Mens Rea Reform: A Brief Overview

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Mens Rea Reform: A Brief Overview

Summary

Criminal justice reform has played a major role in the congressional agenda over the past several

Congresses, with sentencing reform bills making up the majority of the legislative action on this

issue. However, some reformers have also highlighted the need to strengthen the mens rea

requirements in federal law. Mens rea, Latin for “guilty mind,” is the mental state the government

must prove to secure a conviction. For instance, some laws require that the prosecution

demonstrate that the defendant intentionally have committed the act in question—that is,

committing the act with the conscious desire for the harmful conduct to occur—while others

require that the act be done knowingly or with reckless disregard of the harm it may pose. Some

modern statutes require no mens rea at all; these are commonly referred to as strict liability

offenses.

Unlike the Model Penal Code, which includes four categories of “culpability” or moral

blameworthiness, the Federal Criminal Code, found largely in Title 18, does not create uniform

mens rea standards. Instead, each statute may or may not contain a mens rea element depending

on the statute. Supplementing the statutory text, the Supreme Court has developed a set of

presumptions to apply when a mens rea term is omitted. However, the Court has applied these

rules in a somewhat ad hoc fashion depending on a variety of factors, including the origin of the

offense in question (e.g., common law or statutory); the severity of the penalty imposed; and the

purpose behind the law (e.g., penal or regulatory).

In an effort to bring greater clarity to this area of criminal law, Senator Orin Hatch and

Representative James Sensenbrenner have introduced, respectively, the Mens Rea Reform Act of

2015 (S. 2298) and the Criminal Code Improvement Act of 2015 (H.R. 4002). Although they take

different approaches, these bills aim to create a uniform mens rea standard across federal law. On

January 20, 2016, the Senate Judiciary Committee held a hearing on S. 2298; no further action

has been taken on this bill. The House Judiciary Committee held a markup of H.R. 4002 on

November 18, 2015, and ordered the bill to be reported to the full House.

Some have argued that strengthening federal mens rea standards would permit corporate actors to

evade prosecution under federal statutes aimed at protecting the health, safety, and welfare of the

citizenry—including environmental and workplace laws. Proponents have countered that the bills

are not designed to simply protect corporate wrongdoers, but are intended to ensure that any

person is not prosecuted for a crime he did not intend to commit.

To provide context for this debate, this report provides a brief background on the history of mens

rea, including an exploration of the Supreme Court’s default mens rea rules; analyzes the various

bills that intend to create new default rules; and applies these rules to various existing federal

criminal offenses.

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Mens Rea Reform: A Brief Overview

Contents

Introduction ..................................................................................................................................... 1

Background ..................................................................................................................................... 2

Legislation to Create Default Mens Rea Rules................................................................................ 5

Mens Rea Reform Act of 2015 (S. 2298) .................................................................................. 5

Criminal Code Improvement Act of 2015 (H.R. 4002)............................................................. 6

Application of Legislation to Existing Offenses ....................................................................... 8

Traditional Federal Crimes ................................................................................................. 8

Regulatory Offenses.......................................................................................................... 12

Conclusion ..................................................................................................................................... 19

Contacts

Author Contact Information .......................................................................................................... 19

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Mens Rea Reform: A Brief Overview

Introduction

Criminal justice reform has played a major role in the congressional agenda over the past several

Congresses, with sentencing reform bills making up the majority of the legislative action on this

issue.1 However, some reformers have also highlighted the need to strengthen the mens rea

requirements in federal law. Mens rea, Latin for “guilty mind,” is the mental state the government

must prove to secure a conviction.2 For instance, some laws require that the prosecution

demonstrate that the defendant intentionally committed the act in question—that is, committing

the act with the conscious desire for the harmful conduct to occur—while others require that the

act be done knowingly or with reckless disregard of the harm it may pose. Some modern statutes

require no mens rea at all; these are commonly referred to as strict liability offenses.

Unlike the Model Penal Code, which includes four categories of “culpability” or moral

blameworthiness,3 the Federal Criminal Code, found largely in Title 18, does not create uniform

mens rea standards. Instead, each statute may or may not contain a mens rea element depending

on the statute. Supplementing the statutory text, the Supreme Court has developed a set of

presumptions to apply when a mens rea term is omitted. However, the Court has applied these

rules in a somewhat ad hoc fashion depending on a variety of factors, including the origin of the

offense in question (e.g., common law or statutory); the severity of the penalty imposed; and the

purpose behind the law (e.g., penal or regulatory).

In an effort to bring greater clarity to this area of criminal law, Senator Orin Hatch and

Representative James Sensenbrenner have introduced, respectively, the Mens Rea Reform Act of

2015 (S. 2298)4 and the Criminal Code Improvement Act of 2015 (H.R. 4002).5 Although they

take different approaches, these bills aim to create a uniform mens rea standard across federal

law. On January 20, 2016, the Senate Judiciary Committee held a hearing on S. 2298;6 no further

action has been taken on this bill. The House Judiciary Committee held a markup of H.R. 4002 on

November 18, 2015, and ordered the bill to be reported to the full House.

Some have argued that strengthening federal mens rea standards would permit corporate actors to

evade prosecution under federal statutes aimed at protecting the health, safety, and welfare of the

citizenry—including environmental and workplace laws.7 At the January 20 Senate Judiciary

Committee hearing, Assistant Attorney General Leslie Caldwell argued that “[a]pplying a default

mens rea to these statutes might insulate culpable individuals, especially senior corporate

executives, who deliberately close their eyes to what otherwise would be obvious to them.”8

See, e.g., Smarter Sentencing Act, S. 502, H.R. 920, 114th Cong. (2015); Justice Safety Valve Act of 2015, S. 353,

H.R. 706, 114th Cong. (2015).

See BLACK’S LAW DICTIONARY (10th ed. 2014) (“The state of mind that the prosecution, to secure a conviction, must

prove that a defendant had when committing a crime.”).

The Model Penal Code (MPC) is a set of model provisions created by the American Law Institute for adoption by the

states. See generally WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW §1.1(b) (2d ed. 2003). The MPC sets forth and

defines four “minimum requirements of culpability”: purposely, knowingly, recklessly, and negligently. See MODEL

PENAL CODE §2.02.

S. 2298, 114th Cong., 1st Sess. (2015).

H.R. 4002, 114th Cong. 1st Sess. (2015).

See The Adequacy of Criminal Intent Standards in Federal Prosecutions: Hearing Before the Senate Judiciary

Committee, 114th Cong., 2nd Sess. (2016) [hereinafter Senate Judiciary Hearing].

See Editorial Board, Don’t Change the Legal Rules on Intent, N.Y. TIMES (December 5, 2015), available at

http://www.nytimes.com/2015/12/06/opinion/sunday/dont-change-the-legal-rule-on-intent.html?_r=0.

Senate Judiciary Hearing, supra note 6, at 3 (written statement of Leslie Caldwell, Assistant Attorney General),

(continued...)

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Mens Rea Reform: A Brief Overview

Proponents have countered that the bills are not designed to simply protect corporate wrongdoers,

but are intended to ensure that persons are not prosecuted for a crime they did not intend to

commit or know they were committing.9

To provide context for this debate, this report provides a brief background on the history of mens

rea, including an exploration of the Supreme Court’s default mens rea rules; analyze the various

bills that intend to create new default rules; and applies these rules to various existing federal

criminal offenses.

Background

A criminal offense usually consists of both a prohibited act (the “actus reus”) and a guilty mind

(the “mens rea”).10 That is, in order to secure a conviction, the prosecution must prove beyond a

reasonable doubt that the defendant both committed the harmful act and did so with the requisite

mental state. One of the primary bases of criminal law—moral culpability—can be found

embedded within the concept of mens rea: one must have intended to commit the act to be

sufficiently blameworthy. This notion was observed by Justice Robert Jackson:

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.11

Whether an offense requires proof of a mens rea element is primarily a question of statutory

interpretation: did Congress intend to include a mens rea element when drafting the statute?12

This is so, the Supreme Court has observed, because the “definition of a criminal offense is

entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of

statute.”13 However, the express language of a criminal statute is not always clear (1) which

mental element should apply to a particular statute; or (2) to which elements of the crime a mens

rea element should apply. To remedy this lack of textual clarity, the Court has applied a set of

mens rea presumptions, which can be rebutted by evidence that Congress intended otherwise.

The Supreme Court has held, for instance, that, absent a contrary intent from Congress, federal

courts should apply the presumption that a defendant “know the facts that make his conduct

illegal” if the offense is lacking such a “knowing” mens rea element.14 The 1952 case Morisette v.

(...continued)

available at https://www.judiciary.senate.gov/imo/media/doc/01-20-16%20Caldwell%20Testimony.pdf.

See John Malcolm, The Pressing Need for Mens Rea Reform, THE HERITAGE FOUNDATION (September 1, 2015),

available at http://www.heritage.org/research/reports/2015/09/the-pressing-need-for-mens-rea-reform#_ftn1.

LaFave, supra note 3, at §5.1.

Morisette v. United States, 342 U.S. 246 (1952).

See Staples v. United States, 511 U.S. 600, 604 (1994).

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

See Staples, 511 U.S. at 619 (“Silence on this point by itself does not necessarily suggest that Congress intended to

dispense with a conventional mens rea element, which would require that the defendant know the facts that make his

conduct illegal.”); Id. at 620 (Ginsburg, concurring) (“Although the word ‘knowingly’ does not appear in the statute’s

text, courts generally assume that Congress, absent a contrary indication, means to retain a mens rea requirement.”);

United States v. Bailey, 444 U.S. 394, 408 (1980) (“[T]he cases have generally held that, except in narrow classes of

offenses, proof that the defendant acted knowingly is sufficient to support a conviction. Accordingly, we hold that the

prosecution fulfills its burden under §751(a) if it demonstrates that an escapee knew his actions would result in his

leaving physical confinement without permission.”); Morisette v. United States, 342 U.S. 246, 270-71 (1952)

(continued...)

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United States cemented this principle in federal criminal jurisprudence.15 There, the defendant

challenged his prosecution under a federal theft statute, claiming that he did not intend to steal

government property, as he believed the shell casings he removed from a bombing range—which

served as the basis of his prosecution—were abandoned by the federal government.16 The district

court judge, however, refused to instruct the jury on the defendant’s alleged innocent intention,

instead permitting the jury to presume intent based on the act itself.17 The Court reversed the

appellate court, which had upheld the district court judgment, and held that the government

should have been required to demonstrate that the defendant “must have had knowledge of the

facts, though not necessarily the law, that made the taking a conversion.”18

This approach was later applied in Staples v. United States to require the government to prove the

defendant knew the attributes of a firearm he possessed that brought it within the registration

requirements of the National Firearms Act.19 In that case, the defendant was prosecuted for

possessing an unregistered machinegun in violation of 26 U.S.C. Section 5485(d). The defendant

asserted at trial that the government was required to prove that he knew the gun in question had

the characteristics that brought it within the statute—namely, its capability of firing

automatically—but the district court refused to provide such an instruction to the jury, and the

appeals court affirmed his conviction.20 With no explicit mens rea element found in the text of the

statute, Justice Thomas, writing for the majority, weighed three factors in determining whether

the presumption of a mens rea element should apply. First, the Court looked to the nature of the

device regulated, and found that possessing a firearm did not pose the same level of danger as

other instances where the Court declined to impose a mens rea element (e.g., possessing grenades

or controlled substances). Second, and tied to the first factor, the Court found that firearms are not

sufficiently dangerous to put an owner on notice of the federal registration requirements. Third,

the majority looked to the severity of the penalty, and found that Congress would likely not intend

to forgo the mens rea requirement where it imposed a penalty of up to 10 years’ imprisonment.21

Based on these three factors, the Court held that the government must prove that the defendant

knew the facts that made his otherwise lawful conduct unlawful—that is, that he knew he

possessed a firearm subject to the registration requirements.22

The Court has held that the presumption of a mens rea element does not apply, however, in the

context of certain so-called public welfare or regulatory offenses. In one of the earliest cases

applying this theory, Balint v. United States, the Court upheld the application of a federal drug

offense that contained no mens rea element to a defendant who claimed that he had no knowledge

of the nature of the substance he was selling.23 The Court noted that reviewing courts should look

to the purpose of the statute to determine if the mens rea element should be omitted.24 In Balint,

(...continued)

(“[K]nowing conversion requires more than knowledge that defendant was taking the property into his possession. He

must have had knowledge of the facts, though not necessarily the law, that made the taking a conversion.”).

Morisette v. United States, 342 U.S. 246 (1952).

Id. at 248-49.

Id. at 249-50.

Id. at 270-71.

Staples, 511 U.S. at 618-19.

Id. at 604.

Id. at 616-17.

Id. at 618-19.

United States v. Balint, 258 U.S. 250, 254 (1922).

Id. at 252.

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the fact that the “emphasis of the statute” was “upon achievement of some social betterment

rather than punishment of the crimes” helped persuade the Court that the mens rea element could

properly be omitted from the statute. Similarly, in United States v. Dotterweich, the Court rejected

the application of a mens rea element to a criminal provision of the Federal Food, Drug, and

Cosmetic Act, noting that in the “interest of the larger good it puts the burden of acting at hazard

upon a person otherwise innocent but standing in responsible relation to a public danger.”25

In addition to interpreting certain statutes to require a mens rea element where one was not

explicitly included in the text, the Court has also applied an existing mens rea element to all

elements of a statute where a statute was unclear as to which elements it should apply. For

instance, in United States v. X-Citement Video, Inc., the Court held that unless congressional

intent indicates otherwise, “the standard presumption in favor of a scienter requirement should

apply to each of the statutory elements that criminalize otherwise innocent conduct.”26 Based on

an interpretation of Congress’s intent, the federal courts have found that this presumption did not

apply in various contexts, including public welfare offenses27 and jurisdictional elements.28

Distilling this case law, a reviewing court would likely assess several factors for deciding whether

to presume a mens rea element in the face of statutory silence. First, a court will ask whether the

crime is of common law or statutory origin. In Morisette, Justice Jackson noted how the common

law origins of the federal theft statute dictated that a mens rea element should be required:

Congressional silence as to mental elements in an Act merely adopting into federal

statutory law a concept of crime already so well defined in common law and statutory

interpretation by the states may warrant quite contrary inferences than the same silence in

creating an offense new to general law, for whose definition the courts have no guidance

except the Act.29

Put another way, in the face of statutory silence, it is presumed that Congress intended to borrow

common law concepts, including mens rea, when it enacts a crime found at common law, like the

theft statute in Morisette.

Second, a court likely would assess the severity of the penalty imposed by the statute. In reading

the firearms statute in Staples to require a mens rea element, Justice Thomas placed significant

weight on the fact that the offense carried with it a potential 10-year penalty. He observed that

See United States v. Dotterweich, 320 U.S. 277, 284 (1943); see also United States v. Wilson, 565 F.3d 1059, 106869 (8th Cir. 2009) (rejecting application of mens rea element to age of victim under child pornography statute, and

noting that “the background assumption of mens rea is inappropriate for some strict liability sex crimes, such as

statutory rape ... [and that] [t]he analogy of [child pornography] producers to statutory rapists serves to overcome the

background presumptions of mens rea and scienter”); United States v. Martinez-Morel, 118 F.3d 710, 716 (10th Cir.

1997) (rejecting application of “knowingly” mens rea element to reentry element under 8 U.S.C. §1326(a), which

concerns the unauthorized reentry of an alien into the United States, noting that §1326 was considered to be a

“regulatory measure” that “indicate[d] a presumption of strict liability.”).

See United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).

See United States v. International Minerals Chemical Corp., 402 U.S. 558, 559 (1971) (rejecting application of

“knowingly” mens rea element to violation of Interstate Commerce Commission regulation); United States v. Billie,

667 F. Supp. 1485, 1492 (S.D. Fla. 1987) (rejecting application of “knowingly” mens rea element in Endangered

Species Act to the specific type of species killed by defendant).

See United States v. Feola, 420 U.S. 671, 677 n.9 (1975) (“[T]he existence of the fact that confers federal jurisdiction

need not be one in the mind of the actor at the time he perpetrates the act made criminal by the federal statute. ); see

also United States v. Yermian, 468 U.S. 63 (rejecting application of mens rea element to jurisdictional element in 18

U.S.C. §1001); United States v. Cooper, 482 F.3d 658, 668 (4th Cir. 2007) (rejecting application of mens rea element to

jurisdictional element in various criminal provisions of the Clean Water Act).

Morisette, 342 U.S. at 262.

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“where, as here, dispensing with mens rea would require the defendant to have knowledge only of

traditionally lawful conduct, a severe penalty is a further factor tending to suggest that Congress

did not intend to eliminate a mens rea requirement.”30 Similarly, in outlining the characteristics of

public welfare offenses, Justice Jackson noted in Morisette that “penalties commonly are

relatively small, and conviction does not [pose] grave damage to an offender’s reputation.”31

Third, a court likely would assess the purpose of a statute to determine if a mens rea element

should attach. For instance, where the purpose behind a statute is to punish a wrongdoer—such as

the failure to register a firearm,32 the improper use of food stamps,33 or the theft of government

property34—the Supreme Court has said that the mens rea presumption should apply. However,

where the primary intent is to protect the health, safety, and welfare of the populace—such as

prohibiting the possession of a grenade35 or shipping misbranded drugs in interstate

commerce36—the Court has not required a mens rea element.

Legislation to Create Default Mens Rea Rules

In assessing whether a mens rea element should attach to a certain offense, the courts primarily

focus on congressional intent: did Congress intend to include a mens rea element when a statute

is silent or, alternatively, did Congress intend to apply an existing mens rea element to every

element of the offense? Note that the Court’s default rules are judicial presumptions. If a statute

provides for a mens rea element, that provision would control, and the presumption would not

apply. Several bills introduced in the 114th Congress would create such a set of default rules,

obviating the need to rely on the Court’s presumptions. The Mens Rea Reform Act of 2015 (S.

2298) and the Criminal Code Improvement Act of 2015 (H.R. 4002) would create a set of default

mens rea rules that would apply across the United States Code. After analyzing the text of each

bill, this report addresses how these bills might be interpreted to apply to various federal offenses.

Mens Rea Reform Act of 2015 (S. 2298)

The Mens Rea Reform Act of 2015, introduced by Senator Orin Hatch, would provide as follows:

(b) DEFAULT REQUIREMENT.—Except as provided in subsections (c) and (d), a covered

offense shall be construed to require the Government to prove beyond a reasonable doubt

that the defendant acted—

(1) with the state of mind specified in the text of the covered offense for each

element for which the text specifies a state of mind; and

(2) willfully, with respect to any element for which the text of the covered offense

does not specify a state of mind.

if the text of a covered offense specifies the state of mind required for commission of the

covered offense without specifying the elements of the covered offense to which the state

Staples, 511 U.S. at 618-19.

Morisette, 342 U.S. at 256.

Staples, 511 U.S. at 618-19.

Liparota v. United States, 471 U.S. 419, 434 (1985).

See Morisette, 342 U.S. at 273.

See United States v. Freed, 401 U.S. 601, 609 (1971).

See United States v. Dotterweich, 320 U.S. 277, 281 (1943).

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of mind applies, the state of mind specified shall apply to all elements of the covered

offense, unless a contrary purpose plainly appears.37

(d) [Enumerated exceptions].

On January 20, 2016, the Senate Judiciary Committee held a hearing on S. 2298.38 No further

legislative action has been taken on this bill.

S. 2298 appears to contemplate the following procedure:39 first, a reviewing court may be called

upon to assess whether one of the exceptions in subsection (d) applies. If so, the other provisions

of the bill’s mens rea framework would not appear to apply. If none of the exceptions in

subsection (d) applies, the court would likely move on to subsection (c). If the covered offense

contains a mens rea element, the court is instructed to apply it to each element of the offense,

unless a contrary purpose plainly appears (for example, if the element is jurisdictional40). If the

statute does not have a mens rea element, the court would likely move on to subsection (b) and

apply the mens rea of “willfully” to each element of the offense.41

Criminal Code Improvement Act of 2015 (H.R. 4002)

The Criminal Code Improvement Act of 2015, introduced by Representative James

Sensenbrenner, would provide as follows:

§ 11. Default state of mind proof requirement in Federal criminal cases

If no state of mind is required by law for a Federal criminal offense—

(1) the state of mind the Government must prove is knowing; and

(2) if the offense consists of conduct that a reasonable person in the same or similar

circumstances would not know, or would not have reason to believe, was unlawful, the

Government must prove that the defendant knew, or had reason to believe, the conduct

was unlawful.42

On November 18, 2015, the House Judiciary Committee held a markup on H.R. 4002, and voted

to report the bill out of committee on a voice vote.43 Representative Sensenbrenner observed at

the markup that H.R. 4002 “creates a default mens rea standard for federal criminal laws which

S. 2298, 114th Cong. (2015).

See The Adequacy of Criminal Intent Standards in Federal Prosecutions: Hearing Before the Senate Judiciary

Committee, 114th Cong. (2016).

The uncertain nature of this text was highlighted by at least one witness at the Senate Judiciary Hearing on January

20, 2016. Senate Judiciary Hearing, supra id. (statement of Leslie Caldwell, Deputy Attorney General, Dep’t of Justice)

(“It is entirely unclear whether a default mens rea would apply to all elements of a criminal offense or only to certain

(as-yet unspecified) elements.”).

See United States v. Feola, 420 U.S. 671, 676 n.9 (1975) (recognizing that “the existence of the fact that confers

federal jurisdiction need not be one in the mind of the actor at the time he perpetrates the act made criminal by the

federal statute”).

Subsection (b)(1) states that “the state of mind specified in the text of the covered offense” shall apply to “each

element for which the text of the covered offense specifies a state of mind.” However, it appears that subsection (c)

would apply if the offense specified a mens rea element, apparently rendering subsection (b)(1) superfluous.

H.R. 4002, 114th Cong. (2015).

See Markup of H.R. 2830; H.R. 3713; H.R. 4002; H.R. 4003; H.R. 4001; H.R. 4023 Before the House Judiciary

Committee, 114th Cong. 53 (2015) [hereinafter House Judiciary Markup], available at https://judiciary.house.gov/wpcontent/uploads/2016/02/11.18.15-Markup-Transcript.pdf.

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will apply in the limited situation where federal law does not provide an intent requirement.”44

However, if enacted into law, H.R. 4002 might raise several interpretive questions.45

First, it is not precisely clear from the bill’s text as to when the threshold trigger “no state of mind

is required by law” is met. As several commentators have questioned,46 does “required by law”

mean that the mens rea element must be found in the text of the statute, or would a judicial

interpretation that requires such an element also qualify under this requirement? Additionally, if

the text contains a mens rea element, but does not explicitly state to which of the offenses

elements it should apply, does this qualify as having a state of mind required?

Second, H.R. 4002 does not plainly state to which elements of the crime the “knowing” mens rea

default requirement is intended to apply. Criminal offenses typically have various elements, some

of which the mens rea attaches to, some of which it does not. It is possible that a court would

have to make a determination as to which elements to apply the default mens rea element

“knowing.”

Third, under subsection (2), it appears that a court might have to discern in what instances “a

reasonable person” would not know or would not have reason to know his actions were illegal.47

Generally, when a federal statute uses the phrase “knowing,” the defendant must know the facts

that make his or her conduct illegal. However, subsection (2) would also require that in certain

instances the government must prove that the defendant “knew or had reason to believe [his]

conduct was unlawful.” This is triggered if the “offense consists of conduct that a reasonable

person in the same or similar circumstances would not know, or would not have reason to believe,

was unlawful.” Accordingly, it would appear that if a court finds that a reasonable person would

not know his conduct was illegal, the government would have to prove that the defendant knew or

had reason to know his conduct was illegal.

If enacted into law, it appears the bill would be applied as follows: first, a reviewing court would

have to determine if a state of mind was required by law. This report proceeds under the

assumption that “required by law” means required by the enacted text of the underlying criminal

statute and not simply required by application of judicial presumptions. If the text of the criminal

offense already requires proof of mens rea, H.R. 4002 would not apply. If the text of the offense

does not plainly require a mens rea element, the court would likely apply a “knowing” mens rea.

Lastly, it appears a court would need to assess to which elements the knowing mens rea element

would apply, a question not answered by the text of the statute.

Id. at 56.

See, e.g., Senate Judiciary Hearing, supra note 39 (statement of Leslie Caldwell, Deputy Attorney General, Dep’t of

Justice) (commenting on H.R. 4002, noting “[i]f enacted, prosecutors would find themselves embroiled in litigation

over whether an offense contains a ‘state of mind’ requirement sufficient to avoid application of the default rule.”).

See Orin Kerr, A Confusing Proposal to Reform the “Mens Rea” of Federal Criminal Law (November 25, 2015),

available at https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/11/25/a-confusing-proposal-toreform-the-mens-rea-of-federal-criminal-law/; Senate Judiciary Hearing, supra note 39 (statement of Leslie Caldwell)

(“It also is unclear whether the ‘required by law’ language would codify existing judicial interpretations of federal

statutes, or invalidate those precedents entirely. Even if the ‘required by law’ phrasing would codify judicial

interpretations, it is not clear whether that would include decisions by the Supreme Court, appellate courts, or district

courts, or directives set forth in model jury instructions and endorsed by courts.”).

See Markup of H.R. 2830; H.R. 3713; H.R. 4002; H.R. 4003; H.R. 4001; H.R. 4023 Before the House Judiciary

Committee, 114th Cong. 53 (2015) (statement of Representative John Conyers) (“In cases where a reasonable person in

similar circumstances would not know or have reason to know that conduct is unlawful, the bill would further require

proof that the defendant knew or had reason to believe that their conduct was unlawful.”) available at

https://judiciary.house.gov/wp-content/uploads/2016/02/11.18.15-Markup-Transcript.pdf.

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Application of Legislation to Existing Offenses

To get a better sense of how the Mens Rea Reform Act and the Criminal Code Improvement

would function in practice, this section will apply the mens rea provisions in each bill to existing

offenses found in Federal Criminal Code, including both traditional and regulatory/public welfare

offenses.

Traditional Federal Crimes

18 U.S.C. § 1341 (Mail Fraud)

Section 1341, Title 18, United States Code, provides, in relevant part:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for

obtaining money or property by means of false or fraudulent pretenses ... for the purpose

of executing such scheme or artifice or attempting so to do, places in any post office ...

any matter or thing whatever to be sent or delivered by the Postal Service ... shall be fined

under this title or imprisoned not more than 20 years, or both. 48

The essential elements of a mail fraud violation are “(1) a scheme to defraud; (2) use of the mails

to execute the scheme; and (3) the specific intent to defraud.”49 As to the mens rea under §1341,

the federal circuit courts generally hold that the defendant must “knowingly” devise a scheme to

defraud and the scheme must have been devised “with the intent to defraud,”50 or as some courts

phrase it, with the “specific intent to defraud.”51 Neither the knowing nor specific intent

requirements can be located in the text of the statute, but appear to be imputed from an

understanding of the common law.52 The United States Court of Appeals for the Fifth Circuit has

noted that “government need not establish that the defendant used the mails himself or that he

actually intended that the mails be used. The government need only prove that the scheme

depended for its success in some way upon the information and documents which passed through

the mail.”53 Under this formulation, the defendant need have no knowledge or intent that the mail

would be used to further the fraud. Finally, the government must prove “materiality of the

falsehood.”54 The model jury instructions used for the materiality element require a mens rea of

knowing or reckless disregard:

18 U.S.C. §1341.

United States v. Floyd, 343 F.3d 363, 371 (5th Cir. 2003).

United States v. Price, 623 F.2d 587, 591 (9th Cir. 1980) (“Participation in furtherance of a fraudulent scheme does

not, by itself, justify a conviction unless the defendant’s knowledge of the fraudulent purpose can be shown.”); United

States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009) (“To prove a scheme to defraud, the Government must show

fraudulent activity and that the defendant had a conscious, knowing intent to defraud”); United States v. Gold

Unlimited, Inc., 177 F.3d 472, 478 (6th Cir. 1999); 2A FEDERAL JURY PRACT. & INSTR. §47.03 (6th ed.).

United States v. Akpan, 407 F.3d 360, 370 (5th Cir. 2005).

See Perlman v. Zell, 185 F.3d 850, 854 (9th Cir. 1999) (“The word ‘fraud’ in the mail-fraud statute means deliberate,

material misrepresentations. No fraud, no mail fraud.”) (internal citation omitted).

Akpan, 407 F.3d at 370.

Neder v. United States, 527 U.S. 1, 25 (1999). Citing to the Restatement (Second) of Torts, the Supreme Court has

defined “materiality” as follows:

(a) a reasonable man would attach importance to its existence or nonexistence in determining his

choice of action in the transaction in question; or

“(b) the maker of the representation knows or has reason to know that its recipient regards or is

likely to regard the matter as important in determining his choice of action, although a reasonable

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The term “false or fraudulent pretenses, representations, or promises” means a statement

or an assertion which concerns a material or important fact or a material or important

aspect of the matter in question and that was either known to be untrue at the time that it

was made or used, or that was made or used with reckless indifference as to whether it

was, in fact, true or false, and made or used with the intent to defraud. A material fact is a

fact that would be of importance to a reasonable person in making a decision about a

particular matter or transaction. 55

Applying S. 2298, it appears that a court could read Section 1341 as not “specifying” any mens

rea in the text.56 As such, subsection (b) of the mens rea framework in S. 2298 would appear to

apply, as it addresses instances where the text of the underlying criminal statute does not supply a

mens rea element. Accordingly, it appears that “willfully” would apply to each element.

Applying H.R. 4002 to Section 1341, it would appear that the default mens rea of “knowing”

would apply, and the court would have to determine to which elements it should apply, using

general rules of statutory construction and the Supreme Court’s case law on mens rea default

rules (e.g., the presumption that a mens rea element applies to all elements of the crime). Finally,

a court would have to determine whether “a reasonable person” should have known his acts were

unlawful.

18 U.S.C. § 1343 (Wire Fraud)

Section 1343, Title 18, United States Code, provides, in relevant part:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for

obtaining money or property by means of false or fraudulent pretenses, representations,

or promises, transmits or causes to be transmitted by means of wire, radio, or television

communication in interstate or foreign commerce, any writings, signs, signals, pictures,

or sounds for the purpose of executing such scheme or artifice, shall be fined under this

title or imprisoned not more than 20 years, or both.57

The elements of wire fraud are: (1) a scheme to defraud; (2) use of the wires in furtherance of the

scheme; and (3) the specific intent to defraud.58 Again, like the mail fraud statute, the wire fraud

statute requires “materiality of the falsehood.”59 As to the mens rea of Section 1343, the

defendant must knowingly devise or knowingly participate in the scheme or artifice to defraud

with the intent to defraud another.

The plain text of the bills suggests that they would, if enacted, result in identical analyses as the

mail fraud statute, save for the different jurisdictional hook (use of the wires instead of the mail).

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man would not so regard it.”

Id. at 22 n.5 (quoting RESTATEMENT (SECOND) OF TORTS §538)).

FEDERAL JURY PRACTICE, supra note 51, at §47.03.

One could argue that a court might treat the phrases “intending to devise a scheme or artifice to defraud” or “for the

purpose of executing such scheme ... places in any post office” as specifying a mens rea standard. In that case,

subsection (c) of the mens rea framework in S. 2298 would apply, and knowing would still apply to the element of

devising the scheme to defraud and the scheme would still have to be done with intent or specific intent to defraud.

However, these phrases do not appear to be used in the traditional mens rea sense of intending for a certain harm to

occur, but rather speak to the desire to engage in the fraudulent scheme in the first place.

18 U.S.C. §1343.

United States v. McNeil, 320 F.3d 1034, 1040 (9th Cir. 2003); United States v. Smith, 39 F.3d 119, 122 (6th Cir.

1994).

Neder v. United States, 527 U.S. 1, 25 (1999).

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18 U.S.C. § 1344 (Bank Fraud)

Section 1344, Title 18, United States Code, provides:

Whoever knowingly executes, or attempts to execute, a scheme or artifice—

(1) to defraud a financial institution; or

(2) to obtain any of the moneys, funds, credits, assets, securities, or other property

owned by, or under the custody or control of, a financial institution, by means of false or

fraudulent pretenses, representations, or promises;

shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. 60

Section 1344(1) requires the government to prove: “(1) the defendant knowingly executed or

attempted to execute a scheme or artifice to defraud a financial institution; (2) the defendant had

the intent to defraud a financial institution; and (3) the bank involved was federally insured.”61

Section 1344(2) requires the same proof as to the first and third elements, but as to the second, the

government need not prove that the defendant intended to defraud a bank, but only that a scheme

was devised and that it resulted in the defendant obtaining funds owned by or under the custody

or control of a financial institution.62

Applying S. 2298 to the bank fraud statute would appear to result in the following construction: it

appears subsection (c) of the bill’s mens rea framework would apply, as there is some mens rea in

the text—“knowingly” executing or attempting to execute a scheme or artifice—but it is not clear

from the text if the existing mens rea element was intended to apply to subsequent elements. If

the mens rea framework in S. 2298 were applied to the statute, it would appear that the

government would still have to prove that the defendant knowingly executed the scheme to

defraud. Although subsection (c) normally would require this knowing element apply to all the

following elements, subsection (d) of the mens rea framework in S. 2298 provides an exception to

this rule. Subsection (d)(1)(c)(iii) provides that subsection (c) should not apply if it would “lessen

the degree of mental culpability that the Government is required to prove with respect to that

element under ... precedent of the Supreme Court of the United States.”63 The Supreme Court has

observed that the defraud-a-financial-institution element in Section 1344(1) requires intent to

defraud the institution.64 Thus, this intent requirement would continue to apply to this second

element, as otherwise, subsection (c) would lower the required mens rea. As such, subsection (c)

of the bill would require intent to be proven for prosecutions under Section 1344(1). Applying

subsection (c) to the third element of Section 1344, it would appear that the defendant would have

to know that the bank was being federally insured. The definition of “knowing” in S. 2298

includes the defendant’s awareness of “attendant circumstances” and the bank’s status as federally

insured would arguably qualify was an attendant circumstance.65 Because Section 1344(2) does

not currently require intent to obtain funds from a bank, and because the statute contains a mens

rea element, it would appear that knowing would apply to all elements in a prosecution under

Section 1344(2).

18 U.S.C. §1344.

See United States v. Flanders, 491 F.3d 1197, 1212 (10th Cir. 2007).

Id.

S. 2298, §2, 114th Cong. (2015).

Loughrin v. United States, 134 S. Ct. 2384, 2391 (2014).

S. 2298, §2.

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Because both Section 1344(1) and (2) both contain a mens rea element, as the “knowingly

executes” requirement in the prefatory clause applies to both subsections (1) and (2), the default

rules established by H.R. 4002 would be inapplicable, and the bill, if enacted, would appear to

have no bearing on a reviewing court’s construction of the underlying statute.

21 U.S.C. § 841(a) (Drug Trafficking)

Section 841(a), Title 21, United States Code, provides:

(a) Unlawful acts

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or

intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture,

distribute, or dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a

counterfeit substance.66

There are several offenses included within this language, including manufacturing, distributing

and dispensing a controlled substance and the possession of a controlled substance with the intent

to manufacture, distribute, or dispense the substance.

Manufacture, Distribute, or Dispense

To obtain a conviction for the manufacture, distribution, or dispensing of a controlled substance,

the government must prove that the defendant (1) knowingly or intentionally manufactured,

distributed, or dispensed a controlled substance, and (2) knew it was a controlled substance.67

Applying subsection (c) of the mens rea framework in S. 2298 would appear to result in the same

construction as is currently applied: knowingly or intentionally would apply “down the line” to

both the distribution element and the element requiring that the substance being distributed is a

controlled substance. Similarly, because Section 841(a) already contains a mens rea element, H.R.

4002 would not apply, and the current construction would stand.

Possession with Intent to Manufacture, Distribute, or Dispense

To prove a violation of possession with intent to distribute under Section 841(a), the government

must prove that the defendant (1) knowingly possessed a controlled substance; (2) knew that the

substance was a controlled substance; and (3) intended to distribute some or all of this controlled

substance.68

Applying S. 2298, because there is a mens rea element in Section 841(a), it would appear that

subsection (c) of the bill’s mens rea framework would apply. Thus, “knowing” would still attach

to the possession element and intent would still attach to the distribution element. Although there

are two mens rea elements in this statute—knowing and intent—it would appear that knowing

would still apply to the fact that the substance was a controlled substance, as knowing generally

applies to real world facts, as opposed to intent, which generally applies to a person’s purpose or

desire for a result to occur. These same elements would seem to apply to the sale, distribution, or

intent to distribute or dispense a counterfeit substance under Section 841(a)(2). Because Section

21 U.S.C. §841(a).

See United States v. Houston, 406 F.3d 1121,1123 (9th Cir. 2005); FEDERAL JURY PRACTICE, supra note 51, at §64.03.

United States v. Jaras, 86 F.3d 383, 386 (5th Cir. 1996) (possession with intent to distribute marijuana); United States

v. Innie, 7 F.3d 840, 844 (9th Cir. 1993) (possession with intent to distribute methamphetamine).

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841(a) contain a mens rea element, the default rules established by H.R. 4002 would be

inapplicable, and the bill, if enacted, would appear to have no bearing on a reviewing court’s

construction of the underlying statute.

21 U.S.C. § 844(a) (Simple possession)

Section 844(a), Title 21, United States Code, provides, in relevant part:

It shall be unlawful for any person knowingly or intentionally to possess a controlled

substance unless such substance was obtained directly, or pursuant to a valid prescription

or order, from a practitioner, while acting in the course of his professional practice, or

except as otherwise authorized by this subchapter or subchapter II of this chapter. 69

To prove a violation of Section 841(a), the government must prove “1) knowing, 2) possession, 3)

of a controlled substance.”70 Thus, to be found guilty under Section 844(a), an individual has to

knowingly possess a controlled substance, and must know that the substance he or she possesses

is a controlled substance.71

Applying subsection (c) of the mens rea framework in S. 2298, the same results would apply as

under current law: a “knowing” mens rea would apply to both the possession element and the fact

that the thing possessed was a controlled substance. Because Section 844(a) already contains a

mens rea element, H.R. 4002 would not apply, and the current construction would stand.

Regulatory Offenses

Regulatory or public welfare offenses are ones whose aim is to regulate private actors in an effort

to protect the health, safety, and welfare of the general public. Because there are numerous

regulatory offenses in the Code, this report applies the two default mens rea bills to selected

offenses found in the following categories of regulatory crimes: environmental, economic, and

consumer protection.

Clean Water Act

The enforcement section of the Clean Water Act, codified at 33 U.S.C. Section 1319(c), contains

several criminal offenses.72 These offenses are tiered based upon the mental state of the

defendant: a more severe penalty is imposed for those who commit a proscribed act “knowingly”

versus those who commit the prohibited act “negligently.”73 Under Section 1391(c)(2), any

person who “knowingly violates” various provisions of the Clean Water Act—for instance,

violating effluent limitations under Section 1311—is subject to “a fine of not less than $5,000 nor

more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or by

both.”74 The federal circuit courts have interpreted Section 1391(c)(2) to require that the

prosecution prove knowledge as to each element of the offense; however, the defendant need only

have knowledge of the facts constituting the offense, and need not know he was violating the

law.75 The reasoning supporting this conclusion differs among the circuits.76 Regardless of the

21 U.S.C. §844.

United States v. Steen, 55 F.3d 1022, 1031 (5th Cir. 1995).

United States v. Holloway, 774 F.2d 527 (6th Cir. 1984).

31 U.S.C. §1319.

Id. §1319(c)(1)-(2).

Id. §1319(c)(2).

See United States v. Hopkins, 53 F.3d 533, 538-39 (2d Cir. 1995); United States v. Sinskey, 119 F.2d 712, 715 (8th

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reasoning behind their conclusions, the courts have required knowledge as to each element of the

offense for criminal liability to attach under Section 1391(c)(2), but not knowledge of the

illegality of the conduct.

Applying S. 2298 to Section 1319(c)(2) would appear to result in the same result as current law.77

Because Section 1319 contains a mens rea element “knowing,” subsection (c) of S. 2298’s mens

rea framework would direct that it be applied to each element of the offense. Because Section

1319(c)(2) contains a mens rea element, the default rules established by H.R. 4002 would be

inapplicable, and the bill, if enacted, would appear to have no bearing on a reviewing court’s

construction of the underlying statute.

Under Section 1391(c)(1), any person who “negligently violates” various enumerated provisions

of the Clean Water Act is subject to “a fine of not less than $2,500 nor more than $25,000 per day

of violation, or by imprisonment for not more than one year, or by both.”78 Applying subsection

would be required to prove negligence as to each element. Because Section 1319(c)(1) contains a

mens rea element, the default rules established by H.R. 4002 would appear to be inapplicable, and

the bill, if enacted, would appear to have no bearing on a reviewing court’s construction of the

underlying statute.

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Cir. 1997); United States v. Weitzenhoff, 35 F.3d 1275, 1286 (9th Cir. 1993).

In construing 33 U.S.C. §1319(c), the United States Court of Appeals for the Second Circuit relied on what it called a

“presumption of awareness of regulation” based upon the Supreme Court’s interpretation of similar “knowingly

violates” language in United States v. International Minerals & Chemical Corp. Hopkins, 53 F.3d at 538; United States

v. International Minerals & Chemical Corp., 402 U.S. 558, 563 (1971). Relying on prior cases interpreting public

welfare offenses, the Supreme Court in International Minerals reasoned that where “dangerous or deleterious devices

or products or obnoxious waste 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.”

International Minerals, 402 U.S. at 565. Because the Clean Water Act regulates similar subject matter concerning

public health and safety and employed analogous “knowingly violates” language, the Second Circuit concluded that

“the government was required to prove that [the defendant] knew the nature of his acts and performed them

intentionally, but was not required to prove that he knew that those acts violated the CWA.” Hopkins, 53 F.3d at 541.

The United States Court of Appeals for the Eighth Circuit, on the other hand, seemed less focused on the nature of the

conduct regulated (obnoxious waste materials), and more on how the statute was constructed: “In construing other

statutes with similar language and structure, that is, statutes in which one provision punishes the ‘knowing violation’ of

another provision that defines the illegal conduct, we have repeatedly held that the word “knowingly” modifies the acts

constituting the underlying conduct. United States v. Sinskey, 119 F.3d 712, 715 (8th Cir. 1997) (emphasis added).

An argument could be made that, in some instances, the mens rea framework in S. 2298 would not apply to specific

violations of the various existing offenses assessed in this report. The term “covered offense” in the bill expressly does

not include “any offense that involves conduct which a reasonable person would know inherently poses an imminent

and substantial danger to life or limb.” S. 2298, §2, 114th Cong. (2015). It is not clear whether the focus should be on

offense as written in law, or on the specific, factual commission of the crime. The text suggests the former for at least

two reasons. First, all of the other subsections delineating excluded offenses are written with reference to statutes and

not the commission of those offenses. Second, the exclusion in question uses the term “inherently poses an imminent

and substantial danger,” suggesting the crime itself in the abstract would in and of itself pose a risk of danger to others.

That being said, the text does not make clear at which level of abstraction an “offense” should be assessed. If based on

the commission of the offense, the statutes assessed in this report could be committed in a way as to pose an imminent

and substantial risk to life or limb, and, thus, would fall outside of the statute.

Id. §1319(c)(2).

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Federal, Food, Drug, and Cosmetic Act

The enforcement section of the Federal Food, Drug, and Cosmetic Act (FDCA), codified at 21

U.S.C. Section 333, contains several criminal offenses.79 Seemingly the most litigated criminal

provision of the FDCA is Section 333(a), which provides:

(a) Violation of section 331 of this title; second violation; intent to defraud or mislead

(1) Any person who violates a provision of section 331 of this title shall be

imprisoned for not more than one year or fined not more than $1,000, or both.

(2) Notwithstanding the provisions of paragraph (1) of this section, if any person

commits such a violation after a conviction of him under this section has become

final, or commits such a violation with the intent to defraud or mislead, such person

shall be imprisoned for not more than three years or fined not more than $10,000, or

both.80

With Section 333(a)(1), Congress created a misdemeanor criminal offense for, among other

things, the “introduction or delivery for introduction into interstate commerce of any food, drug,

device, tobacco product, or cosmetic that is adulterated or misbranded.”81 In doing so, Congress

dispensed with a mens rea requirement, creating a strict liability offense in which a culpable state

of mind is irrelevant. In a significant public welfare offense case, the Supreme Court long-ago

upheld this criminal provision in United States v. Dotterweich.82 There, the Court observed that

imposition of criminal penalties under the FDCA is permissible even without “consciousness of

wrongdoing” on the part of the defendant.83 “In the interest of the larger good,” the Court noted,

the FDCA “puts the burden of acting at hazard upon a person otherwise innocent but standing in

responsible relation to a public danger.”84 Thirty years later, the Court reaffirmed its Dotterweich

ruling in United States v. Park, holding that a defendant could be found liable so long as he had,

“by reason of his position in [a] corporation, responsibility and authority either to prevent in the

first instance, or promptly to correct, the violation complained of, and that he failed to do so.”85

Thus, to prove a violation of Section 333(a)(1), the government must prove: (1) the defendant

held a position of responsibility in the company; (2) the company introduced into interstate

commerce or delivered for introduction into interstate commerce the named product; and (3) the

product was adulterated or misbranded at the time of its introduction or delivery for

introduction.86 Prosecutions under Section 333(a)(2), on the other hand, which carry with it a

potential three-year term of imprisonment, require the government to prove the three foregoing

elements and also that the defendant had the “intent to defraud or mislead.”87

Applying S. 2298 to Section 333(a)(1), it appears that the government would be required to prove

that the defendant “willfully” violated the statute. First, none of the exceptions in subsection (d)

of the mens rea framework of S. 2298 appear to apply. Second, there is no existing mens rea

21 U.S.C. §333.

Id. §333(a).

Id. §331(a).

United States v. Dotterweich, 320 U.S. 277 (1943).

Id. at 284.

Id. at 281.

United States v. Park, 421 U.S. 658, 673-74 (1975).

FEDERAL JURY PRACTICE, supra note 51, at §63:03.

See 21 U.S.C. §333(a)(2); United States v. Beech-Nut Nutrition, 871 F.2d 1181, 1195 (2d Cir. 1989); see generally

Eileen Kennelly & Rebecca Shapiro, Federal Food and Drug Act Violations, 36 AM. CRIM. L. REV. 693 (1999).

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element in the underlying offense precluding application of subsection (c). Finally, under

subsection (b), “willfully” would apply to each element of the offense since the statute does not

specify the requisite mens rea. It should be noted that “willfully,” as defined in S. 2298, means

that the defendant “acted with knowledge that the person’s conduct was unlawful.”88 The first and

third elements of the underlying offense (being an employee of the company and the fact the

product was adulterated or misbranded, respectively) do not appear to be unlawful in and of

themselves without the introduction of the product into the stream of interstate commerce. Thus,

it is not clear how “willfully” should be applied to these elements. A court could conclude that the

willful element applies only to the act of introducing the product into interstate commerce as it

would seem that a “contrary intent plainly appears.”89 Applying S. 2298 to Section 333(a)(2), it

appears that subsection (c) of the mens rea framework would require that the “intent to defraud or

mislead” element apply to each element of the offense. Like Section 331(a)(1), and for the same

reasons, it is uncertain how this mens rea element should apply to the first and third elements of

the offense.

Applying H.R. 4002 to Section 331(a)(1), because the text does not contain a mens rea element,

the default mens rea “knowing” would apply, and a reviewing court would have to examine how

this default mens rea requirement applies to the three elements comprising the offense described

in Section 331(a)(1). Additionally, under H.R. 4002, the court would have to assess whether a

reasonable person would know or have reason to know that there conduct was unlawful, and if so,

the government would have to prove the defendant knew or had reason to know that his conduct

was unlawful.

National Firearms Act

The National Firearms Act imposes a registration requirement for “firearms,” which are defined

in the statute to include, among other things, “short-barreled” shotguns, machineguns, certain

silencers, and certain destructive devices.90 Under the act, all qualifying firearms must be

registered in the National Firearms Registration and Transfer Record maintained by the Secretary

of the Treasury. Failure to register such a firearm is a criminal offense punishable by a fine not

more than $10,000, 10 years imprisonment, or both.91

In United States v. Staples, the Supreme Court addressed whether the act required proof that the

defendant “knew the characteristics of his weapon that made it a ‘firearm’ under the Act [.]”92In

its analysis, the Court noted that the statute was silent concerning the mens rea required for a

violation, but that “silence on this point by itself does not necessarily suggest that Congress

intended to dispense with a conventional mens rea element.”93 The government argued that like

United States v. Freed, in which the Court held that mens rea requirement was not applicable to

prosecution for possession of a hand grenade under the act, machineguns are “highly dangerous

devices that should alert their owners to the probability of regulation.”94 The Court rejected this

argument noting that there is a long history of lawful possession of firearms in the United States.

S. 2298, 114th Cong., 1st Sess. (2015).

Id.

26 U.S.C. §§5841 (registration requirements), 5845(a)(6) (definition of “firearm”).

26 U.S.C. §§5861(d) (criminal offense); 5871 (penalty).

Staples, 511 U.S. at 602.

Id. at 605.

Id. at 610.

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Ultimately, the Court held that the government must prove that the defendant knew of the

characteristics of the weapon that brought it under the act.95

Applying S. 2298 to this provision to this act, it appears that the mens rea requirement would be

elevated to the “willfully” standard. First, none of the exceptions in subsection (d) of the bill’s

mens rea framework would apply. Second, subsection (c) would not seem to apply as the statute

does not contain an existing mens rea standard. Instead, subsection (b) would seem to require that

“willfully” would apply to each element of the offense, such that the defendant knew that their

possession of the unregistered firearm was unlawful under the act, and not simply that he knew of

the characteristics of the gun.

Applying H.R. 4002, because the act does not contain a mens rea requirement, the default

knowing element would apply, and a reviewing court likely would have to determine to which

elements it should apply. Further, the court would have to assess whether a reasonable person

would know or have reason to know that there conduct was unlawful, and if so, the government

would have to prove the defendant knew or had reason to know that his conduct was unlawful

under the statute.

Sherman Act

Section 1 of the Sherman Act, codified at 15 U.S.C. Section 1, makes it illegal for any person to

make a contract or engage in a combination in restraint of trade or commerce.96 This statute

provides for criminal enforcement of a fine not exceeding $100,000,000 if the violator is a

corporation, or, if any other person violates the statute, $1,000,000, or by imprisonment not

exceeding 10 years, or both.97 Although the text of the offense does not contain an express mens

rea requirement, the Supreme Court read one into it in United States v. U.S. Gypsum Company.98

In that case, the Court rejected the government’s argument that Section 1 of the Sherman Act

should be construed as a strict liability offense, instead holding that “defendant’s state of mind or

intent is an element of a criminal antitrust offense which must be established by evidence and

inferences drawn therefrom and cannot be taken from the trier of fact through reliance on a legal

presumption of wrongful intent from proof of an effect on prices.”99 Looking to general common

law principles to decide which mens rea standard should apply, the Court held that the

government need only prove that the “defendant’s conduct was undertaken with knowledge of its

probable consequences” and need not show that the “disputed conduct was undertaken with the

‘conscious object’ of producing such effects.”100

Applying S. 2298 to Section 1 of the Sherman Act, it appears that the default mens rea of

“willfully” would apply. First, Section 1 of the Sherman Act does not contain an express mens rea

requirement, precluding application of subsection (c) of the mens rea framework of the bill.

Because there is no express mens rea in statute, a reviewing court would likely move on to

subsection (b) of the mens rea framework established by S. 2298 and apply the willfully standard

to each element. Thus, violators would have to have acted with knowledge that their conduct was

unlawful under the act.

Id. at 619.

15 U.S.C. §1.

Id.

United States v. U.S. Gypsum Co., 438 U.S. 422 (1978).

Id. at 435.

100

Id. at 444 n.21.

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Applying H.R. 4002 to Section 1 of the Sherman Act, it appears that the “knowing” element

would apply, as the text of Section 1 does not contain an express mens rea element. However, it

appears that a court would still need to assess which elements the default “knowing” mens rea

element would apply. Further, the court would have to assess whether a reasonable person would

know or have reason to know that his conduct was unlawful, and if so, the government would

have to prove the defendant knew or had reason to know that his conduct was unlawful under the

statute.

Section 2 of the Sherman Act, codified at 15 U.S.C. Section 2, makes it a felony to “monopolize,

or attempt to monopolize, or combine or conspire with any other person or persons, to

monopolize” interstate trade.101 The Supreme Court has construed Section 2 to require the

demonstration of two elements: “(1) the possession of monopoly power in the relevant market

and (2) the willful acquisition or maintenance of that power as distinguished from growth or

development as a consequence of a superior product, business acumen, or historic accident.”102

Under this interpretation, the government must prove that the defendant had the specific intent to

form a monopoly.103

Under S. 2298, it appears that the “willfully” mens rea requirement element would apply to each

element. Because there is no express mens rea element in the text of Section 2 of the Sherman

Act, subsection (c) of the bill’s mens rea framework would not apply. Applying subsection (b) of

the framework would result in willfully applying to both elements.

Under H.R. 4002, it appears that the “knowing” element would apply as the text of the Sherman

does not contain an express mens rea element, and a reviewing court would have to determine to

which elements within the underlying offense it should apply. Again, a court would have to assess

whether a reasonable person would know or have reason to know that there conduct was

unlawful.

Federal Mine Safety and Health Act (MSHA)

The criminal provisions of the Federal Mine Safety and Health Act (MSHA), codified at 30

U.S.C. Section 820, provide that “[a]ny operator who willfully violates a mandatory health or

safety standard, or knowingly violates or fails or refuses to comply with any order issued under

section 814 of this title and section 817 of this title” shall be subject to a fine of not more than

$250,000, or by imprisonment for not more than one year, or by both. Section 820(c) provides

that “any director, officer, or agent of such corporation who knowingly authorized, ordered, or

carried out such violation, failure, or refusal shall be subject to the same” criminal penalties as the

corporate operator under Section 820(d). According to DOJ, the government must prove three

elements to establish a violation under Section 820(d): “(1) the defendant is an operator of a coal

or other mine which is subject to the Act, (2) the defendant violated a mandatory health or safety

standard or an order of withdrawal at that mine, and (3) the violation was willful.”104

Applying subsection (c) of the mens rea framework in S. 2298 to Section 820(d), it appears that

the mens rea term “willfully” would apply to each element of the offense. The only apparent

101

15 U.S.C. §2.

Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 481 (1992) (quoting United States v. Grinnell

Corp., 384 U.S. 563, 570-71 (1966)).

103

See American Key Corp. v. Cole Nat. Corp., 762 F.2d 1569, 1579 n.8 (1985).

104

See DEP’T OF JUSTICE, U.S. ATTORNEYS’ MANUAL §2018, available at https://www.justice.gov/usam/criminalresource-manual-2018-msha-willful-violation-mandatory-health-or-safety-standard-or.

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change from current law would be the altered definition of “willfully.” Under the Sixth Circuit’s

definition of willful, which DOJ has called “the leading case on the intent requirement of this

statute,”105 the act must be “done knowingly and purposely by a coal mine operator who, having a

free will or choice, either intentionally disobeys the standard or recklessly disregards its

requirements.”106 However, S. 2298 would seem to require that the defendant act “with

knowledge that the person’s conduct was unlawful,” and does not permit a reckless disregard

instruction.

Applying H.R. 4002, the default mens rea of knowing would not appear to apply as the statute

already requires a willful mens rea element.

Occupational Safety and Health Act (OSHA)

The Occupational Safety and Health Act (OSHA) contains several criminal enforcement

provisions. Under 29 U.S.C. Section 666(e), “[a]ny employer who willfully violates any standard,

rule, or order promulgated pursuant tosection 655 of this title, or of any regulations prescribed

pursuant to this chapter, and that violation caused death to any employee, shall, upon conviction,

be punished by a fine of not more than $10,000 or by imprisonment for not more than six months,

or by both; except that if the conviction is for a violation committed after a first conviction of

such person, punishment shall be by a fine of not more than $20,000 or by imprisonment for not

more than one year, or by both.”107 Applying subsection (c) of S. 2298’s mens rea framework to

Section 666(e), it would appear that willfully would apply to each element of the offense. The

default mens rea contained in H.R. 4002 would seem not to apply to Section 666(e), as it already

contains a mens rea element.

Under 29 U.S.C. Section 666(f), it is unlawful for any person to give “advance notice of any

inspection to be conducted under this chapter, without authority from the Secretary or his

designees,” and a violator is subject to a fine of not more than $1,000 or by imprisonment for not

more than six months, or by both.

Applying S. 2298, it would appear that subsection (b) of the bill’s mens rea framework would

apply, as the statute does not contain an express mens rea element. Thus, the government would

have to prove that the defendant willfully violated the statute. Applying H.R. 4002, it appears that

the “knowing” element would apply as Section 666(f) does not contain an express mens rea

element. However, a court would still have to determine to which elements of Section 666(e) it

should apply. Further, the court would have to assess whether a reasonable person would know or

have reason to know that his conduct was unlawful, and if so, the government would have to

prove the defendant knew or had reason to know that his conduct was unlawful.

Under 29 U.S.C. Section 666(g), it is unlawful to “knowingly make[] any false statement,

representation, or certification in any application, record, report, plan, or other document filed or

required to be maintained pursuant to this chapter,” and the violator is subject to a fine of not

more than $10,000, or by imprisonment for not more than six months, or both.108 Applying

subsection (c) of S. 2298’s mens rea framework, it appears that that “knowing” element would

apply to each element of the crime. The default mens rea contained in H.R. 4002 would appear

not to apply to Section 666(e), as it already contains a mens rea element of “knowing.”

105

Id.

United States v. Consolidation Coal Co., 504 F.2d 1330, 1335 (6th Cir. 1974).

107

29 U.S.C. §666(e).

108

29 U.S.C. §666(g).

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Conclusion

The Mens Rea Reform Act of 2015 (S. 2298) and the Criminal Code Improvement of 2015 (H.R.

4002) would create a set of default mens rea rules that would apply to offenses across the United

States Code, largely supplanting mens rea presumptions employed by the courts. In some

instances, these bills would raise the mens rea standard currently required by law. For example,

applying S. 2298 to the mail and wire fraud statutes would appear to require that the government

prove that the defendant committed the act with the heightened mens rea of “willfully,” rather

than “intentionally and knowingly” as is currently required. Likewise, applying both bills to a

provision of the Federal Food, Drug, and Cosmetic Act that outlaws the introduction of

adulterated or misbranded food or drugs into interstate commerce would modify this crime from a

strict liability offense, in which the government need not prove any mens rea, to one in which the

government would have to prove either knowledge (H.R. 4002) or willfulness (S. 2298).

In some instances, application of the bills to the same statute would appear likely to create

diverging mens rea standards. For instance, applying S. 2298 to various provisions of the

Sherman Act would appear to require that the defendant have committed the offense willfully,

while H.R. 4002 would seem to require that the defendant have committed the act knowingly.

Conversely, the bills would arguably lower the mens rea standard necessary for a conviction

under some criminal statutes. For example, applying H.R. 4002 to the mail and wire fraud statute

would arguably lower the mens rea standard from knowingly and intentionally to simply

knowingly engaging in the proscribed conduct. In many instances, however, the resulting

construction would remain the same regardless of which bill’s mens rea framework was

employed. For instance, application of both bills to a provision of the Clean Air Act that prohibits

persons from “negligently violating” the act would result in the same conclusion: the government

would still have to prove that the offender negligently violated the statute.

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Congressional Research Service

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