct ts a factor in

defining a “public welfare offense.” This is the crucial point the

Tenth Circuit missed.

The present case parallels Staples and dictates the same

result. Unser was convicted of possession and operation of a

motor vehicle within a Wilderness Area under a federal statute

that was silent on the intent element. His conduct was innocent

as he was driven by a snow storm out of his way and blundered

into the unmarked area. If possession of a gun is not a “public

welfare offense.” neither is possession and operation of a

snowmobile in extremis. The Tenth Circuit's contrary ruling

defies common sense and establishes a precedent that justifies

criminalizing a broad range of apparently innocent conduct.

This Court should grant review and overturn the decision below.

ARGUMENT

:

THIS COURT SHOULD GRANT THE WRIT OF

CERTIORARI TO RESOLVE AN IMPORTANT

QUESTION OF LAW PERTAINING TO THE

CRIMINALIZATION OF A BROAD RANGE OF

INNOCENT CONDUCT

A. Overzealous Application of the “Public

Welfare Offense” Raises Questions Both

Fundamental and Far-Reaching in

Federal Criminal Law That Warrant a

Response by This Court

The importance of this case cannot be overstated. As the

Tenth Circuit explained:

WSR ng a a

7

This case arises from a story of survival in the

wilderness under extreme conditions and involves

legal issues requiring examination of some of the

most fundamental concepts in criminal law. Like the

parties obviously do, we view the case as having

significance beyond the penalty actually imposed.

Indeed, this case is significant because the lower court

decision authorizes criminal prosecution for inadvertent conduct

that causes no real harm to public health or safety. In fact, this

case turns fundamental concepts of criminal law on their head.

It does away with the presumption of innocence and infers strict

criminal liability from both congressional and agency silence.

The lower court's lavish extension of the so-called “public

welfare offense” exceeds the bounds of reason, good govern-

ment, and the established precedents of this Court.

Regrettably, overzealous application of the “public welfare

offense” seems to be a growing trend as Petitioner points out in

his brief, establishing a conflict among the circuits. Moreover,

there is a growing trend among prosecutorial agencies to rely on

the ease of strict liability statutes to get a quick conviction.

Nowhere is this more evident than in the enforcement of our

federal environmental laws.

In a recent law review article, Criminal Enforcement of

Environmental Laws, 10 Colorado Journal of International

Environmental Law & Policy 39, Kevin Gaynor and Thomas

Bartman catalogue the increase in environmental law enforce-

ment over the last ten or more years. They discuss with some

concern the tendency for courts and prosecutors to raise the

penalty while lowering the bar on convictions. ‘Thus, the

sanctions for environmental crimes increasingly include signi-

ficant terms of imprisonment.” /d. at 40. But, “[u]nder current

case law in most circuits, the standard of intent the government

must show for a conviction is less than a general intent standard

and does not necessarily require proof that the defendant had

knowledge of all the material facts.” /d. at 39.

nina

hee ee ae ea a See

Statistically, the authors report:

EPA referrals of criminal cases to the Justice

Department have steadily and dramatically increased

from 20 in fiscal vear 1982 to 107 in 1992 to a record

278 in 1997. Criminal fines in fiscal vear 1997 were

a record $169.3 million. In fiscal year 1996, 221

defendants were criminally charged with environ-

mental offenses, and individuals were sentenced to

1.116 months in prison.

ld. at 40.

These figures would be something to cheer about if they

included only serious offenses occasioned by willful conduct.

But to the extent they include trivial violations occasioned by

seemingly innocent conduct, these figures are cause for concern.

While cases such as Unser give us a warm feeling because they

add arithmetically to the appearance of vigorous enforcement of

the law, they actually document the eroding rights of the

individual--rights the courts should be protecting but are not.

According to Gaynor and Bartman, the latest amendments

to each major environmental statute included new criminal

penalties and strengthened existing penalties. Some of these

amendments expanded the scope of criminal liability by

introducing lower or no intent crimes, such as mere “negligent”

conduct under the Clean Air Act. /d. at 40. The Clean Water

Act has a similar provision. See 33 U.S.C. § 1319(c\1)

(providing misdemeanor penalty for first time negligent

introduction of unpermitted pollutant into waterway and felony

penalty of up to $50.000 per day of violation and two years in

prison for subsequent violations). Moreover, “[t]he federal

sentencing guidelines governs [sic] the sentencing of individuals

convicted of environmental offenses and has limited the

discretion of judges to mitigate statutory penalties, even in cases

that do not involve environmental injury.” /d. at 41.

Gaynor and Bartman conclude: “The view of

environmental laws as ‘public welfare’ statutes and the

corresponding trend toward liberal construction and precedent

involving nonenvironmental public welfare statutes have

complicated the issue of culpability.” /d. at 59.

This complicated issue of culpability requires clarification

by this Court. Clearly, strict criminal liability offenses are

proliferating. As they expand to encompass inadvertent acts

such as those taken by Unser, they put ordinary citizens at risk

of criminal conviction for wholly innocent conduct. The

imposition of criminal penalties in the absence of a criminal

intent violates the central theme of criminal law that

“wrongdoing must be conscious to be criminal” and is

incompatible with a free society. See Morissette, 342 U.S

at 252.

The observation and admonition of Gaynor and Bartman

warrants the attention of this Court:

EPA Administrator Carol Browner has advocat-

ed recent environmental criminal legislation on

grounds that environmental criminals should be

treated forcefully, like drug dealers. No acknowl-

edgement is made in this connection that drug dealers

usually receive a higher intent standard than has been

the case in the area of environmental crimes. One of

the supporters of the Environmental Crimes and

Enforcement Act of 1996, Senator Frank Lautenberg,

noted that it was “aimed at bad actors who violate our

environmental laws purposely, intentionally, or with

knowing disregard for the impact of their actions.”

Environmental Crimes and Enforcement Act of 1996,

S. 2096, 104th Cong. (1996). These are clearly the

proper targets of criminal prosecution, rather than the

persons potentially and actually reached by the slip

10

and-fall negligence standard that has generally been

followed in this area.

Gavnor and Bartman, 10 Colo. J. Int'l Env. L & Poly at n. 334.

To protect the innocent from criminal conviction, this

Court should grant the writ of certiorari and reverse the lower

court.

B. Statutory Silence Does Not Imply Congress

Intended to Eliminate a Criminal Intent Element

Because Under Morissette the Existence of a Mens

Rea \s the Rule of Law, Not the Exception

The Tenth Circuit recognized but did not seriously consider

the implication of Congress” silence regarding the knowledge

requirement of a crime under 16 U.S.C. § 551. That provision

authorized the Secretary of Agriculture to promulgate regulations

for the protection of national forests and to impose a penalty of

not more than $5,000, or imprisonment for not more than six

months, or both. The regulation under which Unser was

prosecuted provided:

The following are prohibited in a National Forest

Wilderness:

(a) Possessing or using a motor vehicle,

motorboat or motorized equipment except as

authorized by Federal Law or regulation.

36 C.F.R. § 261.16.

The lower court acknowledged that this language reveals

nothing about the intent of Congress respecting a mens rea

element and even cited this Court's reaffirmation in Staples v.

United States, 511 U.S. 600, that “silence on this point by itself

does not necessarily suggest that the [legislators] intended to

dispense with a conventional mens rea element.” Unser v.

United States, 165 F.3d 755, 762 (1999) (citing Staples,

511 U.S. at 605). However, this reference proved to be no more

1]

than lip service as the court seized on the notion of a “public

welfare offense.” as expressed by this Court in Morissette v.

United States, 342 U.S. 246.

But Morissette limits rather than expands the “public

welfare offense” doctrine. So that case undercuts the lower

court opinion here. Morissette took some old shell casings from

an Air Force bombing range which he believed were abandoned

scrap. After selling these casings for $84, Morissette was

convicted of knowingly stealing and converting government

property and sentenced to imprisonment for two months or to

pay a fine of $200. The lower court ruled the “knowing” offense

did not require a criminal intent, basing its ruling on the failure

of Congress to express such a requisite and this Court's

decisions in United States v. Behrman, 258 U.S. 280 (1922), and

United States v. Balint, 258 U.S. 250 (1922), leading to the so-

called “public welfare offenses.” See Morissette, 342 U.S.

at 250.

This Court acknowledged it had, on occasion, construed

mere omission of “any mention of criminal intent as dispensing

with it.” but this Court reversed the lower court in Morissette

pointing out with great care the dangers of a verbatim reading of

its prior cases:

If they be deemed precedents for principles of

construction generally applicable to federal penal

Statutes, they authorize this conviction. Indeed, such

adoption of the literal reasoning announced in those

cases would do this and more--it would sweep out of

all federal crimes, except when expressly preserved,

the ancient requirement of a culpable state of mind.

We think a resume of their historical background is

convincing that an effect has been ascribed to them

more comprehensive than was contemplated and one

inconsistent with our philosophy of criminal law.

Id. at 250.

This Court's philosophy of criminal law was eloquently

Stated this way:

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 | 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.

Id.

The Tenth Circuit in this case is guilty of too much

literalness and ascribing more to the “public welfare offense”

doctrine than was contemplated. Its holding that a purely

innocent act may subject the actor to criminal liability is

inconsistent with any fair-minded philosophy of criminal law

and sweeps within its arms a whole array of federal statutes--

particularly those designed for natural resource protection--that

do not expressly preserve a mens rea requirement.

In Morissette, this Court characterized “public welfare

offenses” as those cases in which the penalties are small.

conviction does no grave harm to one’s reputation, and where

one assumes a special responsibility to protect the public from

one’s acts. /d. at 256. But these factors converge rarely and, in

this case, not all.

As Petitioner aptly explains, Unser was potentially subject

to a criminal penalty of up to six months in jail or $5,000 in

fines, or both. It is inconceivable that anyone's liberty could be

taken away for six months and be characterized as a “small”

PRIS are ant SS gee iF I TE LO ELL

13

penalty. Our forefathers would not have sold their freedom so

cheaply. As to reputation, Unser was openly ridiculed in the

press for his wanton destruction of the environment, although his

trespass was inadvertent and caused no harm. Even a

misdemeanor conviction carries a taint no innocent party should

have to bear. How could any of us explain six months in jail to

a young child or a friend or co-worker? It is both callous and

ridiculous to treat any criminal violation as of little consequence

and no grave harm to one’s reputation. With respect to a special

responsibility to protect the public, this factor simply does not

apply to Unser’s situation. He had no reason to believe his

innocent outing would become life threatening and force him

into a technical violation of the law.

This assessment demonstrates how unlikely it is that

Congress ever intended to hold someone in Unser’s position

criminally liable without a proven criminal intent. The Tenth

Circuit interpretation sweeps too widely. Virtually all of our

criminal laws serve to protect public health and welfare. All of

us are capable of unwitting acts that put us in conflict with such

laws. This Court should not allow federal statutes to be read to

dispense with a mens rea where doing so would make criminals

out of ordinary citizens.

Accordingly, the conclusion of this Court in Morissette has

equal force here: “We think presumptive intent has no place in

this case.” Morissette, 342 U.S. at 275. To protect fundamental

freedoms and reinforce the rule of law, this Court should grant

the writ of certiorari and limit the lower court’s expansive

reading of the “public welfare offense” cases.

14

C. This Court’s Holding in Staples Undercuts the

Lower Court's Expansive Reading of the “Public

Welfare Offense” Because This Court Will Not

Infer from Silence That Congress Intended to

Criminalize Apparently Innocent Conduct

The Tenth Circuit was so taken with the dicta of this

Court’s 1952 Morissette decision, that it all but ignored the more

recent precedent of Staples v. United States, 511 U.S. 600. The

point the lower court missed in Stap/es is that the innocence of

the regulated conduct is a factor in defining a “public welfare

offense.”

In Staples, as in the present case, Congress was silent with

respect to the mens rea element of a crime. Under The National

Firearms Act. 26 U.S.C. §§ 5801-5872, the petitioner was

convicted of possession of a “machine gun.” The Act made it a

crime, punishable by up to ten years in prison for any person to

possess a firearm, including a “machine gun,” that is not

properly registered. Petitioner's unregistered gun met the

definition of a “machine gun,” but he argued his knowledge of

the status of his gun must be proven. This Court agreed,

holding:

As in our prior cases, our reasoning depends upon a

commonsense evaluation of the nature of the

particular device or substance Congress has subjected

to regulation and the expectations that individuals

may legitimately have in dealing with the regulated

items.

Staples, 511 U.S. at 619.

This common sense evaluation focused on the innocence

of owning a gun where possession was a crime. The

government argued Congress intended the Act to regulate and

restrict the circulation of dangerous weapons and so falls under

the “public welfare” rubric. This Court acknowledged, as it had

in Morissette, that in some limited circumstances it had inferred

15

from silence that Congress did not intend to require proof of

criminal intent to establish an offense. Such circumstances

included, for example, the undocumented sale of narcotics

(United States v. Balint, 258 U.S. 250) and the unregistered

possession of grenades (United States v. Freed, 401 U.S. 601

(1971)). But this Court castigated the government for glossing

over the distinction between grenades and guns, and ignoring

“the particular care [the Court had] taken to avoid construing a

statute to dispense with mens rea where doing so would

‘criminalize a broad range of apparently innocent conduct.’”

Staples, 511 U.S. at 610 (citing Liparota v. United States,

471 U.S. 419 (1985)).

One case in which this Court took particular care was

Liparota v. United States, 471 U.S. 419 (1985). In that case,

this Court considered a statute that criminalized the unauthorized

acquisition or possession of food stamps. No mens rea was

mentioned. This Court held the statute required proof that the

defendant knew his possession of food stamps was unauthorized,

“largely because dispensing with such a mens rea requirement

would have resulted in reading the statute to outlaw a number of

apparently innocent acts.” Staples, 511 U.S. at 610. So it is in

the present case. Unser’s possession and operation of his

snowmobile was both legal and innocent. The violation of the

Wilderness Area regulation only came about by happenstance

when Unser and his friend lost their way and wandered into the

unmarked area in a snow storm. The Tenth Circuit ruling in this

case results in the very evil this Court was trying to avoid in

Liparota--outlawing apparently innocent acts.

If we were to accept as a general rule the Govern-

ment’s suggestion that dangerous and regulated items

place their owners under an obligation to inquire at

their peril into compliance with regulations, we would

undoubtedly reach some _ untoward results.

Automobiles, for example, might also be termed

“dangerous” devices and are highly regulated at both

16

the state and federal levels. Congress might see fit to

criminalize the violation of certain regulations

conceming automobiles, and thus might make it a

crime to operate a vehicle without a properly

functioning emission control system. But we

probably would hesitate to conclude on the basis of

silence that Congress intended a prison term to apply

to a car owner whose vehicle's emission levels,

wholly unbeknownst to him, began to exceed legal

limits between regular inspections.

Id. at 614.

Had this Court wanted to expand the reach of “public

welfare offenses,” it could have characterized the vehicle

emission exceedence as such a crime and ignored Congress’

silence regarding mens rea, as did the Tenth Circuit in this case.

Instead, this Court stated it would hesitate--on the basis of

silence—to find Congress intended to abrogate criminal intent for

innocent parties.

But Unser presents even a stronger case for hesitation than

this Court’s hypothetical in Staples. Snowmobiles may be

dangerous, but no more than cars and certainly less than guns.

They are not as highly regulated as cars and Unser’s entrance

into the Wilderness Area under extremis and zero visibility

conditions was wholly unbeknownst to him. If the lower courts

don’t hesitate to conclude on the basis of silence that Congress

intended a prison term to apply to such a case, any conduct, no

matter how innocent, could be brought within the embrace of a

“public welfare offense.”

But in Staples the government doggedly argued the

National Firearms Act should be interpreted on the assumption

that “one would hardly be surprised to learn that owning a gun

is not an innocent act.” /d. at 610. In response, this Court

declared that assumption is not supported by common

experience and stated that guns, in general, are not “deleterious

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devices or products or obnoxious waste materials” that put their

Owners on notice that they stand “in responsible relation to a

public danger.” /d. at 610-11. The government protested,

however, that guns, unlike food stamps but like grenades and

narcotics, are potentially harmful devices. This Court's answer

is instructive:

Under this view, it seems that Liparota 's concern for

criminalizing ostensibly innocuous conduct 1s

inapplicable whenever an item is_ sufficiently

dangerous--that is, dangerousness alone should alert

an individual to probable regulation and justify

treating a statute that regulates the dangerous device

as dispensing with mens rea. But that an item is

“dangerous,” in some general sense, does not

necessarily suggest, as the Government seems to

assume, that it is not also entirely innocent. Even

dangerous items can, in some cases, be so

commonplace and generally available that we would

not consider them to alert individuals to the likelihood

of strict regulation. As suggested above, despite their

potential for harm, guns generally can be owned in

perfect innocence.

Id. at 611.

If the innocent possession of a deadly gun does not qualify

as a “public welfare offense,” how could the innocent possession

of a snowmobile in an unmarked forest? As this Court

Suggested, “a commonsense evaluation” of the nature of the

regulated device and the expectations individuals have in dealing

with the device, dictate such innocent conduct is not a “public

welfare offense” for which this Court would infer from silence

that Congress intended to do away with a guilty intent. Unser

was indeed surprised, even amazed, that his possession of a

snowmobile in a life or death situation was not an innocent act.

At no time was Unser on notice that he stood “in responsible

relation to a public danger” on a par with those who deal in

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narcotics or possess hand grenades. Also, the lower court

readily concedes that Unser’s conduct “does not seem to

seriously threaten a community's health or safety.” Unser,

165 F.3d at 762-63.

Therefore. this Court's conclusion in Staples applies

equally to this case:

As we noted in Morissette, the “purpose and obvious

effect of doing away with the requirement of a guilty

intent is to ease the prosecution's path to conviction.”

.. We are reluctant to impute that purpose to

Congress where, as here, it would mean easing the

path to convicting persons whose conduct would not

even alert them to the probability of strict regulation

in the form of a statute such as [the National Firearms

Act].

Staples, 511 U.S. at 615-16.

This Court should grant the writ of certiorari and overturn

the decision below. That decision expands “public welfare

offenses” to include wholly innocent conduct.

CONCLUSION

In Morissette, this Court stated:

This would have remained a profoundly insignificant

case to all except its immediate parties had it not been

so tried and submitted to a jury as to raise questions

both fundamental and far-reaching in federal criminal

law, for which reason we granted certiorari.

Morissette, 342 U.S. at 247.

That statement could be said of the present case. An

otherwise “insignificant case” has been so litigated as to require,

once again, an examination of some of the most fundamental

concerts in criminal law. Over the past 47 years, the lower

courts have taken this Court’s acknowledgment of the “public

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welfare offense” doctrine in Morissette to extremes, finding

criminal even the most innocuous conduct. Without the inter-

vention of this Court, the trend will continue at the cost of

individual freedom and liberty--a price too high to pay for

prosecutorial convenience. This Court should grant review and

overturn the lower court decision.

DATED: May, 1999.

Respectfully submitted,

*M. REED HOPPER

ROBIN L. RIVETT

*Counsel of Record

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amicus Curiae

Pacific Legal Foundation