PEOPLE v MAGNANT; PEOPLE v DAVIS
Docket Nos. 159371 and 159373
Michigan Supreme Court
July 30, 2021
Argued on application for leave to appeal January 6, 2021.
WELCH, J.
Syllabus
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions: Kathryn L. Loomis
PEOPLE v MAGNANT
PEOPLE v DAVIS
Docket Nos. 159371 and 159373. Argued on application for leave to appeal January 6, 2021. Decided July 30, 2021.
Gerald Magnant and John F. Davis were each charged with violating
In an opinion by Justice WELCH, joined by Chief Justice MCCORMACK and Justices BERNSTEIN and CLEMENT, the Supreme Court, in lieu of granting leave to appeal, held:
MCL 205.428(3) provides, in relevant part, that a person who possesses, acquires, transports, or offers for sale contrary to the TPTA 3,000 or more cigarettes is guilty of a felony, punishable by a fine of not more than $50,000 or imprisonment for not more than five years, or both.MCL 205.423(1) provides, in relevant part, that a person shall not purchase, possess, acquire for resale, or sell a tobacco product as a transporter in this state unless licensed to do so.MCL 205.422(y) defines “transporter” as a person importing or transporting into this state, or transporting in this state, a tobacco product obtained from a source located outside this state, or from any person not duly licensed under this act.MCL 205.422(y) also provides that a transporter does not include an interstate commerce carrier licensed by the Interstate Commerce Commission (the ICC) to carry commodities in interstate commerce or a licensee maintaining a warehouse or place of business outside of this state if the warehouse or place of business is licensed under this act. Furthermore,MCL 205.422(o) provides that a “person” is an individual, partnership, fiduciary, association, limited-liability company, corporation, or other legal entity. Therefore, an individual is a transporter if the individual is engaged in conduct described inMCL 205.422(y) . The TPTA thus provides clear notice of when an individual, including a nonsupervisory employee, holds the status of “transporter” and, consequently, when the individual is subject to the licensing requirement ofMCL 205.423(1) . Accordingly, the Court of Appeals did not err by holding thatMCL 205.428(3) applies to nonsupervisory employees and that the statute is not unconstitutionally vague. However, the Court of Appeals erred to the extent it held that an individual must have a personal transporter license any time the individual transports large quantities of tobacco. Under the plain language ofMCL 205.422(y) , an individual qualifies as a “transporter“—and thus is subject to the transporter licensing requirement ofMCL 205.423(1) —only if the individual is transporting tobacco from “a source located outside this state” or “from any person not duly licensed under this act” and the individual is not an ICC licensee or an out-of-state licensee under the TPTA. It is not the quantity of tobacco transported but the source of the tobacco that confers “transporter” status and the transporter licensing requirement. Therefore, under the plain language ofMCL 205.422(y) , when an individual employee‘s source of tobacco is a duly licensed employer, the individual employee is not a “transporter” and does not need a personal transporter license.- There is a longstanding presumption, traceable to the common law, that unless otherwise stated in a statute, a Legislature intends to require a defendant to possess a culpable mental state regarding each of the statutory elements that criminalize otherwise innocent conduct. In this case, the Legislature did not intend
MCL 205.428(3) to impose strict liability. However, the text ofMCL 205.428(3) provides no express criminal-intent provision and, therefore, no express guidance as to what wrongful state of mind is required or which elements of the offense it must be directed toward. Rehaif v United States, 588 US ___; 139 S Ct 2191 (2019), provided the appropriate framework for resolution of this issue. Rehaif held that, under a statute prohibiting undocumented immigrants from possessing firearms, the defendant‘s immigration status was the crucial element separating innocent from wrongful conduct. Similarly, status is the crucial element separating innocent from wrongful conduct underMCL 205.428(3) as charged in this case. Because the prosecution had to show that a person charged with violatingMCL 205.428(3) knew the facts that made his or her conduct illegal, a violation ofMCL 205.428(3) requires, at a minimum, proof that the actor knew facts that conferred a status that subjected him or her to the regulatory requirements of the TPTA. Because defendants were charged with acting as “transporters” and because there was no allegation that they fell into any other category of “person” under the TPTA,MCL 205.428(3) required the prosecution to show that defendants (1) knew they were transporting 3,000 or more cigarettes and (2) knew of facts that conferred “transporter” status or knew of the specific licensing requirement ofMCL 205.423(1) . UnderMCL 205.422(y) , an individual qualifies as a “transporter,” and thus is subject to the licensing requirement, only if the individual is transporting tobacco from “a source located outside this state” or “from any person not duly licensed under this act” and the individual is not a licensed ICC carrier or an out-of-state licensee under the TPTA. These are the facts that confer transporter status and, therefore, the facts that an individual must know to be liable for violatingMCL 205.428(3) . This holding does not require a showing that defendants were aware of the particular statutes that applied to their conduct or, specifically, that they were required to be licensed, although either would be sufficient to establish that defendants knew facts that made their conduct unlawful. Rather, this holding requires a minimal showing that defendants knew that they were transporting a tobacco product obtained from a source located outside this state or from a person not duly licensed under the TPTA. In this case, the district court bound defendants over but did not consider whether each defendant knew facts that, at a minimum, bestowed transporter status on them. A bindover decision is invalid unless it is supported by evidence as to each element of the charged offense. Therefore, Part II(A) of the Court of Appeals judgment was reversed, and defendants’ joint motion to quash the district court‘s bindover decision was granted.
Court of Appeals judgment affirmed to the extent it held that
Justice CAVANAGH, concurring in the result, agreed with the Court‘s decision to affirm in part and reverse in part the judgment of the Court of Appeals and quash the district court‘s bindover decision; however, because the parties agreed that the mens rea of “knowingly” applied to each element of the offense, she would have resolved the matter on that basis and held that a violation of
Justice ZAHRA, dissenting, disagreed with the Court‘s decision to reverse Part II(A) of the judgment of the Court of Appeals and quash the district court‘s bindover decision; he would have affirmed the Court of Appeals’ decision and remanded to the circuit court for further proceedings. The “contrary to [the TPTA]” language in
Justice VIVIANO, dissenting, agreed with the majority‘s construction of the elements of
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v GERALD MAGNANT, Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOHN FRANCIS DAVIS, Defendant-Appellant.
Nos. 159371, 159373
STATE OF MICHIGAN SUPREME COURT
FILED July 30, 2021
OPINION
BEFORE THE ENTIRE BENCH
This case involves the interpretation and application of the Tobacco Products Tax Act (the TPTA),
We hold that an individual employee is a “transporter,” who must be licensed to transport a regulated quantity of tobacco in Michigan, when (a) the tobacco is obtained from an out-of-state source or from a source not duly licensed under the TPTA, and (b) the individual is not licensed by the Interstate Commerce Commission (the ICC) or an out-of-state operator of a business or warehouse licensed under the TPTA.
We further hold that while an individual acting as a “transporter” need
I. FACTS AND PROCEDURAL HISTORY
Defendants Gerald Magnant and John Francis Davis were nonsupervisory employees of the Keweenaw Bay Indian Community (KBIC). The KBIC, a federally recognized Native American tribe, has previously challenged the state of Michigan‘s authority to tax tobacco products sold by the tribe to nontribal consumers. See Keweenaw Bay Indian Community v Rising, 477 F 3d 881 (CA 6, 2007). On December 11, 2015, the Michigan State Police pulled over a KBIC-owned pickup truck for speeding on US Highway 41. The traffic stop was captured on video. The driver, defendant Davis, consented to a search of the utility trailer attached to the truck, representing to the trooper that it contained “supplies” and “chips.” The trailer
Davis and Magnant were each charged with violating
The circuit court denied defendants’ motion to quash the bindover, ruling that the prosecution need only show that defendants knowingly transported 3,000 or more cigarettes and that defendants were not licensed, irrespective of their knowledge of the licensing requirement. The circuit court also denied defendants’ motion to dismiss, ruling that the language of the TPTA provided adequate notice that an “individual” can be a “transporter” subject to the licensing requirement.
The Court of Appeals consolidated defendants’ cases on appeal and affirmed in a split, unpublished opinion. The majority held that (1) because
Defendants each sought leave to appeal, and this Court ordered consolidated oral argument on the applications. People v Magnant, 505 Mich 1000 (2020). We directed the parties to address “(1) whether
II. STANDARD OF REVIEW
A district court‘s bindover decision must be supported by probable cause
III. STATUTORY TEXT
The Legislature enacted the TPTA “to provide for a tax upon the sale and distribution of tobacco products; to regulate and license manufacturers, wholesalers, secondary wholesalers, vending machine operators, unclassified acquirers, transportation companies, transporters, and retailers of tobacco products; . . . [and] to prescribe penalties and provide remedies for the violation of this act[.]” 1993 PA 327, title. The TPTA “is at its heart a revenue statute, designed to assure that tobacco taxes levied in support of Michigan schools are not evaded.” People v Nasir, 255 Mich App 38, 42; 662 NW2d 29 (2003). This Court‘s goal in interpreting a statute is to effectuate the Legislature‘s intent. Shami, 501 Mich at 253.
Defendants were charged with violating a criminal provision of the TPTA, which provides, in relevant part:
A person who possesses, acquires, transports, or offers for sale contrary to this act 3,000 or more cigarettes . . . is guilty of a felony, punishable by a fine of not more than $50,000.00 or imprisonment for not more than 5 years, or both. [
MCL 205.428(3) .]
The prosecution alleges that defendants acted “contrary to” the TPTA because they violated
“Transporter” means a person importing or transporting into this state, or transporting in this state, a tobacco product obtained from a source located outside this state, or from any person not duly licensed under this act.
Transporter does not include an interstate commerce carrier licensed by the [ICC] to carry commodities in interstate commerce, or a licensee maintaining a warehouse or place of business outside of this state if the warehouse or place of business is licensed under this act. [
MCL 205.422(y) .]
IV. APPLICATION TO INDIVIDUAL EMPLOYEES
Defendants argue that the “transporter” licensing requirement of
Under
The Court of Appeals dissent opined that the Legislature did not intend the definition of “transporter” to apply to low-level employees of a company transporting tobacco products. The dissent relied on People v Assy, 316 Mich App 302, 310-311; 891 NW2d 280 (2016), in which the Court of Appeals determined that the TPTA‘s definition of “retailer” was only intended to apply to “individuals with some degree of meaningful control over the operation.” Davis (RONAYNE KRAUSE, J., dissenting), unpub op at 4. However, the Assy panel‘s conclusion was predicated upon the unique definition of “retailer“—“a person other than a transportation company who operates a place of business for the purpose of making sales of a tobacco product at retail.”
Yet the Court of Appeals majority also held that an individual employee must have a personal transporter license any time she or he transports 3,000 or more cigarettes, even for a licensed employer. Davis, unpub op at 6 (“Thus, the statutory language of
We clarify that only the Court of Appeals majority‘s alternative holding is correct as to this issue. The majority erred to the extent it held that an individual must have a personal transporter license any time the individual “transport[s] large quantities of tobacco . . . .” Id. Under the plain language of
V. CRIMINAL INTENT
We next address the criminal intent that must be established to hold an individual liable under
A. THE PRESUMPTION OF A CRIMINAL-INTENT REQUIREMENT
To review,
A person who possesses, acquires, transports, or offers for sale contrary to this act 3,000 or more cigarettes . . . is
guilty of a felony, punishable by a fine of not more than $50,000.00 or imprisonment for not more than 5 years, or both.
We start with the “longstanding presumption, traceable to the common law,” that unless otherwise stated in a statute, a Legislature “intends to require a defendant to possess a culpable mental state regarding each of the statutory elements that criminalize otherwise innocent conduct.” Rehaif v United States, 588 US ___, ___; 139 S Ct 2191, 2195; 204 L Ed 2d 594 (2019) (quotation marks and citation omitted); People v Tombs, 472 Mich 446, 451; 697 NW2d 494 (2005) (holding that the presumption applies to acts of the Michigan Legislature). We agree with the parties that the Legislature did not intend
1. THE COURT OF APPEALS’ ANALYSIS
The Court of Appeals majority followed the path urged by the prosecution. See Davis, unpub op at 3-6. Applying the rule of Janes, 302 Mich App at 41, the Court of Appeals stated that ” ‘[c]riminal intent can be one of two types: the intent to do the illegal act alone (general criminal intent) or an act done with some intent beyond the doing of the act itself (specific criminal intent).’ ” Davis, unpub op at 3. The majority then looked to Nasir, 255 Mich App 38, to determine that
A person who manufactures, possesses, or uses a stamp or manufactures, possesses, or uses a counterfeit stamp or writing or device intended to replicate a stamp without authorization of the department . . . is guilty of a felony . . . .
The Nasir panel determined that the statute created a general-intent offense that required the prosecution to prove
(1) the defendant possessed or used (2) a counterfeit stamp, or a writing or device intended to replicate a stamp, (3) that the defendant possessed or used the counterfeit tax stamp, or a writing or device intended to replicate a stamp, with knowledge that the stamp, writing, or device was not an authentic tax stamp, and (4) that the defendant acted without authorization of the Michigan Department of Treasury. [Nasir, 255 Mich App at 46.]
The Nasir panel continued, “We do not believe that the Legislature intended that the offense contain a specific intent element, nor do we believe that a defendant need act with knowledge that the defendant
The Court of Appeals majority in the present case purported to apply the reasoning of Nasir to
“Indeed, this Court in Nasir explicitly rejected the proposition that the offense in
MCL 205.428(6) contained a specific intent element and concluded that the prosecutor did not have to prove that the defendant knew that he lacked the authorization of the Michigan Department of Treasury. Nasir, 255 Mich App at 46. Accordingly, defendant‘s suggestion below that Nasir should be read to require proof in this case that defendant knew he was required to have a license to transport tobacco products and that he specifically intended to violate the TPTA is utterly without any support from the holding in Nasir, in addition to lacking any basis in the language ofMCL 205.428(3) .” [Davis, unpub op at 5, quoting People v Shouman, unpublished per curiam opinion of the Court of Appeals, issued October 4, 2016 (Docket No. 330383), p 6.]
In short, the Court of Appeals majority relied on the distinction between general-intent and specific-intent offenses to determine that because
2. THE CRIMINAL-INTENT PRESUMPTION AND THE GENERAL-INTENT/SPECIFIC-INTENT DISTINCTION
We are mindful, however, of the United States Supreme Court‘s warning of the dangers posed by overreliance on the general-intent/specific-intent distinction. See United States v Bailey, 444 US 394, 403; 100 S Ct 624; 62 L Ed 2d 575 (1980) (“At common law, crimes generally were classified as requiring either ‘general intent’ or ‘specific intent.’ This venerable distinction, however, has been the source of a good deal of confusion.“). The problem is that “even time-honored common-law crimes consist of several elements, and complex statutorily defined crimes exhibit this characteristic to an even greater degree.” Id. at 405. The conclusion that a statute requires proof of “intent to do the illegal act alone (general criminal intent)” but not “some intent beyond the doing of the act itself (specific criminal intent),” Janes, 302 Mich App at 41, does not settle which elements of a complex offense are part of the “criminal act.” The Model Penal Code, § 2.02(4) presumes that, in the absence of an express legislative statement to the contrary, criminal intent must be established as to each material element of the offense. Bailey, 444 US at 406. However, Bailey instructs that mechanical application of that presumption, like mechanical application of the general-intent/specific-intent distinction, might override legislative intent. Id. at 406-407. No bright-line categorical rule can substitute for careful analysis of the statute‘s purpose and context. Id.
3. CRIMINAL INTENT AS KNOWLEDGE OF FACTS THAT MAKE CONDUCT ILLEGAL
Defendants are accused of committing an offense that consists of one simple voluntary act (transporting over 3,000 cigarettes), but that act has complicated attendant circumstances (a licensing requirement dependent on complex definitions of “transporter” and “person“). Under such a statute, an actor‘s intent to perform the voluntary act might not constitute
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.]
Cigarettes, like firearms, are commonplace and often possessed lawfully, unlike hand grenades and dangerous narcotics. For this reason, we follow Staples in distinguishing United States v Balint, 258 US 250; 42 S Ct 301; 66 L Ed 604 (1922) (holding that a defendant need not specifically know that opium and cocaine are strictly regulated to be liable for selling them), and United States v Freed, 401 US 601; 91 S Ct 1112; 28 L Ed 2d 356 (1971) (holding that a defendant need not know that unregistered hand grenades are unregistered to be liable for possessing them).3 Indeed, an individual may lawfully possess large quantities of cigarettes in
The Court of Appeals majority overlooked a crucial aspect of the Nasir decision regarding counterfeit stamps under the TPTA. Nasir did not hold that because
4. KNOWLEDGE-OF-THE-LAW REQUIREMENT
The requirement that an actor must “know the facts that make his conduct illegal” does not, as defendants argue in this case, mean that the actor must know the specific law that makes his conduct illegal. Defendants point to Liparota v United States, 471 US 419, 423; 105 S Ct 2084; 85 L Ed 2d 434 (1985), in which the United States Supreme Court interpreted the criminal-intent requirement of a federal prohibition against the acquisition, possession, or use of food stamps “in a manner not authorized by statute or regulations.” The government argued that the offense had no criminal-intent requirement. Id. The petitioner argued that the government had to prove that he knowingly acted in “a manner not authorized by statute or regulations.” Id. The Supreme Court held that the petitioner‘s construction—that the defendant must know he or she is violating the law—was “particularly appropriate where, as here, to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct.” Id. at 426 (emphasis added).
The Court reasoned that the lack of a knowledge-of-the-law requirement would make a criminal of a “food stamp recipient who, for example, used stamps to purchase food from a store that, unknown to him, charged higher than normal prices to food stamp program participants.” Id. The Court added, “Such a reading would also render criminal a nonrecipient of food stamps who ‘possessed’ stamps because he was mistakenly sent them through the mail due to administrative error, ‘altered’ them by tearing them up, and ‘transferred’ them by throwing them away.” Id. at 426-427.
Unlike the statute at issue in Liparota, the statute in this matter,
5. KNOWLEDGE-OF-STATUS REQUIREMENT
Given the presumption that a defendant must “know the facts that make his conduct illegal,” Staples, 511 US at 605, we cannot conclude that the Legislature intended
Instead, we think that Rehaif, 588 US ___; 139 S Ct 2191, provides the appropriate framework for this case. In Rehaif, the United States Supreme Court applied the criminal-intent presumption to the federal prohibition on the possession of firearms by undocumented immigrants. Id. at ___; 139 S Ct at 2194. The petitioner, who was attending a university on a nonimmigrant student visa, was expelled for poor grades and told that his immigration status would be terminated unless he enrolled in a different university or left the country. Id. at ___; 139 S Ct at 2194. Around that time, he used firearms at a shooting range and was arrested for possessing firearms as an undocumented immigrant. Id. at ___; 139 S Ct at 2194. The government argued that criminal intent could be established solely by the petitioner‘s knowledge that he possessed a firearm. Id. at ___; 139 S Ct at 2194-2195. The Supreme Court disagreed, reasoning that “the defendant‘s [immigration] status is the crucial element separating innocent from wrongful conduct.” Id. at ___; 139 S Ct at 2197 (quotation marks and citation omitted). Therefore, the Court held, the criminal-intent presumption required the government to “show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” Id. at ___; 139 S Ct at 2194.
The Court explained that a knowledge-of-status requirement is not a knowledge-of-the-law requirement:
This maxim [that “ignorance of the law is no excuse“], however, normally applies where a defendant has the requisite mental state in respect to the elements of the crime but claims to be unaware of the existence of a statute proscribing his conduct. In contrast, the maxim does not normally apply where a defendant has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct, thereby negating an element of the offense. [Id. at ___; 139 S Ct at 2198 (quotation marks and citations omitted; emphasis added).]
B. APPLICATION OF THE CRIMINAL-INTENT PRESUMPTION TO MCL 205.428(3)
In this case, each defendant is charged with being “[a] person who possesses, acquires, transports, or offers for sale contrary to this act 3,000 or more cigarettes . . . .”
Under
Our holding does not require a showing that defendants were aware of the particular statutes that applied to their conduct or, specifically, that they were required to be licensed, although either would be sufficient to establish that defendants knew facts that made their conduct unlawful. Rather, our holding requires a minimal showing that defendants knew that they were transporting a tobacco product obtained from a source located outside this state or from a person not duly licensed under the TPTA—facts that would alert a reasonable person to the “likelihood of strict regulation.” Staples, 511 US at 611. Our holding “depends upon a commonsense evaluation of . . . the expectations that individuals may legitimately have in dealing with the regulated items.” Id. at 619; see also X-Citement Video, 513 US at 73 (“[O]ne would reasonably expect to be free from regulation when trafficking in sexually explicit, though not obscene, materials involving
The dissenting justices opine that our construction of
VI. CONCLUSION
Under the TPTA, a “person” who transports 3,000 or more cigarettes without a transporter license required by
However, the district court did not consider whether each defendant in this case knew facts that, at a minimum, bestowed transporter status on them. A bindover decision is invalid unless it is supported by evidence as to each element of the charged offense. Shami, 501 Mich at 250-251. It is possible that defendants knew of their employer‘s avoidance of the state‘s tobacco regulations or that the cigarettes being transported were obtained from out of state or an unlicensed source, but no evidence of such knowledge was presented. Therefore, we reverse Part II(A) of the judgment of the Court of Appeals and grant defendants’ joint motion to quash the district court‘s bindover decision. We do not retain jurisdiction.
Elizabeth M. Welch
Bridget M. McCormack
Richard H. Bernstein
Elizabeth T. Clement
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v GERALD MAGNANT, Defendant-Appellant.
No. 159371
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOHN FRANCIS DAVIS, Defendant-Appellant.
No. 159373
STATE OF MICHIGAN SUPREME COURT
CAVANAGH, J. (concurring in the result).
I concur in the Court‘s decision to affirm in part and reverse in part the judgment of the Court of Appeals and quash the district court‘s bindover decision. However,
As a general rule, courts infer an element of criminal intent when a statute is silent. Rambin v Allstate Ins Co, 495 Mich 316, 327; 852 NW2d 34 (2014). This presumption applies to each element of a statutory crime. Id. Whether to infer an element of criminal intent in the absence of explicit legislative direction is not about overriding legislative intent but rather about deciphering it. The United States Supreme Court explained in Rehaif v United States, 588 US ___, ___; 139 S Ct 2191, 2195; 204 L Ed 2d 594 (2019):
In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” United States v. X-Citement Video, Inc., 513 U.S. 64, 72, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); see also Morissette v. United States, 342 U.S. 246, 256-258, 72 S.Ct. 240, 96 L.Ed. 288 (1952). We normally characterize this interpretive maxim as a presumption in favor of “scienter,” by which we mean a presumption that criminal statutes require the degree of knowledge sufficient to “mak[e] a person legally responsible for the consequences of his or her act or omission.” Black‘s Law Dictionary 1547 (10th ed. 2014).
The problem we face is what to make of
The statute is silent as to mens rea, but the parties—and all members of this Court—agree that the statute is not a strict-liability offense. That is, pursuant to the longstanding presumption discussed earlier, a scienter requirement is applied to each element of the offense. I agree with Justice ZAHRA that
- Possess, acquire, transport, or offer for sale cigarettes;
- Do so contrary to the TPTA; and
- The quantity of cigarettes in question is 3,000 or more.
The difficulty is how to apply the scienter presumption to the second element—that the transportation or possession of the cigarettes must be done “contrary to [the TPTA].”1
The prosecution argues that the language “contrary to [the TPTA]” is not an element at all but rather “incorporate[s] a regulatory scheme both in the statute itself and any rules the Department of Treasury enacts per statutory authority.” Justice ZAHRA disagrees with the prosecution
However the language “contrary to [the TPTA]” functions, there is no dispute that it is an element of the offense. An “element” of a crime is one of its “constituent part[s],” and “[b]y definition, each ‘element’ is necessary, and all ‘elements’ together are sufficient.” People v Bruce, 504 Mich 555, 564 n 3; 939 NW2d 188 (2019) (quotation marks and citation omitted). The prosecution does not argue that a defendant is guilty of violating
The TPTA also prohibits acquiring for sale a pack of cigarettes that does not have a stamp affixed,
This statute functions much like the statute at issue in Liparota v United States, 471 US 419; 105 S Ct 2084; 85 L Ed 2d 434 (1985). In Liparota, the federal statute governing food-stamp fraud provided that ” ‘whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by [the statute] or the regulations’ ” was subject to a fine and imprisonment. Id. at 420-421, quoting
“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.” [Liparota, 471 US at 425-426, quoting Morissette, 342 US at 250.]
Logically, that statute functioned in the same manner that
Reading this statute as a whole, the question is closer here than in Liparota, in large part because of the 3,000-cigarette minimum to trigger the felony provision.3 But the statute, like the statute in Liparota, also criminalizes the same range of conduct—any violation of the TPTA—with no minimum requirement for the number of cigarettes as a misdemeanor punishable by not more than one year of imprisonment.
Lastly, I am aware of the maxim that “ignorance of the law is no excuse.” That idea is difficult to apply when the Legislature incorporates by reference an entire regulatory scheme into a criminal statute without providing clarity as to how the mens rea of the offense should function. But that maxim is not absolute; ignorance of the law is not a defense except when the Legislature says it is. The Legislature has said so in terms of this statute, and this can be squared with my resolution of this case as it was in Rehaif:
This maxim, however, normally applies where a defendant has the requisite mental state in respect to the elements of the crime but claims to be “unaware of the existence of a statute proscribing his conduct.” 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.1(a), p 575 (1986). In contrast, the maxim does not normally apply where a defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense. Ibid.; see also Model Penal Code § 2.04, at 27 (a mistake of law is a defense if the mistake negates the “knowledge . . . required to establish a material element of the offense“). Much of the confusion surrounding the ignorance-of-the-law maxim stems from “the failure to distinguish [these] two quite different situations.” LaFave, Substantive Criminal Law § 5.1(d), at 585. [Rehaif, 588 US at ___; 139 S Ct at 2198.]
Accordingly, I concur in the majority‘s result.
Megan K. Cavanagh
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v GERALD MAGNANT, Defendant-Appellant.
No. 159371
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOHN FRANCIS DAVIS, Defendant-Appellant.
No. 159373
STATE OF MICHIGAN SUPREME COURT
ZAHRA, J. (dissenting).
I dissent from the Court‘s decision to reverse Part II(A) of the judgment of the Court of Appeals and quash the district court‘s bindover decision. Michigan State Police stopped defendants in a pickup truck towing a utility trailer found to contain 672,000 untaxed cigarettes.1 This conduct alone constitutes prima facie2 evidence that could sustain a jury verdict on
The TPTA is comprehensive and contains a subsection providing, in relevant part, that “[a] person who possesses, acquires, transports, or offers for sale contrary to [the TPTA] 3,000 or more cigarettes . . . is guilty of a felony, punishable by a fine of not more than $50,000.00 or imprisonment for not more than 5 years, or both.”3 The prosecution concedes that a person must “knowingly” violate this subsection. This “knowingly” requirement, pursuant to Rambin v Allstate Ins Co,4 applies to each element of a statutory crime.5 Under a Rambin framework,
- Possess or transport cigarettes;
- Do so contrary to the TPTA; and
- Possess or transport 3,000 or more cigarettes.
The parties disagree on the meaning of the second element, “contrary to [the TPTA].” The prosecution initially questions whether “contrary to [the TPTA]” is an actual element of the statutory crime. The prosecution maintains that this language is a statement placed within every subsection of
In my view, this “contrary to [the TPTA]” language has purpose. Given that language, in addition to proving the first and third express elements of
I view the “contrary to [the TPTA]” language in
- Possess or transport cigarettes;
- Without a license;
- In a quantity of 3,000 or more.
Like the majority, I, too, would not wade into the “dangers posed by overreliance on the general-intent/specific-intent distinction.” Rather, I would focus on the term “knowingly” itself. In Bryan v United States,8 the United States Supreme Court discussed this term at length and made clear that
the term “knowingly” does not necessarily have any reference to a culpable state of mind or to knowledge of the law. As Justice Jackson correctly observed, “the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law.” Thus, in United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), we held that the prosecution fulfills its burden of proving a knowing violation of the escape statute “if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission.” Id., at 408, 110 S.Ct., at 634. And in Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), we held that a charge that the defendant‘s possession of an unregistered machinegun was unlawful required proof “that he knew the weapon he possessed had the characteristics that brought it within the statutory definition of a machinegun.” Id., at 602, 114 S.Ct., at 1795. It was not, however, necessary to prove that the defendant knew that his possession was unlawful. See Rogers v. United States, 522 U.S. 252, 254–255, 118 S.Ct. 673, 674–676, 139 L.Ed.2d 686 (1998) (plurality opinion). Thus, unless the text of the statute dictates a different
result, the term “knowingly” merely requires proof of knowledge of the facts that constitute the offense.9
Both defendants argue that ”
In my view, defendants’ “argument seems to be that the jury can find that defendant[s] knowingly violated the [statute] only if it finds that [they] knew the meaning of the [statute] [they were] accused of violating.”13 Defendants’ interpretation runs afoul of the long-accepted jurisprudential meaning of “knowingly.” The only “fact” of which a person must be aware in regard to the second element of this statutory offense is whether
Moreover, my reading of the element does provide a significant defense for any defendant who does possess a validly obtained license by allowing them to maintain that they did not know that their license was invalid for any of a host of reasons. This is a compelling defense in a highly regulatory regime. However, as discussed later in this opinion, I do not believe that a defendant who has never possessed a valid license may present this defense.
Justice VIVIANO‘s dissent agrees that the majority properly states the second element of the offense, although he would not require the prosecution to establish that defendants were aware of this element. Yet, I do not find Justice VIVIANO‘s position on the elements of this offense much different than the majority‘s interpretation of
Justice VIVIANO seeks to distinguish his position from the majority by maintaining that the prosecution need not prove that a defendant intended to commit this element. And perhaps his contention in theory might lessen the majority‘s effective blockade to enforcing
But the majority accepts defendants’ invitation to reinvent
“[t]ransporter” means a person importing or transporting into this state, or transporting in this state, a tobacco
product obtained from a source located outside this state, or from any person not duly licensed under [the TPTA]. Transporter does not include an interstate commerce carrier licensed by the interstate commerce commission to carry commodities in interstate commerce, or a licensee maintaining a warehouse or place of business outside of this state if the warehouse or place of business is licensed under [the TPTA].15
This provision, however, in no way creates a status on its own, as the majority opinion suggests. By its plain terms, this provision describes conduct in which a person who has a transporter license may lawfully engage. Obviously, if a person acquires a transporter license, that person may act as a transporter and lawfully engage in the “importing or transporting into this state, or transporting in this state, a tobacco product obtained from a source located outside this state, or from any person not duly licensed under [the TPTA].” But a person who has never sought a transporter license does not spontaneously become a “transporter” by engaging in this described conduct, which, as previously explained, is unlawful without having first acquired a license. After all, a person does not become married merely by filing a joint tax return, just as a person does not become a lawyer, doctor, veterinarian, certified public accountant, etc., by conducting themselves as the like. Rather, those are persons criminally liable for engaging in the unauthorized practice of those licensed professions.
The flaw in the majority‘s “status” argument is also revealed by the very case on which the majority heavily relies to support its construction of the second element. In Rehaif v United States,16 the petitioner attended a university on a nonimmigrant student visa and was expelled for poor grades. Apparently, he was told that his immigration status would be terminated unless he enrolled in a different university or left the country. After his immigration status was terminated, the petitioner was arrested for possessing firearms as an undocumented immigrant. The key question was whether the prosecution was required to “show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”17 The Court concluded that the prosecution must show both knowledge of possession and knowledge of his relevant immigration status.18
But had the petitioner in that case never acquired any immigration status, the Court would have lacked any basis to construe “status [as] the ‘crucial element’ separating innocent from wrongful conduct,” because the petitioner could not have claimed any status that would render his conduct innocent.19 The same is true in this case. Had defendants actually acquired a transporter license, perhaps the majority‘s opinion could reasonably embrace an argument that they had “a mistaken impression concerning the legal effect of some collateral matter and that mistake results in [their] misunderstanding the full significance of [their] conduct, thereby negating an element of the offense.”20 But because defendants never sought or acquired a license, the majority‘s
Further, the majority improperly construes the phrase “contrary to” as requiring the prosecution to establish that defendants knew of “status” facts that would apparently prompt a person to be aware that a transporter license is required. Specifically, the majority requires that the prosecution prove beyond a reasonable doubt not only that the accused person knowingly possessed or transported over 3,000 cigarettes but also that this “person is aware that the cigarettes were obtained from an out-of-state source or from a source not duly licensed under the TPTA.” But these two so-called “status” facts are, in fact, provisions of law that the majority incorporates from the legal description of a “transporter” provided under the TPTA. The inescapable conclusion is that the majority requires that an accused person know the law and engage in conduct knowing it to be unlawful. In other words, the majority requires the prosecution to establish, in regard to the second element, a “willful” violation of
Moreover, how the prosecution can ever establish beyond a reasonable doubt that defendants were “aware that the cigarettes were obtained from an out-of-state source or from a source not duly licensed under the TPTA” is a mystery. The majority makes great efforts to dispel the notion that its holding is not inconsistent with the well-known maxim that “ignorance of the law is no excuse,” but the opinion only incentivizes another well-known idiom: “Ignorance is bliss.” Simply stated, someone who actually does intend to violate the TPTA would not admit to being “aware that the cigarettes were obtained from an out-of-state source or from a source not duly licensed under the TPTA.” And someone who is interested in complying with the TPTA would glean from the majority‘s opinion that they are better off not being aware of the origin of the untaxed cigarettes. As in this case, any person‘s ideal “status” to avoid criminal liability for smuggling cigarettes is to say, “I‘m just a worker.” The majority‘s opinion renders the TPTA not just confusing but also largely unenforceable. Accordingly, I would affirm the Court of Appeals’ decision and remand this case to the circuit court for further proceedings.
Brian K. Zahra
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v GERALD MAGNANT, Defendant-Appellant. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JOHN FRANCIS DAVIS, Defendant-Appellant.
No. 159371; No. 159373
SUPREME COURT OF THE STATE OF MICHIGAN
VIVIANO, J.
VIVIANO, J. (dissenting).
I agree with the majority‘s construction of the elements of
Defendants were charged with violating the Tobacco Products Tax Act (the TPTA),
A person who possesses, acquires, transports, or offers for sale contrary to this act 3,000 or more cigarettes . . . is guilty of a felony, punishable by a fine of
not more than $50,000.00 or imprisonment for not more than 5 years, or both. [ MCL 205.428(3) .]
Here, the prosecution alleged that defendants’ conduct was “contrary to this act” because they did not have a license, as required by
a person importing or transporting into this state, or transporting in this state, a tobacco product obtained from a source located outside this state, or from any person not duly licensed under this act. Transporter does not include an interstate commerce carrier licensed by the interstate commerce commission to carry commodities in interstate commerce, or a licensee maintaining a warehouse or place of business outside of this state if the warehouse or place of business is licensed under this act. [
MCL 205.422(y) .]
As the majority concludes, the definition of “transporter” must be an element of the offense as charged. If the definition is not met, then no license is required to transport cigarettes. And because that definition is limited to certain circumstances—specifically here, obtaining tobacco products from out-of-state sources or from individuals not licensed under the TPTA—it is possible a person might transport these products without needing a license. In the present case, for instance, if the cigarettes were obtained in Michigan from a duly licensed person, then a defendant transporting them would not be a “transporter” under
The dispositive issue is whether the statute and all its elements require a showing of criminal intent. “[T]o determine whether a statute imposes strict liability or requires proof of a guilty mind, the Court first searches for an explicit expression of intent in the statute itself.” People v Tombs, 472 Mich 446, 451; 697 NW2d 494 (2005), citing People v Quinn, 440 Mich 178, 185; 487 NW2d 194 (1992). The Legislature did not include an express mens rea element in the statute creating this offense.2 But “[s]tatutes that create strict liability
Various factors are considered in determining whether mens rea attaches to a statute. See Quinn, 440 Mich at 190 n 14. The one I find dispositive here is the severity of the punishment provided for by the statute. See, e.g., Staples v United States, 511 US 600, 618; 114 S Ct 1793; 128 L Ed 2d 608 (1994) (explaining that a severe punishment, in particular a felony, “is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement“).3 The gun offense in Staples was a felony punishable by up to 10 years in prison, which confirmed the Court‘s reading that the statute included a mens rea requirement. Id. at 616. The offense here is a felony punishable by a fine of not more than $50,000 or imprisonment for not more than 5 years, or both.
I cannot, however, follow the majority‘s next step and conclude that, because the offense is not one of strict liability, all its elements must contain an intent requirement. It is normally true that the “presumption in favor of a criminal intent or mens rea requirement applies to each element of a statutory crime.” Rambin v Allstate Ins Co, 495 Mich 316, 327-328; 852 NW2d 34 (2014), citing Tombs, 472 Mich at 454-455. The presumption, however, does not always control. Certain “statute[s] require[] a criminal mind for some but not all of [the] elements . . . .” Quinn, 440 Mich at 187. In such cases, the statute “is not one of strict liability.” Id. In Quinn, the Court interpreted
I would conclude that the presumption in favor of applying a mens rea requirement to each element has been overcome and that the Legislature did not intend to require knowledge of the attendant circumstances set forth in the definition of transporter, i.e., whether the tobacco is obtained from an out-of-state or unlicensed source.
The difference in this case is that transportation of cigarettes is an act that is ordinarily legal. A license is required only if certain attendant circumstances exist. In addition, our conclusion in Henderson was bolstered by an additional statute that placed on the defendant the burden of proving exceptions to the offense, such as having the appropriate license. Id. at 616-617, citing
Further, as the United States Supreme Court has explained, the surest indicator that criminal intent is required is when the statute codifies a common-law crime. In holding that a federal conversion statute silent on intent nonetheless required a showing of mens rea, the Court explained that “[c]ongressional 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.” Morissette v United States, 342 US 246, 262; 72 S Ct 240; 96 L Ed 288 (1952). The conversion offense fell into the former category, and the Court found no grounds to infer an instruction from Congress to eliminate intent from the crime. Id. at 273.
By contrast, regulatory tax statutes containing criminal offenses without any common-law antecedents have been found not to require mens rea. One such statute was at issue in United States v Balint, 258 US 250, 253; 42 S Ct 301; 66 L Ed 604 (1922). The Court noted that the emphasis of the narcotics act at issue was “in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic.” Id. at 254. Individuals dealing in those drugs were not, the Court held, required to know that the drugs were regulated. Id. “Doubtless considerations as to the opportunity of the seller to find out the fact and the difficulty of proof of knowledge contributed to this conclusion,” the Court concluded. Id.
I believe that the court‘s analysis in United States v Carlos-Colmenares, 253 F3d 276 (CA 7, 2001), which examined an element similar to the one at issue here, is instructive. In that case, “[t]he defendant pleaded guilty to the crime of having been found in the United States, without the express consent of the Attorney General to be here, after having been deported . . . .
“Regulatory” offenses are those that arise out of optional activities, such as having sex with very young women (who may be minors), or engaging in business activities that can cause great harm (such as the manufacture of foods or drugs)—or coming back to the United States after having been deported. The risk of violating a statute that regulates an optional activity can be eliminated simply by not engaging in the regulated activity. A person who has been deported from the United States can avoid any risk of violating
8 U.S.C. § 1326 just by not returning to the United States; he knows he is not welcome. If nevertheless he decides to return, he had better make sure he has the Attorney General‘s express consent. [Id. at 279-280.]
In this case, the lack of an intent requirement for the “transporter” element does not make
Moreover, the TPTA is primarily a “taxing act” like the one at issue in Balint. Here, as in Balint, the emphasis on the statute is the supervision of the regulated industry, and the criminal penalties are used as adjuncts to give the regulations teeth. The TPTA taxes and regulates tobacco products, and the Legislature created criminal penalties as a means of enforcement. In holding that the prosecution did not need to prove that the defendant knew that the drugs he sold were “narcotics” within the ambit of the statute, the Balint Court also noted that Congress doubtless gave consideration to “the opportunity of the seller to find out the fact and the difficulty of proof of knowledge . . . .” Balint, 258 US at 254. This rationale applies to the TPTA, too. People wishing to transport a large quantity of cigarettes or to engage in any other activity regulated by the TPTA have a similar opportunity to assess whether they meet the statutory definition of “transporter.”
Moreover, as the court in Carlos-Colmenares observed, “[t]he risk of violating a statute that regulates an optional activity can be eliminated simply by not engaging in the regulated activity.” Carlos-Colmenares, 253 F3d at 279. A person can avoid any risk of violating the TPTA by staying out of the tobacco business altogether. As the majority recognizes, “A reasonable person would expect to be subject to regulation when transporting 3,000 or more cigarettes across state lines or from an unlicensed source.” If a person decides to transport or sell a large quantity of cigarettes, he had better make sure he is familiar with the regulations.
The difficulty of proving that a defendant knew that the tobacco was obtained from an out-of-state or unlicensed source also supports my conclusion that proving knowledge is not required. See note 3 of this opinion (noting that under Staples, the difficulty of proof is a consideration in determining whether a crime imposes strict liability). Proving knowledge of these circumstances would be just as challenging as it was in Balint, which relied on this factor to find that the statute contained no mens rea requirement. It is the type of case in which “requiring the prosecutor to prove knowledge would frustrate the regulatory purposes of the statute.” Quinn, 440 Mich at 189. See also 1 LaFave,
In sum, while I agree with the majority that the definition of transporter is an element of the offense charged in this case, I would hold that
David F. Viviano
Notes
We are satisfied that the operative words of the statute as they pertain to this defendant are:
“* * * any person who shall carry a pistol * * * in any vehicle operated or occupied by him * * * shall be guilty of a felony.”
The language in the statute “without a license to so carry said pistol as provided by law” does not add an element to the crime, but simply acknowledges that a person may be authorized so to carry a pistol. This is of the essence of a license.
A license is the permission by competent authority to do an act which, without such permission, would be illegal. [Id.]
In his opinion dissenting from the Court‘s decision upholding the constitutionality of a statute authorizing punishment for the knowing violation of an Interstate Commerce regulation, Justice Jackson wrote: “It is further suggested that a defendant is protected against indefiniteness because conviction is authorized only for knowing violations. The argument seems to be that the jury can find that defendant knowingly violated the regulation only if it finds that it knew the meaning of the regulation he was accused of violating. With the exception of Screws v. United States, 325 U.S. 91[; 65 S Ct 1031; 89 L Ed 1495 (1945)], which rests on a very particularized basis, the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law. I do not suppose the Court intends to suggest that if petitioner knew nothing of the existence of such a regulation its ignorance would constitute a defense.” Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 345, 72 S.Ct. 329, 333, 96 L.Ed. 367 (1952) [(Jackson, J., dissenting)].