# Amicus Curiae Brief — Unser v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1545%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 809

## Text

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

17

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

18

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1545%3A2. Public record. Not legal advice.