957 N.W.2d 414

Minn.

2021

STATE OF MINNESOTA, Respondent, vs. Michael James Schwartz, Jr., Appellant.

A19-0786

STATE OF MINNESOTA IN SUPREME COURT

April 7, 2021

Hudson, J.

Court of Appeals

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Melissa Manderschied, Bloomington City Attorney, Maureen S. O’Brien, Assistant City Attorney, Bloomington, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Christopher L. Mishek, Assistant Appellate Public Defender, Saint Paul, Minnesota, for appellant.

S Y L L A B U S

The crime of driving, operating, or being in physical control of a motor vehicle with “any amount of a controlled substance listed in Schedule I or II” in the driver’s body, under Minn. Stat. § 169A.20, subd. 1(7) (2020), does not require the State to prove that the driver knew or had reason to know that the controlled substance was in their body.

Affirmed.

O P I N I O N

HUDSON, Justice.

The question presented in this case is whether Minn. Stat. § 169A.20, subd. 1(7) (2020), requires the State to prove knowledge as an element of the crime. Appellant Michael James Schwartz, Jr., was charged with violating the statute, which makes it “a crime for any person to drive, operate, or be in physical control of any motor vehicle . . . when the person’s body contains any amount of a controlled substance listed in Schedule I or II, or its metabolite, other than marijuana or tetrahydrocannabinols.” Minn. Stat. § 169A.20, subd. 1(7). Schwartz entered a guilty plea and was convicted. On direct appeal, Schwartz argued that his guilty plea was invalid because his plea colloquy did not include an admission that he knew or had reason to know that a Schedule II controlled substance was in his body when he was operating the vehicle. The court of appeals determined that Minn. Stat. § 169A.20, subd. 1(7), is a strict liability offense that does not require the State to prove knowledge as an element of the crime. We agree with the court of appeals and, therefore, we affirm.

FACTS

The relevant facts are not in dispute. On October 15, 2016, Bloomington police responded to a citizen’s report of an unresponsive male sitting in a parked vehicle with the motor running. When the officers arrived, the reporting party explained that the driver, later identified as Appellant Michael James Schwartz, Jr., had awakened, left the vehicle, and was now standing nearby. When the officers made contact with Schwartz, they smelled an odor of alcohol and observed that he was having difficulty standing. Schwartz admitted to consuming alcohol and failed a series of field sobriety tests. The officers placed him under arrest for driving while impaired. The officers then discovered a glass pipe in Schwartz’s pocket and an open alcoholic beverage in his vehicle. Suspecting that Schwartz was also under the influence of a controlled substance, the officers obtained a search warrant for a blood sample. A test of the sample revealed the presence of amphetamine, a Schedule II controlled substance. See Minn. Stat. § 152.02, subd. 3(d)(1) (2020).

Schwartz was charged with operating a motor vehicle with a Schedule I or Schedule II controlled substance in his body, in violation of Minn. Stat. § 169A.20, subd. 1(7)

On direct appeal, Schwartz sought to withdraw his guilty plea under Minn. R. Crim. P. 15.05, subd. 1. Schwartz argued that his guilty plea was invalid because he never admitted that he knew or had reason to know that amphetamine was present in his body at the time he was operating the vehicle. The court of appeals affirmed his conviction. State v. Schwartz, 943 N.W.2d 411, 413 (Minn. App. 2020). Given the language of the statute, the Legislature’s inclusion of an affirmative defense, and the public-welfare nature of the offense, the court of appeals concluded that the Legislature demonstrated a clear intent to dispense with the mens rea requirement for this offense. Id. at 417. Thus, the court of appeals determined that Schwartz’s guilty plea was valid. Id. We granted Schwartz’s petition for review.

ANALYSIS

The validity of a guilty plea is a question of law that we review de novo. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). Although a defendant does not have an absolute right to withdraw a valid guilty plea, a court must allow a defendant to withdraw a guilty plea, even after sentencing, if “withdrawal is necessary to correct a manifest injustice.” State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007); Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice occurs when a district court accepts an invalid guilty plea. Theis, 742 N.W.2d at 646. A guilty plea that is not accurate, voluntary, or intelligent is considered invalid. Kaiser v. State, 641 N.W.2d. 900, 903 (Minn. 2002). “Accuracy requires that the plea be supported by a proper factual basis, that there must be sufficient facts on the record to support a conclusion that defendant’s conduct falls within the charge to which he desires to plead guilty.” State v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003) (citation omitted) (internal quotation marks omitted).

Schwartz argues that he should be allowed to withdraw his guilty plea because he did not admit to all the elements of the crime of driving with a Schedule I or II controlled substance in his body. Specifically, Schwartz contends that his guilty plea is not accurate because he never admitted that he knew or had reason to know that amphetamine was in his body at the time he was operating the vehicle.

Schwartz’s argument presents us with a question of statutory interpretation. The interpretation of a statute is a legal question that we review de novo. State v. Ndikum, 815 N.W.2d 816, 818 (Minn. 2012). The objective of statutory interpretation is to ascertain and effectuate legislative intent. Minn. Stat. § 645.16 (2020).

A.

Our analysis begins with the language of the statute, which provides that “[i]t is a crime for any person to drive, operate, or be in physical control of any motor vehicle . . . when the person’s body contains any amount of a controlled substance listed in Schedule I or II, or its metabolite, other than marijuana or tetrahydrocannabinols.” Minn. Stat. § 169A.20, subd. 1(7). As written, the statute contains no specific intent or knowledge requirement. See generally Minn. Stat. § 609.02, subd. 9(1) (2020) (“When criminal intent is an element of a crime . . . such intent is indicated by the term ‘intentionally,’ the phrase ‘with intent to,’ the phrase ‘with intent that,’ or some form of the verbs ‘know’ or ‘believe.’ “).¹ Nevertheless, Schwartz urges us to conclude that the statute requires the State to prove an element of knowledge—that is, a motor vehicle operator must know or have reason to know that a Schedule I or II substance was in their body while operating the vehicle to sustain a gross misdemeanor conviction under the statute.

In general, criminal offenses require both a volitional act and criminal intent, referred to as mens rea. See Wayne R. LaFave, Criminal Law, § 5.1, at 253 (5th ed. 2010). “Mens rea is the element of a crime that requires the defendant know the facts that make his conduct illegal.” Ndikum, 815 N.W.2d at 818 (citation omitted) (internal quotation marks omitted). If a criminal statute does not require the defendant to know the facts that make the conduct illegal, the crime is considered to be a strict liability offense. Id.

Strict liability criminal offenses are “generally disfavored.” In re Welfare of C.R.M., 611 N.W.2d 802, 805 (Minn. 2000). As we explained in C.R.M., “[t]he rulings of the United States Supreme Court and this court . . . highlight the long established principle of American criminal jurisprudence that in common law crimes and in felony level offenses mens rea is required.” Id. at 808. When examining a criminal statute that does not include an express mens rea requirement, we undertake a “careful and close examination of the statutory language” to determine whether the Legislature intended to create a strict liability offense. Id.; see also State v. Loge, 608 N.W.2d 152, 155 (Minn. 2000); Ndikum, 815 N.W.2d at 820. In doing so, we are “guided by the public policy that if criminal liability, particularly gross misdemeanor or felony liability, is to be imposed for conduct unaccompanied by fault, the legislative intent to do so should be clear.” State v. Neisen, 415 N.W.2d 326, 329 (Minn. 1987). Therefore, we must first look to the language of the statute to determine whether the Legislature intended to impose strict liability without proof of knowledge. C.R.M, 611 N.W.2d at 805.

To begin, it is significant that the Legislature included an express knowledge requirement for other offenses contained within the same statute. “When the Legislature uses limiting or modifying language in one part of a statute, but omits it in another, we regard that omission as intentional and will not add those same words of limitation or modification to parts of the statute where they were not used.” General Mills, Inc. v. Comm‘r of Revenue, 931 N.W.2d 791, 800 (Minn. 2019). Here, another section of the same statute makes it “a crime for any person to drive, operate, or be in physical control of any motor vehicle . . . when . . . (3) the person is under the influence of an intoxicating substance and the person knows or has reason to know that the substance has the capacity to cause impairment.” Minn. Stat. § 169A.20, subd. 1(3) (emphasis added). We interpret the use of the modifying language—“knows or has reason to know“— in subdivision 1(3) of the same statute as a deliberate choice by the Legislature. We interpret the omission of such language in subdivision 1(7) as equally intentional and decline to add the same words where the Legislature did not. See Johnson v. Cook County, 786 N.W.2d 291, 295 (Minn. 2010) (“We may not add words to a statute that the Legislature has not supplied.“).

This conclusion is supported by our decision in State v. Loge, where we held that the absence of a knowledge requirement in the open container statute was evidence of the Legislature’s intent to establish a strict liability offense. 608 N.W.2d at 157. In that case, we explained that the Legislature made distinctions between knowledge requirements among the various traffic-related statutes that “guide[d] our interpretation” of the open container statute. Id. We acknowledged the presence of knowledge requirements in other traffic statutes and concluded that “[i]f the legislature had intended [the open container statute] to have a knowledge requirement, it could have added the word ‘knowingly.’ ” Id. Here, the legislative intent to create a strict liability offense is even clearer than in Loge because the different knowledge requirements are contained within the same subdivision of the same statute. See Minn. Stat. § 169A.20, subd. 1(3) (making it a crime to operate a motor vehicle “under the influence of an intoxicating substance and the person knows or has reason to know that the substance has the capacity to cause impairment“).

Next, we consider the Legislature’s addition of an affirmative defense to the statute. Minnesota Statutes § 169A.46, subd. 2 (2020), provides that a driver charged under some provisions of section 169A.20 can raise the affirmative defense that the presence of a controlled substance in his or her body is due to, and taken in accordance with, a doctor’s prescription. Indeed, the court of appeals concluded that, by establishing an affirmative defense, the Legislature demonstrated “that the absence of any specified mens rea element in [the statute] was not an inadvertent omission.” Schwartz, 943 N.W.2d at 415. We agree with this conclusion. An affirmative defense is “[a] defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all the allegations in the complaint are true.” Affirmative Defense, Black’s Law Dictionary (11th ed. 2019). By providing an affirmative defense, the Legislature proactively addressed concerns about imposing strict criminal liability for any blameless conduct.

Based on the inclusion of an express knowledge requirement for other offenses in the same statute and the availability of an affirmative defense, we conclude that the Legislature intended to create a strict liability offense under Minn. Stat. § 169A.20, subd. 1(7).

B.

Our analysis, however, does not end there. “[T]he existence of a mens rea [requirement] is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” United States v. U.S. Gypsum Co., 438 U.S. 422, 436 (1978). For this reason, we have “interpret[ed] statutes as containing a mens rea requirement even when they do not expressly contain one.” Ndikum, 815 N.W.2d at 819; see id. (cataloguing decisions when we have read a mens rea, scienter, knowledge, or criminal intent requirement into a statute that is silent as to mens rea).

Thus, when interpreting a criminal statute that does not contain language indicating intent or knowledge, we must look beyond the language of the statute itself and determine whether imposing strict liability for the specific criminal offense at issue is consistent with our precedent and “long established principle[s] of American criminal jurisprudence.” C.R.M., 611 N.W.2d at 808 (explaining that we cannot rely solely on the omission of statutory language such as “knowledge,” “belief,” or “intent,” to supply a clear expression of legislative intent to create a strict liability offense); see also U.S. Gypsum Co., 438 U.S. at 438 (“Certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.“).

There are two categories of criminal offenses where strict liability is generally accepted: (1) public welfare offenses and (2) crimes when the circumstances make it reasonable to charge the defendant with knowledge of the facts that make the conduct illegal.² In this case, the court of appeals concluded that Minn. Stat. § 169A.20, subd. 1(7),

is a public welfare offense and therefore strict liability is appropriate. Schwartz, 943 N.W.2d at 416. We agree with this conclusion.

We have “recognized that in limited circumstances a legislature may dispense with mens rea through silence—in statutes creating ‘public welfare’ offenses.” Ndikum, 815 N.W.2d at 819. Public welfare statutes are regulatory in nature and govern “potentially harmful or injurious items, including dangerous or deleterious devices or products or obnoxious waste materials.” Ndikum, 815 N.W.2d at 819–20 (quoting Staples v. United States, 511 U.S 600, 607 1994). Unlike common law offenses, public welfare offenses do not involve positive aggression or action, but are based on “neglect where the law requires care, or inaction where it imposes a duty.” Morissette v. United States, 342 U.S. 246, 255 (1952). When determining whether a criminal statute governs a public welfare offense, courts have traditionally considered two factors: (1) whether the items regulated are so inherently dangerous that a defendant is reasonably on notice of the possibility of strict regulation; and (2) the severity of the criminal penalty imposed for violations of the statute. See Ndikum, 815 N.W.2d at 819–22; C.R.M., 611 N.W.2d at 809–10.

1.

First, we must consider whether the items regulated by the statute are so inherently dangerous that the defendant is on notice of the possibility of strict regulation. Ndikum, 815 N.W.2d at 820. For example, the United States Supreme Court has recognized that the sale of contaminated food, United States v. Park, 421 U.S. 658 (1975), the distribution of illegal narcotics, United States v. Balint, 258 U.S. 250 (1922), and the possession of unregistered hand grenades, United States v. Freed, 401 U.S. 601 (1971), are public welfare offenses. In addition, we have recognized that the possession of an open bottle of alcohol in a vehicle is a public welfare offense. Loge, 608 N.W.2d at 157.³

By contrast, there are also items that, although potentially dangerous, are not so inherently dangerous that the possessor is reasonably on notice of their strict regulation. For example, in Ndikum, we considered whether a statute prohibiting the possession of a pistol in public without a permit was a public welfare offense. 815 N.W.2d at 817. In that case, we concluded that the State was required to prove knowledge to sustain a gross misdemeanor conviction under the statute. Id. We explained that because one “may legally keep guns in their homes, transport guns to work, possess guns at work, hunt with guns, and keep guns in their vehicles,” the defendant could not be considered to be on notice that the possession of a gun without a permit was subject to strict regulation. Id. at 822.

Likewise, in C.R.M., we declined to interpret a statute that prohibited carrying a knife on schools grounds to be a strict liability public welfare offense. 611 N.W.2d at 810. In that case, we stated that “great care is taken to avoid interpreting statutes as eliminating mens rea where doing so criminalizes a broad range of what would otherwise be innocent conduct.” Id. at 809. Further, we stated that “knives as common household utensils are clearly not inherently dangerous, as they can be used for a myriad of completely benign purposes.” Id. at 810. Thus, we concluded that the State was required to prove that the defendant knew that he possessed a knife on school property. Id.

Here, Schwartz argues the nature of the conduct prohibited by the statute—that is, having any trace amount of a Schedule I or II controlled substance in one’s body while operating a motor vehicle—is not so inherently dangerous. We disagree. Unlike possessing a pistol in Ndikum or carrying a knife in C.R.M., ingesting a Schedule I or II substance and then operating a motor vehicle can be considered inherently dangerous due to the effect the substances can have on a driver’s ability to safely operate a vehicle. Moreover, using a Schedule I or II controlled substance without a valid prescription is plainly illegal under state and federal law. See Minn. Stat. § 152.025, subd 2 (2020); 21 U.S.C. § 844. Therefore, we are not presented with a statute that “criminalizes a broad range of what would otherwise be innocent conduct.” C.R.M., 611 N.W.2d at 809.

2.

Second, we consider the severity of the punishment imposed by the statute. Ndikum, 815 N.W.2d at 822. “Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea.” Id. (quoting Staples, 511 U.S. at 616). In Staples, the United States Supreme Court noted that public welfare offenses typically carry less severe criminal penalties, like fines and short jail sentences, which “logically complement[]” the absence of a mens rea requirement. Staples, 511 U.S. at 616; see C.R.M, 611 N.W.2d at 806–07. “In a system that generally requires a ‘vicious will’ to establish a crime,” courts have noted that “imposing severe punishments for offenses that require no mens rea would seem incongruous.” Staples, 511 U.S. at 617; see also Ndikum, 815 N.W.2d at 822. Accordingly, we are reluctant to apply strict liability for a criminal statute that imposes felony-level penalties. See Ndikum, 815 N.W.2d at 822 (“Felony-level punishment is incompatible with the theory of a public welfare offense.“); C.R.M., 611 N.W.2d at 810 (noting our “heightened concern” in dispensing with the mens rea requirement for felony-level crimes).

In the present case, the penalty for a conviction under Minn. Stat. § 169A.20, subd. 1(7), varies depending on a defendant’s criminal history and number of qualified driving incidents. See Minn. Stat. § 169A.20, subd. 3 (providing that a person who violates section 169A.20 may be sentenced as provided in Minn. Stat. §§ 169A.24–.27 (2020)). As a first offense, a violation of the statute can be charged as fourth-degree driving while impaired, a misdemeanor offense. Minn. Stat. § 169A.27. But, if preceded by three qualified driving incidents within 10 years or a similar traffic-related felony conviction, a violation of the statute can be charged as first-degree driving while impaired, a felony offense punishable by up to 7 years in prison. Minn. Stat. § 169A.24.

Schwartz urges us to adopt a new rule of law, namely that all criminal statutes that are silent as to mens rea will not be interpreted as imposing strict liability if they are punishable up to a felony. Because Minn. Stat. § 169A.20, subd. 1(7), can be punished as a felony if charged in the first-degree, Schwartz insists that we cannot construe the offense as one of strict liability.

We recognize that a defendant can be charged with a felony under the statute, but Schwartz pled guilty to second-degree driving while impaired, a gross misdemeanor offense. Minn. Stat. §§ 169A.25, subd. 2; 609.02, subd. 4 (2020). We have never gone so far as to say that all charged felonies require proof of a criminal mens rea. Rather, we have explicitly left open the possibility of imposing strict liability for gross misdemeanor and felony offenses so long as the legislative intent to do so is clear. Loge, 608 N.W.2d at 156 (“[I]f criminal liability, particularly gross misdemeanor or felony liability, is to be imposed for conduct unaccompanied by fault, the legislative intent to do so should be clear.” (emphasis added)). Schwartz’s per se rule would be a significant departure from our long-standing precedent and, based on the circumstances before us today, we are not convinced that such a drastic shift in the law is either necessary or appropriate.

Moreover, our reading of a knowledge requirement into the statute would effectively subvert the deliberative, policymaking role of the Legislature. Indeed, the Supreme Court has recognized Congress’s authority to balance competing interests when establishing a strict liability offense. See Balint, 258 U.S. at 254 (holding that the illegal sale of narcotics constituted a public welfare offense and that strict liability was appropriate). As the Supreme Court explained in that case:

[The statute’s] manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. 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.

Id. Here, the manifest purpose of Minn. Stat. § 169A.20, subd. 1(7), as evidenced by its language and surrounding provisions, is to penalize driving with any amount of the Schedule I or Schedule II controlled substance in one’s body regardless of knowledge. The Legislature weighed countless considerations, including the danger to the public, the inherent illegality of controlled substances, the difficulty of proving knowledge,⁴ and the statutory scheme for charging DWIs,⁵ when drafting the statute. The text of the statute is the ultimate embodiment of these balanced interests. And because “the legislature is

entitled to consider what it deems expedient and best suited to the prevention of crime and disorder,” we believe it best to defer to its policy judgment in establishing strict liability for this offense. Loge, 608 N.W.2d at 157 (citation omitted) (internal quotation marks omitted).

C.

Based on our analysis above, we conclude the State was not required to prove that Schwartz knew or had reason to know that his body contained a controlled substance while operating the motor vehicle in order to sustain a gross misdemeanor conviction under Minn. Stat. § 169A.20, subd. 1(7). We acknowledge that neither the United States Supreme Court nor our own court “has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not.” Staples, 511 U.S. at 619–20 (quotation omitted). And we have not attempted such a task today. Instead, consistent with our prior cases, we have conducted a careful and close examination of the statutory language in Minn. Stat. § 169A.20, subd. 1(7), and specifically considered the propriety of imposing strict liability given the public welfare nature of the charged offense.

Because we have determined that there is a clear legislative intent to dispense with a mens rea requirement and the statute governs a public welfare offense, we conclude that strict liability is appropriate. Accordingly, we reject Schwartz’s challenge to the validity of his guilty plea and affirm his conviction.

CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.

Notes

One scholar has argued that the Legislature “create[d] an interpretative default rule of strict liability” by including section 609.02, subdivision 9(1), in the Minnesota Criminal Code of 1963. See Ted Sampsell-Jones, Mens Rea in Minnesota and the Model Penal Code, 39 Wm. Mitchell L. Rev. 1457, 1465 (2013). Professor Sampsell-Jones observes that “subdivision 9 of section 609.02 appears to set a default rule of strict liability—that if a statute includes no mens rea term, then no mens rea requirement is intended.” Id. at 1469–70. But as he explains, “the rule is less than clear” and, as a result, courts have tended to “ignore the legislatively enacted default rule.” Id. at 1465, 1470.

The second category of strict liability criminal offenses—where it is reasonable to charge the defendant with knowledge of the facts that make the conduct illegal—occurs in the context of sexual conduct with children under the age of consent. See, e.g., (finding that Minnesota’s statutory rape offense, which was silent as to the mens rea requirement, did not require the State to prove a defendant’s knowledge of the victim’s age). Strict criminal liability may also be imposed in production-of-child-pornography cases when the defendant confronts the underage victim personally. See, e.g., (explaining that a defendant can reasonably be required to ascertain the age of a person the defendant meets in person).

The court of appeals has held that failing to produce proof of insurance, a misdemeanor crime, is also a public welfare offense. See , rev. denied (Minn. Mar. 19, 1998).

The Legislature is entitled to consider “the opportunity to discover and the difficulty of proof” when imposing strict liability for a criminal offense. See . As we noted in , “if knowledge was a necessary element of the open container offense, there would be a substantial, if not insurmountable, difficulty of proof.” Thus, we held that it was “reasonable to conclude that the legislature, weighing the significant danger to the public, decided that proof of knowledge . . . was not required” under the statute.

The same reasoning applies here. Requiring a prosecutor to prove that a driver knew that his or her body contained any amount of a Schedule I or II controlled substance would place a substantial burden on the State. It would mean that a violation of Minn. Stat. § 169A.20, subd. 1(7), could only be proven in situations where an officer witnesses a driver taking the controlled substance immediately before or while operating a vehicle. Schwartz contends that any increased difficulty for the State in prosecuting violations of the statute is negligible because the State can use circumstantial evidence to prove knowledge. Yet, it may be that the Legislature sought to alleviate the evidentiary burden on the State by dispensing with the mens rea requirement.

Under Minnesota law, a DWI cannot be charged as a felony unless the defendant has been previously convicted of separate substance-related offenses or previously committed qualified prior impaired driving incidents. See Minn. Stat. §§ 169A.24–.27. To be convicted of a felony for violating Minn. Stat. § 169A.20, subd. 1(7), a defendant would have to have: (1) committed “three or more qualified prior impaired driving incidents” within a 10-year time period; (2) have been previously convicted of felony first-degree driving while impaired; or (3) have previously been convicted of a felony for substance-related criminal vehicular homicide and injury. See Minn. Stat. § 169A.24, subd. 1(1)–(3). Thus, the Legislature may have been less concerned with dispensing with the mens rea requirement because felony liability under the statute is contingent on the defendant having been previously convicted of or committed the same illegal conduct. Cf. (recognizing that a “public welfare analysis ‘hardly seems apt’ for a felony” because imposing strict liability undermines “the usual presumption that a defendant must know the facts that make his conduct illegal“) (quoting ).