United States v. Bryan Burwell

America, Appellee UNITED STATES BURWELL,

Bryan also known Bush, Appellant.

No. 06-3070. Appeals, Court of

United States

District of Columbia Circuit.

Argued Jan. Aug.

Decided Becker, appointed by

Rоbert S. court, argued the cause and filed the briefs appellant. Kramer, Defender, Federal A.J. Public Taormina, M. and Rosanna Assistant Fed- Defender, eral Public were on the brief of the Federal Public Defender as amicus in support appellant. curiae Barry Paul F. Enzinna and J. Pollack curiae were on the brief of amicus Nation- thirty-year any person tory Defense Law- sentence for of Criminal al Association machinegun carries a while commit- appellant. who yers, Inc. in support violence, ting requires gov- a crime of Strand, At- Assistant U.S. C. Stratton ernment to that the defendant knew appellee. the cause for torney, argued weapon carrying capable he was of the briefs were Ronald C. him on With automatically. To this firing ques- resolve Jr., Attorney, Roy and W. Machen tion, our longstanding we reexamine one of Butler, III, P. and Ste- Daniel McLeese Harris, precedents, United States Brenowitz, Attor- Assistant U.S. phanie C. (D.C.Cir.1992), in light F.2d 257-59 of neys. intervening decisions of the Court. SENTELLE, Judge, Chief and Before:

HENDERSON, ROGERS, TATEL, I

GARLAND, BROWN, and GRIFFITH KAVANAUGH, Judges. Circuit appeal, This which focuses on a narrow law, question requires only of an abbrevi- by filed Opinion for the Court Circuit underlying ated version of the essential Judge BROWN. 2004, a gang facts. Between 2003 and of heists; robbers committed six armed bank by Concurring opinion Judge filed Chief Burwell, joined who the crew the middle SENTELLE. spree, of the crime participated two. by Concurring opinion filed Circuit joined up, Before Burwell Noureddine Judge HENDERSON. Chtaini, leader, the nominal along with Holmes, Miguel bought Morrow and Omar Dissenting opinion filed Circuit fully four Judge automatic AK-47S.1 crew ROGERS. weapons carried these in all their subse- filed Dissenting opinion Circuit robberies, occasion, quent bank and on one KAVANAUGH, Judge with whom Circuit “sprayed” pursuing police bullets a car. joins. Judge TATEL Following particular robbery, this Burwell BROWN, Judge: Circuit robbing said he wanted to start banks with the crew. He carried an AK-47 in both of Appellant Bryan part Burwell was of a participated, the robberies which he engaged crew of bank robbers a though there is no evidence he fired spree violent crime across the D.C. Metro weapons. employed decidedly area. The crew old- tactics, including bystand- jury A subduing grand school issued indictment AK-47s, by brandishing pistol whip- charging ers Burwell and his co-defendants victim, alia, with, ping spraying pursuing conspiracy inter RICO police car with After a lengthy robbery conspiracy. They bullets. armed bank jury appeal panel charged trial and an before a also Burwell with one count of Court, only single legal question robbery armed bank and one count of us- carrying during remains: whether a violent ing U.S.C. or firearm 924(c)(l)(B)(ii), imposes jury which a manda- crime. A returned verdicts as to all Although guns similarly, grip under-folding the four functioned wood in the front and an unique appearance. stock, (the each had a One strap to which Chtaini fastened a (the guns folding was chrome and had a stock "AK-strap”), spring-loaded and one had a “AK-chrome”), one had two handles and no (the bayonet "AK-bayonet”). under the barrel (the handles”), stock "AK-two one had a real July convicting defendants on furtherance of’ such crime. The mandato- conspiracy conspiracy ry skyrockets each of RICO sentence thirty years, addition, however, robbery. commit armed bank if the firearm involved was a 924(c)(l)(B)(ii). robbery it convicted Burwell of armed and machinegun. 18 U.S.C. using carrying machinegun in rela- A machinegun is defined as “a gun-capable firing is, tion to a violent crime. The district court automatically, that of firing Burwell to concurrent prison sentenced sеveral bullets with one pull on the trig- Harris, each for ger.” terms 135 months RICO con- 959 F.2d at 257. The court n spiracy robbery, upheld jury sentence, and armed bank verdict and find- conspiracy months for to commit ing armed that this Court’s decision in Harris robbery, bank and a consecutive term of dictated affirmance. using

360 months for carrying a ma- Harris, the Court concluded Con- chinegun during robbery. gress apply strict liability” “inten[ded] appeal, argued 924(c). On Burwell govern- to the machinegun provision §of presented ment insufficient evidence to 959 F.2d at 258. The began its support his conviction analysis under 18 by recognizing U.S.C. general pre- 924(e)(l)(B)(ii) § government because the sumption favor of a require- cases, failed to show he knew the AK-47 he ment criminal but reasoned that 924(c)(1) carried capable firing automatically. § already requires a defendant to All four weapons could function in both “intentionally” have used a firearm in com- fully crime, semiautomatic and automatic mitting predicate modes and to have through the use of a selector switch—a done “knowledge so with that objects ” weapon lever the side of the that slides used to facilitate the crime are ‘firearms.’ up Thus, and down to allow the user choose Id. at 258-59. the statute does re- safe, semi-automatic, fully between au- quire culpable “[deliberate conduct” as to trial, tomatic'modes. But at parties’ both “the essential elements of the crime ... experts agreed firearms weapons 'the before the issue of sentence enhancement markings indicating contained no clear for use of a machine arises.” Id. they put , could be into automatic firing statute, 259. The structure of the found; mode. The defense’s expert, William Court supported the inference that Welch, testified some letters “[t]here’s intended no additional mens rea here the selector that I can- [near switch] to apply machinegun identify they’re because probably writ- element. in a foreign language, they’re ten but only Burwell, by aided amici curiae National letters, not words.” Welch determined Association of Lawyers Criminal Defense the AK-47 could fire in automatic (“NACDL”) and the Federal Public De by mode noticing the selector switch (“FPD”), banc, fender sought rehearing en positions, had three which he “was kind of claiming Court’s decision-in looking ... anyway,” for disassem- — O’Brien, -, United States v. bling gun. 2169; (2010)— 176 L.Ed.2d 979 924(e)(1)(A) 924(c)(l)(B)(ii) provides § Section for a man- which held that is an ele datory offense, consecutive sentence of at least five ment of the rather than a sentenc years any person ing who uses or implicitly carries overruled Harris. factor— “during firearm and in relation contrary to” crime Burwell also claims decisions of crime, drug trafficking of violence or support or for other circuits abandonment of any person possesses who a firearm “in interpretation Harris. Harris’s prior contends, The Court has also overruled fundamentally- Id. 924(c) is, he “may posi- be a precedent cases where disagree on of law. We a matter

flawed as to coherence and consisten- tive detriment high burden counts, conclude all law, either because of inherent cy urges this any party who imposed on deci- created an unworkable confusion principle of stare from the depart Court to sion, poses the decision direct or because been satisfied. has not decisis important to the realization

obstacle other objectives embodied in laws.” II sitting en appeals A court of 924(c)(1)(B)(ii) cоntains claiming By may interpre its own banc also reexamine additional, require- implicit mens “if it that other tation of a statute finds a circuit ment, us to set aside Burwell asks argued a con persuasively circuits have interpre- governed our that has precedent Mass Ener trary construction.” Critical twenty years. tation for NRC, 975 F.2d gy Project of stare decisis is doctrine “[T]he (en banc). (D.C.Cir.1992) an en banc Or of to the rule importance of fundamental “if, may precedent set aside its own court Highways Dep’t v. Texas law.” Welch of decision, an earlier on reexamination of U.S. Transp., 488 & Pub. im panel’s holding on an decides (1987). “[A]ny L.Ed.2d 389 fundamentally question of law was portant ... demands from the doctrine departure flawed.” Id. Rumsey, justification.” Arizona v. special 104 S.Ct. Subsequent Supreme a. Effect of (1984). The borne burden L.Ed.2d Decisions Court of an estab urging the disavowal party a rely on the Su- Burwell and NACDL greater “where the precedent is lished Court’s recent decision preme point a of statu asked to overrule Court is O’Brien, posses- which held that States here, unlike in ... for tory construction machinegun a an element to “[was] sion of interpretation, context of constitutional the beyond a proved jury be to the reasonable alter Congress remains free to what ... doubt,” “sentencing factor” to be v. McLean have done.” Patterson we judge by preponderance proved 172-73, Union, Credit sentencing. at the evidence at 2363, 105 L.Ed.2d 132 NACDL, According the Harris 2172. justified departing from the tradi- Overturning statutory prece favor of tional very range narrow justified under dent is not an finding machinegun provision the circumstances, in which an such as cases crime” but rather “essential element of the law, the “intervening development Harris, a “sentence enhancement.” See growth judicial doc through either the machinegun If the 959 F.2d 258-59. by Congress,” action taken trine or further an element of the provision is essential position. in the necessitates a shift Court’s crime, they it must also be afforded argue, Precedents Id. at 109 S.Ct. 2363. require- of a mens rea an interven may also be abandoned where ment. weak development removed or ing “ha[s] however, clear, It far from from conceptual underpinnings ened the 924(c)(l)(B)(ii) as a “sen- decision, classification of or where the later law prior “conceptual one of the tencing factor” was the decision irreconcilable has rendered of Harris. Much like the underpinnings” competing legal policies.” doctrines or with First, Supreme Court’s recent decision in suggestion Burwell’s that the label offense,” Flores-Figueroa, (2009), “element of as opposed factor,” “sentencing is determinative of the Hams’s holding turned on the Court’s mens rea is misguided. Had interpretation “using the usual Court viewed distinction statutory analysis” in an attempt tools of dispositive, as it would not explicitly have congressional to determine intent. declined to decide “a whether Specifically, F.2d at 258. the Court fo- uses, carries, who possesses a firearm statute, ie. cused on structure must aware weapon’s characteris- separation between the elements of the tics” in O’Brien. 130 S.Ct. at At underlying machinegun pro- crime and the least, very the Court’s sug- reservation vision, judgment and its that Congress gests analysis there is more to the than a additional would not have simple equation. of showing beyond what Second, government mechanically must before respect applying presumption particularly a presumption predicate crime and the use of a fire- — sweeping as the one put forward here— See id. arm. Court also prudent it seems to revisit first principles. found other circuits’ conclusions that no developed pre- showing of additional mens rea was re- sumption in 'favor of mens rea for one quired “aggravating elements” of simi- particular reason: to avoid criminalizing See id. persuasive. Nothing lar statutes otherwise lawful conduct. One of the ear- on whether machinegun provi- turned adopt presumption liest cases to in favor sion was considered an- element of the of mens rea was United States v. U.S. Moreover, sentencing offense or a factor. Co., Gypsum 422, 2864, 438 U.S. 98 S.Ct. the Harris Court referred to machine- (1978), 57 L.Ed.2d 854 in which the Court as both gun provision an “element of the evaluated whether intent was an element offense,” 258, id. at and a “sentence en- aof criminal antitrust Relying offense. id. at hancement,” 259, making it clear States, primarily on Morissette v. United holding depend that its did not on which 72 S.Ct. 96 L.Ed. description accurately more characterized (1952), the Court noted prece- that its machinegun provision. It is thus un- “can fairly establishing, dents read as much, all, if clear how at the rationale of at least with regard having to crimes their Harris relies upon the Court’s apparent law, origin in interpreta- the common an 924(c)(l)(B)(ii) assumption was a tive presumption that mens rea is re- “sentence enhancement” rather than an quired.” 438 at 98 S.Ct. 2864. element the offense. liability The Court further noted that strict offenses, while “not unknown to the crimi- But Burwell makes an even broader invariably nal law” and not violative of the claim, arguing O’Brien’s holding im- Constitution, “generally are disfavored.” plicitly overruled Harris because offense 437-38, Id. at Up 98 S.Ct. 2864. to this of mens rea while require proof elements point, the appears support case Bur- sentencing may factors not. While Bur- position. well’s support well can marshal some for this argument expansive from dicta in decisions however, analysis, Further reveals Circuit, from the Court inferred require- reading close of these cases reveals that proscribed by ment because “the behavior argument his is overstated. Act is often difficult to dis- [Sherman] (1994),in which socially 130 L.Ed.2d 372 zone of S.Ct. gray

tinguish from § 2252 re- held that 18 U.S.C. economically justifiable acceptable performer that a quires knowledge 440-41, Id. at conduct.” business actually a minor. sexually explicit video government requiring 2864. Not that not Staples, the Court feared As a situation intent such prove criminal sweep proof of mens rea “would requiring simply criminal sanctions using risk ambit of the statute actors who within the a result practices,” “regulate business they dealing were even had no idea that at by Congress. Id. not intended material,” as a sexually explicit such words, other the Court In S.Ct. uninspected druggist who returns retail requirement because inferred a mens developed film to a customer. Id. roll of necessary to differenti- criminal intent was Indeed, the court clari- S.Ct. Act from otherwise violation of the ate a scope ex- fied the conduct. lawful business “Morissette, reinforced plaining principle the same applied The Court Staples, instructs implied v. when Staples United requirement ap- a scienter should favor of in 26 U.S.C. statutory elements that ply to each 5861(d), it “unlaw- provision that made criminalize otherwise innocent conduct.” pos- ... to receive or any person ful for added). (emphasis [federally] reg- which is not sess a firearm precedent Our own recent follows 600, 605, 114 istered.” Project logic. samе United States The Court 128 L.Ed.2d (“POGO”), Oversight Government require the statute did the Govern- held (D.C.Cir.2010), this Court F.3d 544 a con- mens rea because ment that “criminal adopted trary ruling would “criminalize a broad regulations contain a mens statutes apparently innocent conduct.” range of clearly inti- rea element unless otherwise closing, 1793. In Id. at language legislative mated in the histo- favorably section of cited a different Court X- ry.” Staples Id. at 549. Like in which we held that opinion, our Harris Video, however, in- also Citement POGO knowledge is in a weapon-specific that criminalized other- volved statute 5861(d), reasoning under prosecution case, wise lawful behavior—in this contri- to make that “if had intended public butions to officials. The Court gun wholly of owners who were outlaws of the application based its ignorant offending characteristics of criminalizing on a similar concern about subject weapons, their and to them Absent an otherwise innocent conduct. terms, spoken it would have lengthy prison parent’s monthly “a requirement, intent clearly that effect.” Id. at more gov- a child who works for the checks to Harris, 1793; see 959 F.2d at 261 S.Ct. violating construed as ernment could be (“We Congress, against that if believe 209(a): only distin- parent’s intent background widespread of lawful own- cover the rent guishes payments help un- ership, wished to criminalize the mere payments par- from to subsidize what the registered possession types of certain public-sector an regards ent as insufficient firearms[,] spoken ... it would have clear- Thus, salary.” at 550. this Court Id. effect.”). ly to that made clear the favor need to prompted application triggered concerns mens rea was Similar penalties imposing v. X- avoid substantial United States —in- Video, citi- Inc., cluding jail sentences—on innocent Citement U.S. they spect wholly no idea were commit- to a zens who had different category of ting a crime. offense. The “altar boy” hypo- dissent’s point. thetical is thus beside the The dis- animating pre The concerns rationale, sent claims that under our in favor of mens rea Moris sumption boy altar guilty would be of both larceny sette, Gypsum, Staples, U.S. X-Citement drug possession if he stole a collection Video, present are not simply and POGO that, him, bag unbeknownst to contained a 924(c)(l)(B)(ii) poses no here. Section stash of cocaine lining. sewn into the See altar, danger ensnaring boy “an [who so, But person id. this is not because a Harris, mistake,” an innocent made] who does know a bag drugs not contains government F.2d at because the must “knowingly” does not possess them. If the prove guilty is first defendant either boy steals the bag, knowing collection crime, drug trafficking or a violent cash, it contains requisite he has the intent must further in the defendant respect with to the theft offense and can firearm, tentionally used or carried or guilty larceny. therefore be found But intentionally firearm, possessed during if bag cocaine, also happens to contain or in furtherance of that offense. entirely knowledge without his or complici- thus no risk There is of unfairness because ty, knowledge he lacks the statutorily re- very the defendant “knows from the outset quired guilt of the controlled sub- planned that his course of conduct stances offense.2 Feola, wrongful.” United States 671, 685, 43 L.Ed.2d Nor is it punish unusual to individuals Even NACDL’s characteriza consequences for the unintended of their imposing liability” tion of Harris as “strict Perhaps acts. the most obvious unlawful inaccurate, government as the' is still example felony-murder is the rule. required to establish mens rea with re Dean v. United predicate to the spect crime and with re (2009), 173 L.Ed.2d 785 use, spect carrying, possession suggested the ma the firearm. chinegun provision felony and the murder say, Judge Kavanaugh analytically Moreover, This is rule are congruent. charges, similarly that “the fact that the courts have concluded structured person’ is a ‘bad things’ require showing who has done ‘bad statutes do not of mens justifies] dispensing ... the pre- example, rea. For inter sumption entirely. 841, § of 21 preted imposes mens rea” Dissent U.S.C. which J.). J., Tatel, (Kavanaugh, joined by ten-year at 544 penalty trafficking for .additional opinion Nor can our to types quantities drugs, be read mean that certain or of as not guilty respect requiring government prove defendant’s mind with to to the de type one of type offense would suffice to allow fendant how much or what knew of imposition liability drug of strict with re- selling. he was United States v. apt analogy might quired prove 2. A more be a defendant often be would extraordi- —as prosecuted who under Controlled Sub- narily impossible difficult if not defen- —"the Act, 841, distributing § stances 21 U.S.C. knowledge type drug dant’s of the at issue genuinely Even heroin. if the defendant be- See, Branham, e.g., in his offense.” 515 F.3d cocaine, lieved the substance would cases). (collecting at 1275-76 & n. 3 Yet the not render his conviction under acknowledges dissent never even the funda- 841(b)(l)(A)(i) (B)(i) § liability” or "strict inconsistency reasoning mental its between drug every offense. As circuit to consider this holdings. and these held, question government has re- is not 508 (D.C.Cir. (4th 1268, Brower, 274, Cir.2003);

Branham, 1276 336 F.3d 277 515 F.3d Villarce, 2008). 435, circuit to have ad- Every other United States v. 323 F.3d (6th Cir.2003). agreed. See id. question dressed the 439 Certain statutes in- cases). (collecting n. 3 volving juveniles, at 1275 age where the victim’s e.g. an element of the 18 U.S.C. offense— Moreover, when asked to infer § (criminalizing crossing criminal other requirements purpose engaging state lines for in sex statutes, nor our this Court sister neither 12); age under the with minor 18 solely on whether a have relied circuits (the Act) § (prohibiting U.S.C. 2423 Mann is an element of the particular provision juveniles transportation of across state Instead, sentencing factor. or a offense purpose prostitution); lines for the frequently have and others this Court § (criminalizing juve- U.S.C. use of a elements that certain offense do found offense)— drug nile to commit or conceal a rea, so require proof of an additional require proof do not of mens rea with as a whole carries a long as the offense See, respect juvenile’s age. e.g., separates inno (cid:127)scienter Cox, United States v. 577 F.3d 836-38 If cent from criminal conduct. O’Brien (7th Cir.2009) (holding prosecution that a Harris, overturning it like require proof under the Mann Act does not ly require overturning of each of knowledge of the defendant’s of the vic- well, precedents these because there is age); Taylor, tim’s v. United States way distinguish them. For no obvious (9th Cir.2001) (same); F.3d 996-97 Act, Drug Free School Zones example, the Chin, v. United States 981 F.2d 1275 860, provides heightened pen § 21 U.S.C. (holding that a defendant (D.C.Cir.1992) 1,000 within drug alties for distribution juvenile’s need not know the age to be prosecution In a feet of a school. under 861); § violating convicted of 21 U.S.C. however, statute, government Williams, v. United States 922 F.2d prove knowledge need not the defendant’s (11th Cir.1991) (same).3 Finally, 738-39 proximity of his to a school. See United defining statutes offenses reference Holland, States v. 810 F.2d 1223-24 property the value of the or taken dam- (D.C.Cir.1987); see also United States v. § aged, (defining such as 18 (3d U.S.C. Jackson, Cir.2006); 443 F.3d robbery different bank offenses based on Dimas, United States 3 F.3d stolen) (7th Cir.1993). property the value of the Likewise, interpret when (providing U.S.C. different offense Act, 21 ing the Controlled Substances penalties levels and based on the value of require proof U.S.C. courts do not property damaged) require do not knowledge type of the defendant’s substance, government the defendant quantity despite each monetary being an knew the exact value. Absent element of offense. See Branham, 1275-76; also, either a clear statement from the Supreme 515 F.3d at see e.g., King, establishing States v. of mens F.3d (2d Cir.2003); every 152-53 rea United States element of an offense or a argument, poses, preventing 3. At oral Burwell claimed that stat- such as defendants from juveniles involving using juveniles utes are different from the to insulate themselves from See, machinegun provision prosecution. e.g., § here issue because 21 U.S.C. 861. In event, purpose of statutes like the Mann Act is to have to read a courts declined protect Although requirement the children involved. this mens rea into these statutes See, Cox, undoubtedly degree, e.g., true to some of based on their text. F.3d at some 836-37; might pur- Taylor, these statutes also have had other 239 F.3d at 996-97. Congress in our caselaw between intended to remove the in- clear demarcation sentencing elements and jury protections” our treatment of dictment and trial from factors, 924(c). say conceptual § we cannot machinegun provision have weak- underpinnings of Harris been 5.Ct. at 2178. The cited Court several all, much weakened so much factors, ened at less including danger immense “[t]he justify abandoning it. as to posed by machineguns the moral de- [and] pravity choosing weapon.” in Finally, that the machine- argument NACDL contends this sentence under- 924(c)(l)(B)(ii) § in must gun provision mines Harris’s statement that “there does carry implicit significant not seem to be a in difference it simply because the Court has construed mens rea between defendant who com- ignores the practical as an offense element drug using pistol mits a crime and one objective facts proving distinction between using who commits the same crime a ma- subjective mental states. The kind of Thus, gun.” chine 959 F.2d at 259. used, weapon type quantity like the NACDL claims the O’Brien Court held the fact, readily drug, physical susceptible is a varying penalties attached to the different proof beyond a reasonable doubt. As 924(c) § crimes enumerated “are such, fac- Congress could well intend such alia, pegged, inter to the defendant’s rela- to be offense elements without intend- tors blameworthiness, i.e., tive moral to differ- ing implicit, subjective to include an mens ing levels of scienter.” NACDL Br. at 10. sense, In requirement. this case Chin, is similar to in which we found that An argument that relies on one sentence government is not opinion of dicta from a Court knowledge of the victim’s the defendant’s tenuous, necessarily and this one is espe age prosecution in a under 21 U.S.C. cially attempt pluck so. Burwell’s § it “implausible because O’Brien, strip clause out of it all con placed prose- would have on the text, justification and use it as for over impossible prov- cution the often burden of turning precedent established is uncon doubt, ing, beyond a reasonable that a O’Brien, In vincing. question the critical youth defendant knew the he enticed was Congress’s was whether decision to amend eighteen.” under 981 F.2d at 1280. 924(c) § provide mandatory minimum quiver arguments their almost sentences4 should alter the Court’s char With empty, machinegun provision Burwell and NACDL claim that acterization of the sentencing cеrtain dicta O’Brien reveal the Court’s an element of the offense or a O’Brien, despite express its reservation of factor.5 130 S.Ct. at 2178. The belief— statement, context, question discussed above—that Court’s is one con 924(c)(l)(B)(ii) § implicit contains an sideration the evaluation of one of the O’Brien, In requirement. bearing the Su- five factors on the decision’s holdi such, preme explained likely ng.6 hardly that it is “not As rises to the Court level version, 924(c), previous provided mandatory leading the Court to 4. revisit the O'Brien, same issue in 130 S.Ct. at 2172. sentences. determining machinegun In whether Castillo, held provision §in constituted an element 924(c)(l)(B)(ii) uses the word "machine- factor, sentencing Castillo separate gun” to state an element of a offense. determining five examined factors directed 530 U.S. S.Ct. 2090 (1) congressional language intent: and struc- language subsequently amended the ture, tradition, unfairness, (2) (3) (4) risk of FPD development,” Finally, argues this Court im “intervening [legal] of an Patterson, at 109 S.Ct. plicitly overruled Harris in States fundamentally Brown, un- alone one that could let which noted that Harris had precedent. longstanding dermine been “somewhat undermined” the Su preme Court’s statement Castillo that Moreover, Supreme another recent the difference between carrying pistol strongly suggests that —con- opinion Court machinegun “great, degree is both penalties trary argument to Burwell’s —the (D.C.Cir. and kind.” 449 F.3d precisely §in are not calibrated to 2006) Castillo, (quoting at in Dean the level of mens rea. 2090). But reading Brown’s discharge provision concluded the accurately 924(c)(l)(A)(iii) Harris is more characterized as requires separate § no equivocal, proceeded as the Court to ac at 1856. In proof of intent. See 924(c) knowledge that reading Harris’s of the § noted that a holding, so the Court machinegun provision “might be reason discharges “is al- defendant whose firearm given “the hazard ready guilty weapon of unlawful conduct twice able” of the (which in all drug trafficking over: a violent or offense itself almost instances would defendant).” use, possession likely of a carrying, and the be obvious to the Questioning firearm in the course of that offense.” Id. at 158.7 continuing viabil Accordingly, fact that the ity precedent cry implic “[t]he 1855. of a is a far from ... discharge may it, where, actual of a itly overruling particularly inas Brown, mean that accidental does not the defen- precedent directly is not rele blameless,” sentencing dant is and the en- vant to the issue before the Court.8 924(c)(l)(A)(iii) §in properly hancement sum, we conclude that Burwell and his resulting “accounts for the of harm risk amici have failed to in establish from the manner in which the crime is tervening legal development has weak out, carried for which the defendant ened, removed, much less the conceptual sure, responsible.” Id. To be Dean is not Patterson, underpinnings of Harris. here, dispositive because Court found 173, 109 U.S. at 2363. discharge provision is a sentenc-

ing separate factor rather than a element b. Decisions of Other Circuits Still, of the offense. Id. at 1854. may This Court also overrule its estab- analysis suggests Court’s that a mens rea not, interpretation lished of a “if statute it finds as Burwell and his that other circuits ar- suggest, mechanically persuasively amici linked to have gued contrary construction.” provisions various of the statute accor- Critical severity Energy Project, dance with Mass the relative 975 F.2d at 876. penalty. urges Burwell us to overturn Harris be- sentence, (5) severity legislative weapon provision iautomatic assault O’Brien, 924(c)(1). (D.C.Cir. history. 130 S.Ct. at 167 F.3d 637-38 1999). deрravity” appeared “moral statement in the Because Gilliam was decided before factor, Castillo, however, analysis alongside Court’s of the fourth this omission has no effect recognition

the Court’s "[t]he immense on whether Court's statement danger posed by machineguns.” Id. at 2178. undermined the rationale of Castillo Harris. 924(c)(l)’s discharge pro- 7. The Federal Public Defender also overlooks held that Brown implied requirement, the fact this Court followed Harris in vision contains an intent Gilliam, approved United States v. when it a conclusion overruled Dean, reasoning applied Harris’s to the sem- 1853-56. (11th Cir.2007) (basing hold- 1268-69 decided the that has each circuit cause inappli- language of a of the statute and ing an element on is machinegun provision s 924(c) States v. cability Staples); also assumed United offense ha § Cir.2006) (8th Gamboa, weapon is re type of 439 F.3d knowledge of the Franklin, v. that the ma- holding States on the view (basing See United quired. Cir.2003) (9th (finding sentencing fac- provision was a chinegun F.3d Eads, to show the tor); was sufficient evidence States v. 191 F.3d United (same). weapon capable (10th Cir.1999) was “knew the All of defendant 1212-14 setting”); fired in an automatic being including the ones cited these cases— Fed.Appx. Rodriguez, v. prior States United and his amici—were decided Burwell (3d Cir.2002) without (assuming however, O’Brien, so it is unclear how type knowledge of the deciding im- circuits will evaluate the these other offense); an element weapon is respective on their pact of that decision Dixon, F.3d 640- 924(c)’s v. States require- § analyses of Cir.2001) (5th (assuming without decid best, plausibly can ment. At Burwell knowl makes defendant’s that Castillo im- ing other circuits have claim that three ca firing weapon’s automatic edge actually decided—that not plied though— offense). an element of pability if they reject Harris forced de- would question. One other circuit has cide the however, concede, seems to As Burwell continue to follow implied that fact, In rejected Harris. has no circuit possibility of a future logic. Harris’s con Burwell cites even the cases none of hardly the “tide of split circuit constitutes Franklin, analysis Harris. sider the necessary to judicial developments” recent concluded example, the court for overruling prece- an established justify presented was sufficient evidence Energy Project, 975 dent. Critical Mass to find that jury rational F.2d being capable was weapon knew setting, citing neither automatic

fired an Flaws in Harris’s c. Fundamental 924(c)(l)(B)(ii) analysis of § nor Harris’s ' Analysis at 1240. Similar 321 F.3d provision. Dixon, Rodriguez and ly, in both an en banc The final basis which wrestling with concluded—without courts may precedent set aside its own court knowledge decision, of whether larger question “if, of an earlier on reexamination submit any failure to holding on ‍‌‌‌​‌​​‌‌​​‌‌‌‌‌‌​​‌‌‌‌‌‌​‌​​​‌‌​‌‌​​​‌‌‌​​​​‌​‌‍an panel’s that a it decides —that jury was knowledge to the element of was fundamen- question of law important 54 Fed. Rodriguez, harmless error. See appellant’s ar- tally Despite flawed.” Id. Dixon, 747; at 641. 273 F.3d Appx. at contrary, wé remain con- guments to the reasonably cases can be of these None interpreted that Harris vinced analysis in Har rejecting our construed correctly.

ris. 924(e)(l)(B)(ii) regard- is silent Section and the Su- requirement,

Moreover, ing number of cir equal “ordinarily resisted] provi preme Court maehiiiegun have held that the cuits into a statute reading words or elements knowl implied contain an does not sion Dean, 129 appear on its face.” have that do although some edge requirement, text that the S.Ct. conclusion so based on their done 924(c)(l)(B)(ii) ma- provides sentencing enhancement. is a provision fire- if the Ciszkowski, penalty triggered chinegun 492 F.3d See United States machinegun a refers to a opinion arm “is” in United States v. Villanueva- —which Sotelo, being respect that exists “without (D.C.Cir.2008), state F.3d for actor, specific a and therefore without to proposition the that apply mens rea must respect any culpabili- or to actor’s intent offense, element every to unless words, Congress’s gram- Id. In ty.” other clearly See, Congress indicates otherwise. choice intent to elim- telegraphs matical its e.g., Arg. Recording Oral But 9:20—9:45. requirement inate additional mens rea Flores-Figueroa neither nor Villanueva- all, After particular provision. for a Sotelo stands for that sweeping proposi “is” a whether machinegun, firearm the Rather, holdings tion. the in those cases knows it or not. rested on present circumstances not here: namely, rules of “ordinary English gram The structure of the statute and mar” “knowingly” indicated the word 924(c)(l)(B)(ii) § context of sug the also 1028A(a)(l)9 § in 18 U.S.C. read be gest Congress did not intend it to “all apply to the subsequently ele listed requirement. include mens rea Dean crime,” ments of Flores-Figueroa, 129 Congress noted had defined “brandish 1890; generally see Villanueva- ing” provision, 924(c)(1)(A)(ii), § 18 U.S.C. Sotelo, 1239-41, F.3d at and Con requirement to include a mens rea because gress’s statutory use “aggravat title display to “brandish” means “to ... identity ed the of suggested 924(c)(4). theft” § order to intimidate.” fender must “know that what he has taken not, Congress however, did include such a identifies different real person,” Flores- requirement provi of the other Figueroa, 1893; 129 S.Ct. at Villa see 924(c). §in Congress sions in “[W]here nueva-Sotelo, 515 F.3d at 1246. The particular cludes one language in section of question before the pri Court was thus but it in statute omits section another marily of statutory one construction—in Act, same generally presumed it is words, other the Court had to determine intentionally acts pur how far down the sentence the word posely disparate in the inclusion or exclu “knowingly” Here, contrast, traveled. Dean, Here, sion.” 129 S.Ct. at 1854. 924(c)(1)(B)(ii) § “phrase contains no ... Congress simply cannot said that forgot that introduces the elements of crime [the] § 924(c), about mens rea when it drafted ” word ‘knowingly.’ Flores-Fi quite clearly drafters of the statute gueroa, 129 S.Ct. at 1891. And the struc require chose to a showing of intent for 924(c) legislative ture and history §of con particular provision one but for the tain that Congress no clues for an intended others. implied scienter modify argument, At oral Burwell nonetheless weapon-specific sub-provisions contended that implicit scienter re- 924(c)(1)(B). § 924(c) quirement §in applied must be machinegun element Finally, purpose §of quite 924(c)(1)(B)(ii), citing persuade clear: “to tempt- the man who is Court’s decision in Flores-Figueroa ed felony to commit Federal to leave his States, at home.” Muscarello v. United 1886, 173 (2009), L.Ed.2d and our own statute, identity crimes, federal theft 18 U.S.C. commission those other defen- 1028A, imposes mandatory transfers, uses, "knowingly possesses, consecutive dant two-year prison term on authority, individuals convicted without lawful a means of identifi- other during crimes if person.” and in relation to the another cation of avoid the wishing criminals higher penal- “[t]hose

141 L.Ed.2d discharge can penalty of the most dan- for an inadvertent to -the use attached ties Congress’s firearm handle' it of firearms reflect lock or unload the gerous [or] kinds a commensurate or during underlying to create deterrent with care the violent desire posed these danger increased at drug trafficking with the crime.” 129 id. legislative history weapons. See (citing the Similarly, wishing to avoid a 924(c)). however, argues, Burwell §of using, 30-year mandatory minimum for rea necessary is that a mens can carrying, machinegun a possessing pur- deterrent Congress’s to effectuate the carefully weapon, his “leave inspect that poten- pose, as deterrence “assumes home, yet or —best commit- —avoid punish- can what anticipate tial violators felony’ place.” the in the ting first they might receive.” United States ment argues pen- NACDL the of the severity (2d Cir.2008) Cavera, 550 F.3d 924(c)(1)(B)(ii) § alty violating for man-—a J., dissenting part). Sen- (Sotomayor, datory years’ sentence im- minimum of 30 using machinegun a tencing defendants for prisonment heightens the intuition — first, they the ensuring that knew without not eliminate the mens Congress would a “converts deter- characteristics weapon’s rea requirement. NACDL at 19-20. Br. mainly to one that is statute rent punitive.” liability “public NACDL strict wel- Finally, Burwell and Federal Public mandatory 30-year penalty vision’s must argue Harris Defender was fundamentally already guilty have been found of a predi- unjust penalties flawed because it imposes drug trafficking cate crime or of- violent co-conspirators. They note that with- fense, used, intentionally must have separate knowledge requirement, out a carried, during a possessed or firearm in co-conspirators “mere” low-level drug to, of, in or in relation furtherance might subjected conspiracies 30-year be to offense. for sentences violent or drug-trafficking 924(c) comparison § Burwell’s of to crimes machineguns committed with liability inapposite “strict crimes” is for the of furtherance as conspiracy, long as it In same reason. contrast to traditional reasonably is foreseeable that such crimes “public offenses, welfare” which under involve guns would kind. This mens rea government prove need not unjust, be argues, would the FPD if the all, government under this particular defendant “had no reason to rea mens statute to first establish foresee, know, let alone that some member respect predicate offense, to the and then conspiracy any member —would — that the intentionally (as possess machinegun use or opposed used, carried, possessed firearm the firearm).” generic to a FPD Br. at 14. course of crime. Similarly, Burwell’s premise argument But the of this is not comparison penalties recognize fails to necessarily correct. The Court fundamentally different contexts liability has not extended vicarious to situ- which penalties those are imposed. ations which “the substantive offense Video, Staples both X-Citement ... not reasonably could foreseen as a to impose Court declined years’ impris- necessary or consequence natural onment on defendants who would other- Pinkerton v. Unit- agreement.” unlawful wise not be convicted of any crime. Here, ed 640, 647-48, 66 by contrast, already the defendants face 90 L.Ed. 1489 Because the substantial committing sentences for a vio- machinegun provision anis element of the lent years crime. While additional 30 924(c) offense, § substantive it is not clear obviously represents a multiple substantial (and to) express we opinion no whether sentence, of their severity pales its in com- liability would co-conspirators attach to parison imposing lengthy jail sentence reasonably who could not foresee the use on a person who otherwise be free. of machinegun.10 Moreover, abovе, as noted several federal expressly impose statutes penalties reasons, these severe For remain unper- we mens rea for requiring every without Harris ele- suaded fundamentally Moreover, manipulate extent FPD require- ob- should not jects finding co-conspirators "mere” vicari- perceived injustice ment account for some ously liable acts committed their con- wrought by conspira- the elements of criminal spirators, problem his lies law with the cy- 924(c). conspiracy, not with The Court law, and therefore IV as a matter of flawed failed to demonstrate appellant conclude stare decisis is principle Because justify that would any of the considerations importance “of fundamental to the rule of Accordingly, we need overruling Harris. law,” Welch, that if appellant’s claim reach imposes substantial bur- evi- knowledge requirement, contains advocating party den on a the abandon- con- was insufficient to sustain his dence precedent. of an will ment established We viction. prior simply not overturn our decision be- a reading

cause Court dicta might inference that support some Ill case, future in some come to might, simply Our question approach. job our Appellant also claims that apply currently to law as it existí O’Brien, lenity -requires rule of of light to conviction under vacate his the Court two Judge Kavanaugh’s dissent makes 924(c)(i)(B)(ii). Br. at Appellant’s § 28. First, he argues dubious claims. the interpreta of lenity prevents

The rule precedents definitively Court’s silence, statute “so as to tion of a federal criminal statutory establish that neither nor places penalty Congress’s that on an to rea in increase decision include mens interpretation parts can certain of a statute but omit it in when an individual such others, the presumption serves to defeat guess a to on no more than as be based Second, he mens rea. contends that Congress intended.” United States what ap- Supreme Court established and Villanueva-Sotelo, 515 F.3d statutory a for plied interpretation rule of (D.C.Cir.2008). invoke the rule of But to imputes federal wherein crimes Court that “there is lenity, a court must conclude mens rea to each ele- uncertainty in the or grievous ambiguity plainly i.e., ment of unless ex- an offense Muscarello, at statute.” — plicitly otherwise. Flores-Fi- added). (emphasis simple “The —indicated with dissent gueroa is the lever which the statutory ambiguity ... of some existence proposes upend precedent to decades of application of not sufficient to warrant is bona fides of these other- and establish the rule, ambiguous for are most statutes wise assertions. But that case unmoored degree.” at to some up task. is-not grievous ambiguity There no is because, twenty held here as this Court Judge analogize Kavanaugh’s attempt to structure, Harris, statuto years ago position government our to that of context, purpose ry inapt, Flores-Figueroa because 924(c)(l)(B)(ii) make clear that § all -acknowledges case—as he —involved separate does not contain provision containing explicit an mens rea statute Indeed, the Supreme requirement. (pun- § 18 U.S.C. 1028A requirement. See transfers, to declining ap held Dean when ishing “knowingly who someone 924(c)(l)(A)(iii), § lenity the rule of to ply ... a means of identifi- possesses, or uses statutory committing and structure person” “the text convince while cation another require crime); proof predicate that” did nоt an us enumerated 924(e)(l)(B)(ii) rea, con- and Burwell’s any additional mens 1888-89. Section Kava- enough language. Judge to no “contrary arguments are tains such down the asser- naugh’s argument boils to grievously ambiguous.” the statute render the text of tion that we should rewrite case, require- § imply suggest a mens or other con- these two exist, where none was meant ment siderations should be balanced order assertedly strong an the service of “tradi- imply determine whether a court should rea” applica- of mens tional mens rea when faced every an ble element of offense. statutory silence. If an anything, such test, open-ended creates a much greater ie., Historically, boy archetype, the altar potential spillover into a other “host of conduct, imposition justified innocent of an solution, applications” than does our which gloss on extratextual statutes lacked firmly rooted in the text and structure of explicit requirement. an scienter (B) 924(c)(1) (ii). rejected Flores-Figueroa, government’s argument the absence Finding nothing in the Supreme Court’s of innocence should circumscribe the reach caselaw, holdings, our own “deeply root- >f)f an explicit requirement. ed principles justice,” law and Kava- Judge Kavanaugh portends insists this naugh justify Dissent at that would major shift in jurisprudence. the Court’s overturning Harris, our decision in we af- Perhaps. ignoring But of an the lack inno- firm previous our conclusion rationale where a statute contains cence 924(c)(1)(B)(ii) require gov- does not express requirement not mean inno- does ernment that a knew is irrelevant cence where the statute is used, weapon carried, that he pos- the or Indeed, strongly silent. the Court’s textu- sessed was a machinegun. Accordingly, approach al in Flores-Figueroa counsels panel we reinstate the opinion and affirm judicial against creation aof mens rea appellant’s conviction. every element the face SENTELLE, statutory Judge, concurring: Chief

of silence. Judge Kavanaugh, I applying Although rules of his confess to having come late creation, ignores own of to expressed the role the wisdom by Judge innocence Henderson, join and concludes I presumption— proce- the mens rea her view that the large justifies background writ dural an extratextual of this ap- ease and the —still (or countertextual) even reading plicable of proof burden make it apparent statute, background because that that pre- the end we have improvidently sumption applies granted to banc every Upon examining element of a en review. case, criminal offense the I Congress expressly unless merits recall the conclu- it. Nothing previously expressed disclaims sion of Flores-Figueroa our one or other in an Supreme precedent colleagues earlier in an Court concurrence supports that en result. banc decision: “Because I that believe in a close en banc case prior precedent is Judge Rogers’ approach even is more respect, join majori- entitled to some I the unbounded. Her balancing solution—a ty Mills, opinion.” United States v. completely test unmoored from circuit or (D.C.Cir.1992) (Silberman, F.2d Supreme precedent substantial- —is J., concurring). ly broader than pro- have anything we (“I posed. See my notes, id. at take majority As statutory the this is a from Staples lead hold that simply question, the with implica- albeit constitutional thirty-year imprisоnment term of ... is so in statutory tions. Errors interpretation in length outweighs severe that it the fact reparable by congressional are action. that the conduct prohibited is not other- our interpretation Errors in reparable are innocent[.]”). wise Staples, Nowhere does the action of the Court. Therefore, question hearing petition the is a should have when close been sum- marily exceedingly panel one I think is denied the decision left one—and prece- intact. accept weight will close—I majority and vote with leave dent First, en banc consideration is not “nec- controlling inter- this circuit’s

undisturbed essary uniformity to secure or maintain 924(c)(1)(B)(ii). of 18 U.S.C. pretation R.App. court’s decisions.” Fed. P. so, Nonetheless, doing agree I 35(a)(1). The sole on en review issue banc argument” boy that the “altar dissent 924(c)(l)(B)(ii) is “re- whether 18 U.S.C. majority unconvincing perhaps quires government slippery slope. the head some stands carry- knew the he weapon defendant was good enough posit I think it not that do ing capable firing automatically.” illegal know someone should conduct Maj. at 502. law on Op. Circuit this issue to avoid it the illegali- and therefore where has twenty been clear and consistent for may ty of conflict be measured Harris, years. In United v. States is, poses That the dissent fair degrees. (D.C.Cir.1992), rejected F.2d 246 we quoted from question, argument defendant’s govern- “the apply it asked: “Would we statute when ment must show the defendant knew the ‘knomngly pos- makes it unlawful precise concluding nature of weapon,” drugs’ person pas- to a who steals sess only instead need show senger’s bag knowing bag without “knowingly intentionally pos- drugs (quot- inside?” Dissent at 536 firearm, sessed a and that did so [he] ing Flores-Figueroa intentionally to facilitate” one of the two 1886, 173 L.Ed.2d types predicate offenses identified in (2009)). 924(c)(l)(B)(ii) section of crime —either not suggest I do the defendant drug trafficking violence or crime. Har- inflicted present any case has been the ris, prece- 959 F.2d 259. None our injustice. Judge sepa- Henderson’s great dents —either before or since Harris— points futility rate concurrence out Nor, holding question. calls into as the its Nonetheless, making suggestion. such a demonstrates, deftly majority opinion so express majority and the dissent both did States the United Court’s and strong arguments well-reasoned O’Brien, decision United States and, above, positions, as I I their stated which, acknowledging the “case not d[id] majority concur with the because of the require the Court consider conten- to stability in our principle inherent doctrine uses, carries, tion or that a defendant who of stare decisis. possesses a firearm must aware characteristics,” weapon’s “expresse[d] no HENDERSON, KAREN LeCRAFT — -, point.” views Judge, concurring: Circuit 176 L.Ed.2d 979 wholeheartedly join majority opin- I rehearing The issue on likewise falls writing why ion but am at a loss its be- ground short on the second for en banc necessary place. in the En came first is, review, plainly it is not “a two to purposes: banc review serves en- question exceptional importance,” Fed. consistency sure the our caselaw and to 35(a)(2). exceptional importance. R.App. P. Because Burwell’s tri- resolve issues of 35(a). R.App. request al failed to an appeal Fed. P. counsel instruction Because jury be to Burwell purpose, neither I believe the re- find serves capability,1 gang automatic we flects that the gun’s knew the members decided to military weapons use such as AK-47s in- give failure to such an treat thе court’s handguns stead they because believed rigorously less and review it for instruction metropolitan police respond” “wouldn’t plain only. error See United States v. if they weap- “robb[ed] banks with assault (D.C.Cir.2011).2 Laureys, 653 F.3d they ons.” Trial Tr. at 3950. And used standard, error plain Under the Burwell their repeatedly AK-47s and aban- (1) Moreover, don.3 legal establish error when Burwell carried the “would have to perform AK-47 (a during to “crowd control” (2) term that is plain synony- that was robbery, one a circular drum 75-^round (3) obvious), mous with clear magazine was to gun. affixed With rights.” (quo- affected his substantial attachment, gun’s po- automatic omitted). tation marks and alterations tential eye-popping particularly to a — charge if to Even the failure mens rea gun afficionado like Burwell.4 Appel- See satisfy prong were error so the first lee’s Opp’n manag- 2-3 & n.3. Even the (a majority possibility opin- of the test bank, target er of really who “d[id]n’t refutes), definitively ion it not satis- guns,” know about testified it “look[ed] fy prongs. the second and third It could gun type like a machine of gun.” Trial “plain” not be it because “contradicted no overwhelming Tr.1916. Given the evi- precedents the Supreme of this Court or gun’s dence Burwell knew the if capability, it could Court.” Id. Amd not “affect [Bur- had charged jury court on mens rights” well’s] substantial because it did rea as Burwell tardily presses, now “unfairly prejudice” given not him could not have finding avoided that he overwhelming he was evidence aware the weapon knew the was machine weapon. firearm was an automatic him in any convicted Accordingly, event.5 Mahdi, States v. 598 F.3d 891 n. 8 the failure so instruct the did jury (D.C.Cir.2010). testimony The trial unfairly re- prejudice Burwell.6 government during AK-47) pre- 1. The moved trial eluding fully the two-handled "in au- mode, closing argument requiring clude ‘spraying’ tomatic pursuing bullets at a only opposi- defendant Morrow filed police Appellee’s Opp’n car.” Corrected See Opinion, tion. United Banc, Appellant's .Memorandum Reh'g Pet. for En at 3 n.3 Morrow, l:04-cr-00355, v. States No. at 1-2 2, 2011) (Sept. (Appellee’s Opp'n). It was (D.D.C. 20, 2005). June The district court Burwell, after pre- this incident that who had motion, granted declaring "any the that clos- viously participated gang with the in an ing argument by sug- Defendant which carjacking, armed told two of the members he gests he not pre- could have known the robbing wanted to start banks with them. weapon alleged cise automatic nature of the 924(c)(1) a charge in Section is both irrele- arrests, 4. police After the the found improper.” and vant Id. at 7. "stash[esj” gun-related paraphernalia, in- (con- cluding bulletproof glove a vest and a opinion majority correctly 2. The concludes DNA) gun nected to Burwell and three good that Harris remains law therefore periodicals, one of which bore eleven of Bur- sufficiency does not reach the evidence fingerprints pages. Appellee’s well’s on its plain Maj. or consider error Op. review. See Opp’n at 3 n.4. sufficiency at 514-15. I address of the evi- dence/plain emphasize our error mistake in light overwhelming scienter evi- bancing particular, en this case in without dence, not, plainly Burwell as the dissent having continuing validity. reach Harris's might suggest, a genuinely defendant "who During gang’s robbery, thought gun first armed Bur- was semi-automatic.” Dis- 528; (in- co-conspirators well’s fired three AK-47s sent at see also id. at 553.

519 Harris, conflicting Supreme holding no our United States v. 959 there is Because (D.C.Cir.1992), 259 that convic- the issue F.2d precedent and Court or Circuit 924(c)(1)(B)(ii) § did tion under U.S.C. proceeding, so late in the was contested rea, require proof prem- mеns egregiously inappropriate an appeal is opposite does “[T]here ised on view: That en for en banc review. candidate significant a not seem to be difference only granted was nonetheless banc review a rea between defendant who com- mens appeal and prolonged Burwell’s meritless drug using pistol a crime a and one mits parties’ the court’s and the squandered using a ma- who commits same crime resources. different, act is gun; chine but the equally blameworthy,” mental state is id. ROGERS, dissenting: Judge, Circuit not, (Brown, J., see ante Dicta or at 509 majority op.), Supreme has Court stated many of reasons For rejected key underlying Har- twice basis I Kavanaugh, vacate the Judge no rea ris’s conclusion there is mens judgment of conviction under 18 U.S.C. 924(c)(l)(B)(ii).1 See 924(c)(l)(B)(ii). concludes, The majority Union, v. McLean Patterson Credit decisis, the doctrine of stare applying 109 S.Ct. L.Ed.2d U.S. “Burwell and his amici have failed Louisiana, (1989); Montejo see also v. any intervening legal devel- establish 778, 792-93, 2079, 173 removed, weakened, much less opment 35(a)(2). (2009); R. L.Ed.2d D.C. CIR. conceptual underpinnings of Harris.” (em- (Brown, J., majority op.) Ante at 510 date, precedent To Court’s added). But phasis whether regarding a criminal statute machine- carrying stated that has twice interpreted requiring proof should be gun heightened See culpability. involves (1) mens rea has statutes that involved: — O’Brien, -, v. U.S. United States rea, explicit were contained mens but 176 L.Ed.2d 979 to how far unclear as the mens re- (2010) (stating “choosing” a machine- (2) “travel”; quirement should statutes “moral Castillo depravity”); involves but, showing that were silent á absent rea, risked criminalizing otherwise (2000) (“[T]he conduct; (3) 5.Ct. L.Ed.2d mi- statutes with innocent say, pistol between carrying, difference punishments “public nor deemed welfare” offenses, ... carrying great, where the was less con- machinegun kind.”). Undeniably, dispensing cerned with with mens degree both " guilty prejudice, plain error error. In the absence of such absent the by corollary Johnson, 1162, as well is foreclosed 216 v. F.3d 1167 n. 5 States that, plain-error standard instructs which States, (D.C.Cir.2000) (quoting Neder v. United met, prongs of the three is even if each 1, 19, 1827, L.Ed.2d 527 U.S. 119 S.Ct. 144 plain a mat- should "correct error as court (1999)). 35 only seriously ter of discretion if the error fairness, repu- integrity public affected the or observed, "Supreme court has 1. As this Court judicial proceedings.” Id. at 353-54 tation of greater tends to have force.” dicta somewhat omitted). (quotation marks and alterations 366, Dorcely, 375 United States v. 454 F.3d Moreover, prop- plain even were error not (D.C.Cir.2006) (quoting Bangor Hydro-Elec. standard, alleged error would er FERC, (D.C.Cir. 662 Co. v. F.3d reversible "be- "harmless” therefore not FERC, 1996)). v. F.3d See Winslow beyond it' is ‘clear a reasonable doubt cause (D.C.Cir.2009). jury have found the that rational would 924(e)(l)(B)(ii) Balint, requirement. Section does 258 U.S. S.Ct. (1922)). criminalizing otherwise innocent L.Ed. 604 The second risk is that sense, “silence on point conduct in but the mandated this itself does not minimum, necessarily that suggest consecutive intend thirty-year term of ed dispense with a imprisonment public conventional mens means welfare ex- rea element” because courts must ception In the “con inapposite. absence of strue in light the statute of the back controlling precedent, given that Har- ground law, rules of the common I which premise rejected, ris’s scienter has been some hold, mens rea for a following analy- based 605, 114 firmly crime is sis, embedded.” Id. at punishment that the severe additional S.Ct. 1793 States 924(c)(1)(B)(ii) (citing United v. United (mag- mandated section Co., Gypsum 436-37, States greater nitudes than of the other stat- (1978)). 57 L.Ed.2d 854 utes considerеd in the relevant explained: Court has precedent) requires for conviction proof knowledge of the defendant’s There can be no doubt that this estab- a machinegun. the firearm was concept Accord- lished has influenced our inter- ingly, I respectfully dissent. pretation Indeed, of criminal statutes.

we have noted that common-law rule I. requiring mens rea has been “followed in regard statutory crimes even that the fact concluding that the fire- statutory where the definition did not in arm machinegun was a under section terms it.” Relying include on the 924(c)(1)(B)(ii) offense, is an element of the rule, strength of traditional we have factor, sentencing rather than a the Su- stated that require offenses no preme acknowledged in O’Brien generally disfavored, are the structure of section de- have suggested that some indication of mands escalating imprisonment terms of intent, congressional express implied, for increasingly culpable conduct. See 130 required with dispense mens rea as S.Ct. at 2178. But the Court also stated an element of a crime. “expresse[d] no views” on whether 605-06, Id. at 1793 (quoting Bal- provision required proof of mens rea. int, 301) 251-52, (in- 258 U.S. at Id. at 2173. The issue was not before the omitted). ternal citations Court; indeed, decide it would have quite diversion: section In addressing background these princi- 924(c)(l)(B)(ii) not fit does well with Su- ples, adopted the Court general three preme Court precedent determining rules of interpretation: requires proof whether a statute of mens First, ordinarily phrase “courts read a rea. a criminal statute that introduces the ele- background principles Two underlie con- ments of a crime the word ‘knowingly statutory sideration of Burwell’s challenge. applying that word to each element.” The first is “determining Flores-Figueroa mental v. United state required for commission of a federal L.Ed.2d 853 (2009) requires crime ‘construction of the (citing statute United States X-Citement Video, ... Inc., 64, 79, inference the intent of Con- 115 U.S. S.Ct. ” gress.’ States, (1994) Staples v. (Stevens, J., 511 130 L.Ed.2d 372 con- 600, 604-05, (“[T]he U.S. normal, curring) S.Ct. commonsense (1994) (quoting L.Ed.2d 608 reading United States of a subsection of a criminal stat- public year prison a ten term as ‘knowingly’ ing by the word ute introduced offense, noting “[h]istorically, modifying as each of welfare that adverb to treat identified in has imposed of the offense under statute penalty the elements subsection.”)). This in consideration deter- significant the remainder been a fundamentally grammar— about a rule should be con- mining whether the statute through to read to “travel” the mens rea is rea.” Id. dispensing as with mens strued (or statutory sub- the sentence the end of sum, rules of statu- these traditional section). that si- tory apply, except interpretation Second, silent as to the statute is where of an absence of a lence is not evidence rea, rule no provides so the first (at where the requirement least requirement, of a mens rea source innocent). otherwise conduct at issue is applied has Supreme Court does, however, evi- provide such Silence criminalizing other to avoid of mens rea welfare offense public dence where presump “[T]he innocent conduct. wise applies. Together these three exception of a scienter tion in favor suggest that if neither of the first rules statutory ele to each of the apply should rea, supply are able a mens two rules otherwise innocent ments that criminalize statute will fall within the third then the States v. X-Citement conduct.” United Ex- public welfare" offenses.2 category Inc., Video, 513 U.S. S.Ct. when, here, it does not. cept also, (1994); e.g., Sta L.Ed.2d 372 see 1793; 614-15, 114 511 U.S. at S.Ct. ples, A. Liparota v. United date, interpretative To the three rules 426, 105 2084, 85 L.Ed.2d 434 S.Ct. in Supreme in tandem have worked Third, recognized ex- the Court against precedent requir to counsel for or principle disfa- background ception ing example, of mens rea. For proof liability “public crimes for voring strict construing provisions whether the criminal “In “regulatory” offenses. welfare” or Act Antitrust Sherman statutes, , ha[s] construing [the Court] such rea, Gypsum proof of mens silence that did inferred from that, although Act contained no noted of mens rea to require proof not intend to mind,” “mention of intent or state at Staples, an offense.” establish 2864, “the behavior 98 S.Ct. 606, 1793. Public welfare of- S.Ct. Act is often difficult to proscribed in “‘limited recognized been fenses have socially gray from the zone of distinguish recog- cases Typically, [ ] circumstances.’ economically justifiable acceptable and involve statutes that nizing such offenses conduct,” 440-41, 98 id. at business injurious potentially harmful or regulate proof thus concluded 2864. The Court Gypsum, 438 U.S. at (quoting items.” Id. light of the required, mens rea was 2864). public But welfare attitude to non inhospitable “generally uniformly involved offenses have “almost mens rea offenses.” Id. only light penal- provided statutes that jail as fines or short sentences.” ties such Likewise, Liparota, the Court consid- 1793. The Court Id. at years imposing up to five ered a statute rejected labeling impos- a statute Staples J., dissenting). vanaugh, categories not a few other narrow 2. There are (Ka- post n. 10 relevant here. See at 537-38 unlawfully acquiring imprisonment accepted possessions, as lawful their possessing stamps, food 7 U.S.C. potential[ destructive ... cannot be ] 2024(b)(1), Liparota, § see at put said to sufficiently owners 420-21, 105 S.Ct. 2084. The statute in notice of the likelihood of regula- Liparota explicit included an tion .... respect “to some

with element of the 611-12, at Id. 114 S.Ct. 1793. crime,” unclear far through but was how “knowingly” the statute the word traveled. The Court also observed that because Id. 105 S.Ct. 2084. The Court “any semiautomatic weapon may be con proof concluded was verted, or, either internal modification interpret because “to the statute otherwise cases, simply by tear, some wear and would be to criminalize a broad range into a machinegun meaning within the apparently innocent conduct.” Act,” id. at impos Likewise, 105 S.Ct. 2084. re- ing strict liability “potentially im jected the contention that the statute was pose criminal sanctions on a of per class offense, public welfare because food sons whose mental ignorance of the state — stamps far from “a type were of conduct weapons characteristics of posses their person that a reasonable should know is entirely sion—makes their actions inno subject stringent public regulation and cent,” 614-15, id. at Final S.Ct. 1793. may seriously' community’s threaten the ly, the Court concluded that the “harsh” safety.” health or Id. at years’ imprisonment ten imposed by the statute, combined with the otherwise inno Staples presented Court'in with conduct, cent nature of the meant the stat criminalizing possession statute of unreg ute was not a public welfare offense and firearms, including istered machineguns, that it required proof of mens rea. Id. at punishment of up years’ to ten impris 616, 618-19, 114 S.Ct. 1793. onment, 5861(d); § 26 U.S.C. id. Video, Similarly, in X-Citement 5845(a)(6), Staples, see 511 U.S. at 602- Court considered a prohibiting statute “the 03, 114 Although S.Ct. 1793. the statute interstate transportation, shipping, receipt, explicit contained no mens rea to “travel” distribution, reproduction of visual de subsection, through rejected the Court pictions of engaged sexually minors ex argument Government’s provi conduct,” plicit 65-66, 115 513 U.S. at offense, sion was a public noting welfare 2252). (citing 18 U.S.C. The statute “long widespread tradition of lawful contained “knowingly,” the mens rea but it gun ownership by private individuals in was unclear whether it should “travel” country.” through the entire subsection require course, Of might surely we classify proving the defendant age knew the certain categories of guns doubt —no person depicted in the video. Id. at including the machineguns, sawed-off 115 S.Ct. 464. The Court concluded that shotguns, and artillery pieces the mens rea through traveled the entire subjected regulation— subsection, noting age per as items ownership of which would depicted son have the the video was “the crucial quasi-suspect same character separating legal we element previously [have attributed to innocence from pub- lic wrongful welfare precisely But conduct.” Id. at offenses.] be- guns Furthermore, cause falling outside those cate- the Court concluded gories traditionally widely have been the statute public was not a of- welfare

523 rea, of mens Court ing proof not harbor set “persons do because fense mag of turned to the defendant’s contention that that the contents expectations tled of subject apply. to mens rea should generally film are and azines rejected the regulation” applicability and the “harsh The Court public stringent presump- prison” presumption, reasoning to “up years 10 penaltfy]” being a strict line of cases involved situations where against the statute tion counseled 71-72, -at issue would be innocent if welfare Id. at the conduct liability public offense. as the believed the facts were defendant 115 impose “It is unusual to criminal them. B. purely for the punishment consequences unusual accidental conduct. But it is not analysis Dean v. United unintended punish individuals for the L.Ed.2d 129 S.Ct. of their consequences acts.” unlawful (2009), suggest at might glance first origi- (emphasis 129 S.Ct. 1849 at rules, it too is among the three but conflict nal) alia, (citing, inter 4 W. Blackstone, with them. The Court held consonant England 26- Commentaries Laws 924(c)(l)(A)(iii) not re- § does 18 U.S.C. (1769)). The Court noted that “the of mens rea. That subsection quire proof already guilty of unlawful [was] present during if the firearm provides drug twice over: a or traf- conduct violent crime “is dis- drug trafficking a violent or use, and ficking carrying, offense or sen- the ‍‌‌‌​‌​​‌‌​​‌‌‌‌‌‌​​‌‌‌‌‌‌​‌​​​‌‌​‌‌​​​‌‌‌​​​​‌​‌‍defendant shall “be charged,” of a firearm in the course of possession not imprisonment a term of tenced that offense.” Id. years.” 18 U.S.C. less than 924(c)(l)(A)(iii). unlike provision, This Thus, interpreta- neither of the two first by the the ones considered grammatical statutory tive rules of rules— cases, a sentenc- discussed was previously presence nor the construction of otherwise than factor rather an offense element. ing innocent in favor of conduct—counseled Dean, 556 U.S. at 129 S.Ct. 1849. rea, requiring proof of mens and the Court “ordinarily re- noted that The Court that no such proof required. thus held reading words elements into a sistfs] holding, 129 S.Ct. In so Id. at face,” id. appear that do not on its statute not, however, classify did (internal quotation at public as a welfare offense. Nor provision omitted), highlighted marks and citation question it as a it frame the before did voice “focus- passive that the of the statute that have mens choice between offenses respect ... es on an event without welfare оf- requirements public id., com- culpability,” intent or actor’s 580, 129 that do not. id. at fenses See provision provision with another- pared (Stevens, J., dissenting); S.Ct. 1849 Sta- did a mens rea: the statute that include (de- at ples, 511 U.S. “brandishing” provision, 18 U.S.C. excep- as scribing public welfare offenses Dean, 924(c)(l)(A)(ii),. see congressional rule that silence as to tion to 572-73, the tools Applying 129 S.Ct. 1849. mens rea is not read to mean construction, de- statutory the Court dispense requirement). intended to the stat- ] clined to ] “contort! stretch! from understand- departure This the usual require- utory language imply an intent being ing public welfare offenses 574,129 ment.” Id. at S.Ct. 1849. narrowly “few ex- among the delineated Dean, concluding ceptions,” text and struc-

Upon J., (Stevens, dissenting), explained support requir- statute did ture of the “discharge” provision fact that the including the the presumption of mens rea for at issue in Dean was not an at “offense” statutes risk criminalizing otherwise all, public thus the welfare offense innocent conduct.4 exception, general and its limitation to punishments, statutes with minor see Sta- C. at ples, 511 U.S. S.Ct. did In the ease today, before the court the not influence the Court’s conclusion that interpretative rules, form, in their present “discharge” provision required no provide cannot the answer to whether the proof despite year of mens rea its ten machinegun provision requires proof of Instead, mandatory prison term. pro- 924(c)(l)(B)(ii) mens rea. Section has no factor, sentencing vision was a which “in- explicit mens rea to “travel” through the special features of the manner in

volve[s] subsection, and it does not risk criminaliz- which a crime basic was carried out.” Id. ing “entirely innocent” conduct. Thus nei- (internal at quotation 129 S.Ct. 1849 ther of these two rules counsel in favor of marks, citation, omitted).3 and alteration requiring proof of mens rea. But nor do public Because the prece- welfare offense they necessarily require imposition of dent was inapplicable to the sentencing liability strict either. The narrow excep- Dean, factor at issue the Court had no tion to the favoring proof rea, rule of mens occasion to decide whether it creating the public welfare exception, offense does type liability crime, a new of strict outside apply Supreme Court has con- the traditional conception public welfare —the cluded that firearm statutes do not fit general offenses. The purpose of sentenc- type within the of crimes ing punishment contemplated by factors is to increase for a public proven exception, welfare Staples, offense. See see Almendarez-Torres 611-12, at and has suggested 140 L.Edüd exception Be- that the has been gen- cause the provision did not erally deal with an limited to statutes with penal- minor offense, the merely ties, had apply 616, 618-19, to id. at 114 S.Ct. 1793. construction, traditional tools statutory 924(c)(l)(B)(ii) Section represent disagreed 3. Justice Sevens ing with the Court's factor status were critical to the conclu- implicit conclusion that the distinction be- sion in Dean that the mens rea provision's tween a status as an element or a apply, expect did not one would sentencing factor was relevant to whether a Court to have rejecting application said so in provision must fit within the definition aof presumption. of the Instead the Court ex- public welfare offense in order to be a strict plained length that the did not 580-81, liability offense. See id. аt apply because the conduct at issue was not (Stevens, J., dissenting). Dean, otherwise innocent. See 556 U.S. at 574-77, 129 analysis S.Ct. 1849. theAs suggests, Dean preventing 4. This there is no rule suggest discussion of Dean a different rea, presumption in conclusion than favor of "discharge” provi- where the factor, criminalizing statute risks sentencing sion's status as a otherwise innocent rather conduct, element, distinction,” applying sentencing than an from is "the crucial factors. J., post reading But even (Kavanaugh, dissenting), rejection be- Court’s tween Dean and regarding rule in instant case Dean to turn on operation "discharge” provision's presumption. of the mens rea status as a sen- Dean, all, factor, tencing after controlling given first seemed necessarily would not follow analysis statutory Court's presumption always text and that the mens rea applies elements, the fact that machinegun provision, statutory regardless like of whether Dean, the one in criminalizing does not risk the statute criminalizing does not risk other- otherwise innocent conduct. If the sentenc- wise innocent conduct. determining whether liability for consideration category of strict entirely new applies impose liability. strict exception a sen- imposes offense elements—one punish- must have a minor any of the If an offense larger than magnitudes tence offense, and in public ment to be a welfare cases the Court in the relevant statutes limiting category the Court was so considered. previously has protecting background concerned territory, courts rea uncharted In this crimes, disfavoring non-mens rea principle from relevant Su rely on clues sonably penalty,” a “severe id. presence then the Taking the word case law. Court preme not, should without at S.Ct. description Flores-Figueroa’s “element” por- express Congress, statement indi (despite the context the first rule liability category tend a new of strict rule, to a opposed as cating grammatical crimes. “sen “elements” and between distinction this conclu- factors”), 652, 129 majority characterizes at S.Ct. tencing U.S. existing “broadening] sion as the reach of it with a dissected combining ... ... rule, Staples, Judge precedent [because] [i]n Kava from the second phrase severity consideration of the presumption of the Court’s “the naugh concludes: that, decidedly was narrow.” Ante Congress penalty means unless mens rea (Brown, J., otherwise, majority op.). Although at 513 the Govern plainly indicates Staples adopt declined to “a mens rea Court must the defendant’s ment offense,” at definitive rule of construction to decide post of the element each case,” J., dissenting), regardless [that] (Kavanaugh, discussing the anywhere the Court was not that “element” is of whether rea, severity pun- of a general relevance of the mens or whether explicit near an requires to whether a statute criminalizing otherwise inno ishment risks statute was proof of a of mens rea. Instead Court may It be somewhat cent conduct. a clear state- considering whether “absent inapplicable half of one to take stretch rule, from that mens rea is rule, inapplicable ment plus half of another apply should not required, [courts] it to be “established and declare rationale to inter- rule,” public Bur- governing id. at applied [ ] offense welfare felony offense defining statute pret well’s case. (em- dispensing as with mens rea.” a new rule such setting than out Rather added). The was not com- phasis Cоurt this, majority potential- fears which the as severity of the menting on whether the of other ly sweeps into its ambit host broadly relevant to the penalty imposed is (Brown, J., at 507-09 applications, see ante question outside the context this case can be resolved majority op.), offenses, simply declin- public welfare but ground. a narrower definitively limiting ing to establish a rule “[historically, Staples stated welfare offenses public the four-corners has been imposed under a statute penalty felonies. to exclude determining significant consideration consider- independent as an be construed as Understood the statute should whether ation, rather than as one tethered rea.” U.S. at with mens dispensing offense, added). public of a welfare Al- definition (emphasis imposed by a length punishment was made in the though this statement light must be considered public welfare statute holding context purpose of the there is no ob- exception inapplicable, the statute it is rebutted where this whether to limit the relevance of vious reason not, crime,” the interpretive 924(c)(1)(A), § does as rule has been 18 U.S.C. warrants defined, criminalize twenty years’ otherwise innocent additional imprisonment that, conduct. In the context of statutes possession over such of a semi-automatic rea, showing absent a of mens risked crim assault weapon, compare id. conduct, inalizing otherwise 924(c)(l)(B)(i), 924(c)(l)(B)(ii). innocent with id. punish described a A leading commenter has observed that years’ ment of ten imprisonment hostility liability strict for crimes “harsh” and “severe.” Staples, 511 protects a defendant “unaware of mag- 1793; X-Citement wrong Vid nitude of the Wayne doing,” he is R. eo, (5th 513 U.S. at 115 S.Ct. 464. “In such ed.2010) Law LaFave, Criminal case, the usual that added); (Kava- a defen (emphasis post see at 543 dant must know J., the facts that make naugh, his dissenting); ante at 516-17 illegal conduct should apply.” Staples, (Sentelle, C.J., (“I concurring) do not think U.S. at 114 S.Ct. 1793. But where good it enough posit that someone traditional presumption of mens rea does should know illegal conduct is and there- apply because the conduct prohibited fore avoid it where the illegality of the not, intent, is in the absence of otherwise may conduct be measured in degrees.”). innocent, ten-year penalty may not be so The Court’s observation in Staples, 511 harsh require as to more than congression 614-15, U.S. at is directly al dispose silence to of the mens rea re point: “The Government does not dis- See, quirement. e.g., ante at pute 508-09 ... virtually any that semiautomatic (Brown, J., majority op.) (citing 18 U.S.C. weapon may be ... converted into a ma- which increases maximum term of chinegun .... gun Such a may give no imprisonment for certain robbery bank of externally visible indication that it fully is years fenses from one to ten when value of automatic. But in view, the Government’s stolen property, money, or thing of any person value ... subject can be to imprison- $1,000); exceeds ment, Carter v. United despite ignorance absolute cf. 255, 272-73, gun’s firing capabilities, if turns 2159, 147 L.Ed.2d 203 (internal out to be automatic.” citations omitted). punishment, then, For of an

Without deciding how the interpretative additional twenty-years’ imprisonment for might rules unfold a case with a differ- automatic, possessing an rather than a ent statutory punishment, I would my take semi-automatic, firearm, silence, neither lead from Staples and hold that the man- nor mere passive use of a voice or the thirty-year dated consecutive term of im- meaning of surrounding provisions, see prisonment imposed section Dean, 572-74, 556 U.S. at 924(c)(l)(B)(ii) is so sеvere that it out- are sufficient to rebut the traditional mens weighs the fact that prohibited the conduct offenses, for criminal is not totally otherwise innocent. the Government must a defendant O’Brien, the Supreme Court defined the knew possessed the firearm he was a ma- 924(c)(l)(B)(ii) section offense in terms of chinegun in order to obtain a conviction the automatic firing characteristic of the 924(c)(l)(B)(ii). under section firearm, see 130 given S.Ct. at “[t]he danger” immense and “moral depravity not, This is as the majority charges, an choosing weapon,” id. at 2178. Con- “unbounded” approach, ante at 516 gress has determined that possessing (Brown, J., majority op.); instead is machinegun “during relation quite tightly by bound uniquely severe crime of violence or drug trafficking mandatory term of imprison- consecutive a firearm by possessing punishment of vere ment, by the dearth demonstrated as may physically indistinguish- of mens considering proof appear whether cases face of such severe in the has at- able from one to which 924(c)(l)(B)(ii) man- section Staples, punishment penalty, a far see tached lesser unusual, posing risk is it Nor 614-15, dates. Final- 114 S.Ct. 1793. 511 U.S. at com- to balance for courts “spillover,” majority’s critique, see ante ly, the oppo- point considerations peting (Brown, J., majority op.), ap- usually directions; this is what courts site beyond what the court has proach goes question they are faced with anytime do meaningless giv- previously “proposed” more than one consideration. informed review, that, three- absent en banc en O’Brien, 542 F.3d States Cf. acting as the court have been judge panels (1st Cir.2008) (observing 921, 924 A. v. by Harris. See LaShawn bound developed [Supreme] Court “the (D.C.Cir.1996) 1389, 1395 Barry, 87 F.3d and historical tests unique policy (en banc). to modi- and sometimes work complement, Accordingly, judg- I would vacate the reading of straightforward the most fy, of Burwell under 18 ment of conviction structure.”). and [statutory] language 924(c)(l)(B)(ii), respectfully and I U.S.C. balancing some majority does Indeed the dissent. for, Judge Kavanaugh points of its own 546, requiring proof of out, post see KAVANAUGH, Judge, Circuit with use, carry- respect to knowledge with joins, TATEL Judge whom Circuit sec- of a firearm under possession or ing, dissenting: (Brown, 924(c), ante at see tion majority itself does J., majority op.), The of mens rea embodies presumption solely to stat- presumption not limit the justice principles of law and deeply rooted in- criminalizing risk otherwise utes that emphasized has Supreme 924(c) only is nocent conduct—section of mens again. time and for a “crime of upon conviction triggered technicality, but rather rea is no mere I drug trafficking crime.” violence far-reaching” and implicates “fundamental when at its word Supreme take the issues, illustrates. as this case well Cf. by a penalty imposed that “the it stated States, Morissette consider- significant a statute has been 96 L.Ed. 288 72 S.Ct. statute determining whether the ation 924(c) 18, per- of Title a Under Section with dispensing construed as should be robbery carrying while who commits a son rea,” Staples, 511 U.S. at mandatory gun faces semi-automatic added). hardly It (emphasis A years. person minimum sentence of ignore that con- a better solution seems an robbery carrying while who commits a balancing to avoid in an effort sideration guilty of a more serious gun automatic is concerns, particularly competing against mandatory minimum faces a offense and Supreme Court has concluded when the Congress specifical- years. sentence of 30 un- “choosing” machinegun of a that the cаrrying an automatic ly determined 924(c)(l)(B)(ii) “moral involves section der during a gun rather than semi-automatic O’Brien, depravity,” years an extra robbery warrants designed protect that mens rea mandatory imprisonment.1 a more se- the risk of against defendant single repeatedly gun, "fires weapon, to as a machine also referred 1. An automatic that a majority opinion person year’s holds sentences of one imprisonment. Here, robbery carrying who committed a while punishment dramatically more gun genuinely who automatic than years severe that —20 extra of man —but thought gun datory semi-automatic—is prison time. Supreme Under the subject 30-year mandatory min- still to the precedents, heavy Court’s sanction majority opinion imum sentence. The thus strongly reinforces the presumption of years gives mandatory an extra 20 im- Moreover, mens rea. the Supreme Court criminal prisonment to defendant based already applied on a did not know. automatic gun. character of a In Staples fact v. United view, my extraordinary result (1994), 128 L.Ed.2d 608 the Court contravenes the traditional prohibited addressed a statute that posses long applied by mens rea unregistered sion of an gun automatic many Court. Like federal criminal stat imposed a maximum years’ sentence of 10 utes, this Section offense contains imprisonment. The statute was silent express no requirement. But about mens rea. The Court held that the that, the presumption .of mens rea means prove Government had to that the defen Congress plainly unless indicates other dant knew the automatic character of the wise, prove the Government must the de weapon. There is no good reason for a fendant’s mens rea for each element of the Here, too, different result in this case: offense. And the Court has re Government should have to cently unanimously ruled that the au defendant knew the automatic character of tomatic character of the is an element the 924(c) weapon. of the Section offense. See United , —U.S.-, States v. O’Brien majority opinion sidesteps pre- the (2010). 2169, Therefore, 176 L.Ed.2d 979 sumption of mens rea treating the auto- case, in this the Government should have matic character of the gun as if it’s a been that Burwell knew factor, sentencing not an element of the gun the was automatic in order to convict 924(c) O’Brien, Section offense. But in 924(c). him under Section Supreme the Court gun’s held that the Several automatic strongly factors character is an reinforce the element of the 924(c) presumption offense, of mens rea here. Section sentencing The Su- not a preme emphasized Court has factor. particu- 130 S.Ct. 2169. The O’Brien deci- importance lar of the sion presumption when matters here Supreme because the penalties high are characterization the Court has repeatedly stated that pre- —a Court applied to statutory maximum sumption of mens applies rea to elements is, pull trigger. converted, of the trigger That once weapon may its is be either internal depressed, weapon automatically or, will cases, con- modification simply by some tinue to trigger fire until its is released or the tear, machinegun.... wear and into a Such a ammunition Staples is exhausted.” v. United gun may give externally no visible indication States, 602 n. fully that it is automatic.” Id. at (1994). 128 L.Ed.2d 608 A semi-automatic Supreme S.Ct. 1793. The Court has stated contrast, weapon, by "requires no manual circumstances, thereforе, that in certain manipulation by operator place another might "genuinely reasonably” individual round in the chamber after each round is possesses believe that he "a conventional only fired” but pull "fires one shot each weapon semi-automatic” when in fact the trigger.” of the weapons Id. The two kinds of (citation weapon fully automatic. omit-

may appear similar if not identical. externally ted). Moreover, "virtually any semiautomatic good offense, sentencing 173 L.Ed.2d 853 With not to albeit of the illogical It would be in the ex- Staples, 511 U.S. reason. factors. See case); (element apply presumption offense of mens treme an element of the offense that rea to Dean v. United (sen- (2009) would, pun- the defendant’s say, 173 L.Ed.2d increase case). Because the auto- to a term of 2 prison factor ishment from no time tencing is an element gun years prison, apply pre- but not to matic character 924(c)offense, presumption of mens rea to an element of the sumption the Section case. applies aggravate that would the defen- of mens rea offense punishment and increase the dant’s crime alternatively con- majority opinion years. years from 10 to 30 As Professor of mens rea presumption that the cludes stated, ap- such an crisply LaFave has offense, elements of applies to some “unsound, and has no proach would be ma- particular, In not to others. but place system in a rational of substantive presumption jority opinion states Wayne LaFave, criminal law.” R. Crimi- necessary only when applies of mens rea (5th ed.2010).2 nal Law criminalizing apparently innocent to avoid is, the conduct would conduct—that when view, my majority opinion seri- if facts were as the defen- innocent ously proper- mistaken because does But the dant believed. ly account for the twin lines of of mens presumption limited the has never precedent that dictate the result in that fashion. The ap- here: The of mens rea applies to each element of offense, to each element of the plies applies both offense. The the automatic character of the is an criminalizing ap- necessary to avoid when of the Section offense. element (when conduct the de- parently innocent Twenty years mandatory impris- extra innocent if the facts were fendant would be respect- I hangs onment the balance. believed) and nec- as the defendant when fully emphatically but dissent. convicting the defendant of

essary to avoid I less apparently a serious offense for more (that is, conduct when the serious criminal liability traditionally requires Criminal serious would receive less defendant mind, guilty re- guilty both a act and a if the facts were as the criminal sanction actus reus and mens rea. ferred to as believed). defendant sepa- This case concerns mens rea. We requirements rately analyze the mens rea trying cabin the to each element of only when of a criminal statute for applies mens rea so that Bailey, States v. criminalizing apparent- the offense. See United necessary to avoid 394, 406, 624, conduct, majority opinion U.S. ly innocent (“Clear (1980) analysis in re- argument L.Ed.2d 575 resurrects the Government’s question of the kind of Flores-Figueroa quires the recent required to establish the com- culpability But the Government’s sub- States case. separately of an offense be faced zero votes the Su- mission garnered mission 646, to each material element of respect 129 S.Ct. with preme Court. See 556 U.S. clear, relying. Maj. Op. which I am the same result “lever” on 2. To be I would reach Rather, simply Flores-Figueroa con- Flores-Figueroa on in this case even without approach opinion reinforces the indicated majority is therefore firms and the books. The precedents. long Flores-Figueroa line of wrong say is the crime.”) Code) Model Penal (quoting Congress might make it a crime to operate omitted).3 (brackets a car with emissions above a certain limit. liability, Under strict a defendant would be is im- An element of an offense said to if guilty even his “vehicle’s emissions lev- liability require if it does not pose strict els, him, wholly unbeknownst began to (i.e., any proof of the defendant’s mens rea legal exceed regular inspec- limits between state) Staples for that element. mental Cf. tion dates.” Id. at 114 S.Ct. 1793. States, v. United 511 U.S. 607 n. (1994). liability 128 L.Ed.2d 608 Strict in criminal S.Ct. law is harsh liability deeply Strict means that the defendant’s serious tension with rooted ignorance principles justice or mistake of fact does not re- responsibility. O’Mara, liability. lieve the of criminal See United States v. 963 F.2d (9th Cir.1992) example, (Kozinski, J., For consider a statute that crimi- con- possession result, nalizes property. curring). liability stolen Un- As a strict liability, a extremely der strict defendant would be disfavored the criminal laws guilty even if he genuinely did not know of the United One States. commentator property possessed objection that the he described the liability was stolen to strict (or all). criminal possessed that he individual punishment it at Or consid- , er a words that have been repeated: statute that criminalizes often fishing prohibited liability, areas. Under strict summarily consensus can be stated: defendant would guilty gen- even if she punish conduct without reference to uinely did not realize that fishing she was the actor’s state of mind is both ineffica- prohibited in a area. Or consider an ex- unjust. cious and It is inefficacious be- ample gave in Staples. cause conduct unaccompanied by an 3. An element of proof the offense is a "fact neces knowingly defendant acted sary also, to constitute conviction.”); the crime.” support sufficient to Almendarez- see States, 224, 240, Torres v. United e.g., Carter v. United (1998) (citation 269-70, L.Ed.2d 350 147 L.Ed.2d 203 omitted). "Characteristics (2000) (in of the offense it determining what level of mens traditionally self are treated as elements....” purpose knowledge rea—whether ap- —to - O’Brien, -, United States v. ply in a case where the defendant's conduct 176 L.Ed.2d 979 would be innocent if the facts were he The elements of the offense are often distilled believed, "presumption in favor scien- categories: into three the defendant's con requires ter only court to read into a statute duct, circumstances, the attendant and the necessary that mens rea separate which is consequences. results or See Model wrongful conduct from otherwise innocent Penal 1.13(9) (Official Draft & Revised Com conduct”) (internal omitted); Code quotation marks 1985); Wayne ments R. States, 600, 619, LaFave, Staples v. United Criminal Law 511 U.S. (5th ed.2010). 8-12 1793, (1994) 114 S.Ct. 128 L.Ed.2d 608 (knowledge); Things, 'N' Posters Ltd. v. United This case concerns presump- whether the 513, 523-24, 1747, 511 U.S. 114 S.Ct. applies. tion of mens rea presumption If the (1994) (knowledge); L.Ed.2d 539 applies, subsidiary question of mens rea Co., Gypsum States v. U.S. required. what level 438 U.S. of mens rea is When rea, (1978) (knowl- 98 S.Ct. 57 L.Ed.2d 854 specify does not a mens courts edge). apply presumption gener- mens rea and Therefore, ally purpose state that if the knowledge either of mens rea statute, resрect applies suffices with to the to this elements of the Government should conduct, prove offense: defendant’s the attend- the defendant at circumstances, consequences ant gun. and the least knew the automatic character of the Bailey, Staples, crime. See 444 U.S. at See 511 U.S. at 114 S.Ct. 1793 (‘TT]he S.Ct. 624 generally (similarly cases have requiring knowledge held of automatic that, offenses, except in narrow classes of gun). character of 924(c) scenario, making it crim- awareness of the factors offense. Under not mark the actor as one who Government wouldn’t have to inal does 924(c) subjected punishment to be the defendant a Section case needs even a gun to deter him or others from be- knew he had less knew order —much future, similarly in the nor does was an automatic—in order to having convict 924(c) socially dangerous him out as a him of this Section offense. single incapacitated who needs to be individual Supreme But the interprets stat unjust or reformed. It is because the light utes in of traditional canons of con of a subjected stigma actor is struction. To take two well-known exam being moral- criminal conviction without ples, Supreme long Court has applied a blameworthy. Consequently, on ly ei- presumption against extraterritoriality and preventive theory or a retributive ther See, presumption against retroactivity. criminal punishment, of criminal e.g., Morrison v. National Australia Bank in the absence inappropriate sanction is —Ltd., U.S. -, 130 S.Ct. 2877- mens rea. (2010) (Scalia, J., 177 L.Ed.2d 535 for Packer, L. Mens Rea and the Court) Herbert (extraterritoriality); Landgraf Sup.Ct. Court, 107, 109. Products, v. USI Film Rev. 265- (1994) 68, 114 S.Ct. 128 L.Ed.2d 229 question confront The fundamental we 286-88, (retroactivity); id. at interpret here is how to federal criminal (Scalia, J., concurring judgment) that are silent about mens rea. statutes (retroactivity). statutes, many federal criminal Sec- Like require expressly tion does not Similarly, the Supreme long Court has proof of the defendant’s mens rea for this applied presumption of mens rea for particular, the statute does offense. See, criminal statutes. e.g., Staples, 511 expressly require proof that the defen- 605-06, (Thomas, J., S.Ct. 1793 dant, weapon automatic in knew the Court). for the Like other traditional can- for the defendant to be convicted of order ons, of mens rea consti- weapon the automatic offense Section sturdy background tutes principle 924(c). against Congress legislates which against which courts interpret statutes.4 ordinary approach statutory in terpretation requires that we adhere to the applied by of mens rea See, e.g., text of the statute. Milner v. on a Court stands bedrock — U.S. -, Dep’t Navy, legal historical foundation. The American (2011); 179 L.Ed.2d 268 Central tradition, well English as the common- Denver, Bank N.A. v. First Interstate built, law tradition-'on which it was Denver, N.A., 164, 114 Bank long required proof of the defendant’s 1439, 128 L.Ed.2d 119 At pre-condition imposing mens rea as a blush, therefore, might one think liability. first criminal The “existence of a of, courts should hold that there is strict lia mens rea is the rule rather than the to, bility exception principles Anglo- whenever a statute is silent about criminal jurisprudence.” mens rea—and thus that there is strict American Id. at (citation omitted); 114 liability for all the elements of the Section S.Ct. 1793 see congressional practice interpreting 4. the absence of di- calls for such statutes in '‘[I]n clear contrary, light require- rection to the textualists read mens of common law mental state unqualified Manning, Absurdity requirements John F. The into otherwise ments.” Doctrine, (2003). judicial criminal statutes because established 116 2466 Harv. L.Rev. 532 “converts,” only tached Bishop, verb and not

1 Commentaries Joel Prentiss (2d 1858)(“the § 227 ed. to the fact that the property belonged the Criminal Law Government). (there, wrongful an offence is the in someone else essence of tent, exist”); it without which cannot argued The Government federal *21 Blackstone, William Commentaries literally criminal statutes are to be read (“to (1769) against constitute a crime hu and that Morissette was guilty therefore be, first, laws, man there must vicious if truly thought even he casings will”); 3 Edward Coke, Institutes were abandoned. When a statute does not England (London, E. & R. Laws of explicitly contain a mens rea requirement, 1797) (1644) Brooke non {“actus there is facit none—or so the Government ar- reum, ”; is, mens sit rea an act nisi gued. person guilty does not make a unless the The Morissette Court held otherwise: guilty); mind is Bacon, Francis The Ele “adoption Such of the reasoning literal ... England ments Common Lawes of crimes, would sweep out of all federal ex- 1630) (1596) (“All (London, I. More crimes cept expressly preserved, when the ancient have conception ‍‌‌‌​‌​​‌‌​​‌‌‌‌‌‌​​‌‌‌‌‌‌​‌​​​‌‌​‌‌​​​‌‌‌​​​​‌​‌‍corrupt their int culpable of a state of mind”— ent”).5 a result that would be “inconsistent with Court added to that his- our philosophy of criminal law.” 342 U.S. torical foundation when decided the The Court invoked landmark background presumption case of Morissette v. United to conclude that the term “knowingly” 96 L.Ed. also required proof that the defendant Morissette had taken what he knew the property belonged to thought someone were abandoned casings bomb else. from uninhabited land in rural Michigan. casings

Turned out that the govern- were Justice Jackson authored the Court’s property. ment charged Government opinion in Morissette. Justice Jackson (that illegally converting Morissette with “intimately course familiar with the is, of) taking and disposing government corruption process of the criminal in a property though even thought he had society.” Packer, totalitarian Mens Rea casings were abandoned. The relevant Court, Sup.Ct. and the Rev. provided: embezzles, statute “Whoever Morissette, 119. And Justice Jackson steals, purloins, or knowingly converts to forcefully described the critical link be- his use or the use of another ... liberty tween human and mens rea re- record, voucher, money, or thing of value quirements. explained He that mens rea of the punished by United States” shall be in criminal law “is as persis- universal and or imprisonment. fine 18 U.S.C. systems tent mature of law as belief in (1952); Morissette, see 342 U.S. at 248 n. freedom of the human will and a conse- 2, 72 S.Ct. 240. “knowingly” The word quent ability duty of the normal indi- position its suggested isolated that it at- vidual to good choose between and evil.” law, 192, 199-204, Traditionally, knowledge op- facts, posed (1991) knowledge was not (requiring L.Ed.2d 617 Government required. given But the modem trend knowledge to- defendant’s of law to obtain conviction); ward criminalization of actions are not criminal tax States (not se,” Moore, inherently (D.C.Cir.2010) evil "malum in to use the 612 F.3d 703-04 L, phrase), (criminal Latin (Kavanaugh, concurring) modern statutes sometimes statutes require proof also penalizing require of the defendant’s knowl- proof "willful” violations States, edge law). of the law. v. knowledge See Cheek United of defendant’s

533 14, 250, (presumption at 254 n. 72 S.Ct. 240. The con- S.Ct. at 342 U.S. indeed, by as may “is almost instinctive be overridden “clear command” cept, ‘But I exculpatory Congress).7 child’s' familiar from ” 251, 72 to.’ Id. at S.Ct. 240. mean didn’t II might thought have Mor- Although some “profoundly insignificant,” issette’s case law since The Court’s case recognized the “fundamen- Justice Jackson Morissette illustrates force mens rea issues at far-reaching” tal and presumption breadth of the of mens rea. 247, 72 240. Justice stake. Id. at applied has to presumption Court sheep’s clothing: saw the wolf Jackson silent statutes are about mens rea. by asks us a feat of “The Government applied pre The Court has likewise radically change to construction sumption to statutes that contain a mens jus- in the scales of weights and balances requirement for one element but are purpose and obvious effect of tice. ambiguous silent or about mens rea for away requirement of a doing with the ' other elements. prosecution’s intent is to ease the guilty precedents A detailed review of those conviction, strip the defendant path majority demonstrates that the opinion benefit as he derived at common of such jumped case rails. purpose, innocence of evil and to law from the freedom heretofore al- circumscribe Morissette, Following the Supreme 263, juries.” 240.6 lowed again the importance stressed of mens rea in the traditional United States Under Morissette, Co., 422, v. expounded Gypsum mens rea as U.S. 438 U.S. 98 S.Ct. (1978). 2864, a mens rea 57 L.Ed.2d 854 The case presume courts liability criminal for each element of the offense unless Con- concerned under indicates otherwise. See id. Sherman Antitrust Act. The text of the gress plainly most, (1943) (Jackson, J., Court) ("But spot Jackson could for the 6. Better than Justice clothing. Youngstown sheep’s things wolves in to differ is not limited to freedom Cf. Sawyer, & Tube Co. v. 343 U.S. Sheet do not matter much. That would be a mere (Jack (1952) 72 S.Ct. 96 L.Ed. 1153 freedom.”). shadow of son, J., (“Presidential concurring) claim to a power preclusive at once so conclusive and principle undergirding 7. The caution, must be for what is scrutinized of mens rea is so fundamental the Su- equilibrium is the established our stake that, preme held in some circum- Court has system.”); constitutional Korematsu v. United stances, imposing liability criminal without 214, 246, 65 S.Ct. 323 U.S. proof of mens rea is unconstitutional. See J., (Jackson, (1944) dissenting) L.Ed. 194 225, 228-30, California, Lambert v. (”[O]nce judicial opinion rationalizes such (1957); 2 L.Ed.2d 228 see also 78 S.Ct. an order to show that it conforms to the Video, Inc., United States X-Citement Constitution, rather the Consti rationalizes 64, 78, L.Ed.2d tution to show that the Constitution sanctions (1994) (noting problems that constitutional order, for all time has such liability). have can ensue from strict Some principle of racial discrimina validated asserted that when the Constitution was rati- procedure transplant tion in criminal and of "part adopted, fied and the Sixth Amendment ing principle American citizens. The then lies guaranteed criminal defen- of what was weapon ready like a loaded for the about right jury dants was the to have a decide bring any authority can forward hand of they morally blameworthy.” need.”); whether were plausible urgent claim of an West Barnette, Right Hopkins, Trial Ann Mens Rea and the Virginia State Board Education v. by Jury, 76 Calif. L.Rev. 87 L.Ed. prisoner escaped custody. mens had from The supplied express Act no Sherman any express statute did not contain mens But the Court relied requirement. rea requirement, raising question: “unwilling that it and said was Morissette prisoner escape Could be convicted of mandating Act as to construe the Sherman genuinely mistakenly even if he but strict-liability criminal of- regime permission thought he had to leave—on 436, at 98 S.Ct. 2864. fenses.” Id. detail, example? for em- work Court Morissette, Gyp- the Court U.S. As “element-by-element analy- barked on an history presumption grounded sum sis,” “dissecting” “assign- the statute and “the recounted and tradition. Court ing culpability a level of to each element.” that the existence of a proposition familiar 406, Reiterating at 624. Id. S.Ct. of, than the rea is the rule rather mens mean, the omission of mens rea “does not to, Anglo- exception principles course,” the statute “defines jurisprudence.” American criminal liability’ punishment ‘strict crime for which (internal quotation marks brackets imposed proof any can be without omitted). Invoking background prin- all,” at required proof the Court explained that it had “on a ciple, the Court knowledge proof escapee that “an knew — of occasions read a state-of-mind number leaving his actions would result his an even component into offense when physical permission.” confinement without statutory did not in terms so definition Id. at 406 n. 100 S.Ct. 624. In (em- 437, provide.” Id. 98 S.Ct. 2864 words, genuinely other a defendant who added). “Certainly far more than phasis mistakenly thought permission but he had simple appropriate omission of the to leave could not be convicted under the phrase statutory from the definition is statute. necessary justify dispensing to with an In ‘N’ Things, Posters Ltd. v. United 438, requirement.” intent Id. at 98 S.Ct. States, 513, 1747, U.S. Indeed, the read Morissette (1994), provided: L.Ed.2d 539 the statute establishing, regard “as at least with “It is unlawful for ... person to make having origin crimes their in the common use of the services of the Postal Service or law, interpretative presumption conveyance other part interstate of a Id, 437, required.” mens rea is 98 S.Ct. scheme to drug paraphernalia....” sell stated, moreover, that 2864.8 The Court 857(a) (1988); U.S.C. see 511 U.S. at strengthened by 516, 114 1747. The statute was silent severity of the sanctions under the Sher- question as mens rea. So the arose: years’ impris- man Act—a maximum of 3 Did the prove Government have to that the 18, 442 n. See id. at 98 S.Ct. onment. possessed knew materials— pipe, example drug a scale and —were Bailey, United States v. paraphernalia likely illegal to be used (1980), 100 S.Ct. 62 L.Ed.2d 575 drugs? yes. “Certainly The Court said applied to a simple statute far more than the omission of the punishing prison escape. The re- appropriate phrase statutory law from the def quired the necessary justify dispensing Government to that the inition is 8. The Court has since made clear 268 n. 147 L.Ed.2d 203 States, (2000); applies Staples of mens rea v. United 605-06, statutes, just all federal criminal those 128 L.Ed.2d 608 (1994); (Gins- defining crimes in the id. at 620 n. 114 S.Ct. 1793 with roots common J., burg, concurring judgment). law. See Carter v. United

535 616-19, 511 at requirement.” intent U.S. at of mens rea. See 114 with id. S.Ct. (citation omitted). 522, 1793. As Ap- S.Ct. 1747 for what level of mens rea 114 rea, required, “knowledge” “the plying facts that make his conduct “requires held that the statute fit definition of offense” would suffice “to to that the defendant establish mens prove Government 3, rea.” Id. at n. 114 608 S.Ct. 1793. knowingly made use of an interstate con- Therefore, conviction, “to obtain the Gov- part of a scheme to sell items veyance required ernment should have been likely he knew to be used were with that” prove the defendant “knew of 524, drugs.” at 114 illegal Id. S.Ct. 1747 features of his added). brought AR-15 it with- (emphases is, in the scope of the Act”—that knew that The Court’s decision that same Term in 619, was an automatic. Id. at States, 600, Staples United 511 U.S. S.Ct. 1793. 1793, (1994), par- S.Ct. 128 L.Ed.2d 608 States, In 255, Carter v. United ticularly The instructive here. statute at 2159, (2000), 120 S.Ct. 147 L.Ed.2d 203 Staples only: “It provided issue shall be in question punished law taking bank prop- any for ... person unlawful to receive or erty by either force violence or by a firearm is not possess registered which intimidation. See at id. 120 S.Ct. Registra- to him the National Firearms ” 2159. The relevant subsection the stat- tion and Transfer Record.... U.S.C. ute had no express requirement. mens reа (1994); see U.S. at course, Of imagine it’s hard to unknowing- statutory 1793. S.Ct. definition of ly taking property by force and violence or included weapons, “firearm” automatic but so, intimidation. But even the Court weapons. not semiautomatic See 511 U.S. still proof the defendant’s 602-04, 615, at The stat- knowledge because the statute “should not contained express ute no mens rea re- interpreted apply to the hypothetical quirement. person who engages forceful taking of question Staples very similar to — money (innocent, while sleepwalking if in our question ease—was whether the activity).” aberrant Id. at 120 S.Ct. Government had to defen- knew the gun dant was an automatic. The long precedents, its line of mens rea yes. Court said The Court cited “the the Court applied background rule of the common law favor- just mens rea not to statutes that are ing mens rea” and noted the rule (such silent about just as those applies statutory criminal offenses. Id. discussed), but also to statutes that contain 605-06, 619, 1793. According a mens rea for one element Court, congres- “some indication of are ambiguous but silent or about mens sional intent” to with dispense mens rea is rea for other elements. necessary before a court will find strict liability. Id. at 114 S.Ct. In Liparota 1793. The v. United stated: suggest (1985), “Silence does not 85 L.Ed.2d 434 dispensed example, mens rea” the Court considered a stat- weapon for the automatic element. providing ute that “whoever knowingly uses, transfers, point- alters, 1793. The Court also acquires, or pos- ed out involved—a coupons sentence statu- sesses or authorization cards in tory maximum years’ imprison- of 10 manner chapter not authorized supported requiring proof ment —further regulations” or the be fined or im- shall 2024(b)(1) (1982); committing a listed person who—while 7 U.S.C. prisoned. transfers, predicate “knowingly n. 105 S.Ct. 2084. at 420 see 471 U.S. crime— uses, without authori- possesses, or lawful how far the term The Court to decide had another ty, a of identification of means the down sentence. “knowingly” traveled 1028A; see 129 S.Ct. person.” 18 U.S.C. that his need to know the defendant Did The that at Court decided 1888-89. unauthorized? stamps food was use of just not to the fact of “knowingly” applied statutory text that The Court stated possession use of the the defendant’s or and that either guidance” “little provided card the fact fake but also to identification ordinary accord interpretation “would identity on the was “of an- that the card 424, 105 S.Ct. 2084. usage.” 471 at U.S. person.” The its de- other Court reached rea, the of mens presumption Based on the part in by relying presump- cision on the “Absent indication concluded: rea, which in meant tion of mens that case language contrary legis in the or purpose of statutory interpre- a rule strong default statute, history we believe lative is an ex- applies tation that when there 2024(b)(1) showing that requires that to one press mens rea as element his conduct to be un the defendant knew in the courts offense: “The manner which regulations.” or Id authorized statute ful- interpret criminal ordinarily statutes 425, 105 at 2084. S.Ct. ordinary English ly consistent with Video, v. X-Citement In United States say ordinarily usage. That is to courts Inc., 64, 115 U.S. in a that phrase read criminal statute (1994), the Court followed L.Ed.2d the elements of a crime with introduces there path. interpreted similar The Court as that word ‘knowingly’ applying the word child targeting a statute distribution of to each 129 S.Ct. at 1891. The element.” had to decide pornography. The Court explained Court further its decision “knowing- statutory mens whether precedents, as was consistent with such ly’ just transport to the of a apрlied not Video, Liparota that had and X-Citement photo or but also to the pornographic video rea to applied of mens girl boy age ap- fact that a under or statutory similar schemes. See id. peared photo. in or See id. the video conclusion, justifying its the Court asked 68, 115 S.Ct. 464. As the Court acknowl- we rhetorically: apply “Would statute grammatical natural edged, “most ‘knowingly pos- it unlawful makes reading” suggested that the the statute person pas- sess to a drugs’ who steals apply mens rea did not senger’s bag that the bag knowing without girl boy fact that a under 18 shown or was Id at drugs inside?” But photo. in the video or the Court Justice Alito’s concurrence in Flores- reading rejected plain-text as incon- Figueroa concisely pre- summarized sistent with the mens rea. sumption applied by required proof that the Court instead Court, and added boy girl defendant knew that a or under 18 and could be was course conclusive depicted. See id. at by context certain circum- overcome interpreting “In a criminal stat- stances: us, The Court’s recent decision in Flores- one I think it is ute such as the before Figueroa general presumption fair to with a begin (2009), L.Ed.2d to all specified applies offense, it must be approach. adhered to much the same the elements of an but there Flores-Figueroa applied recognized are instances statute issue may that pre- which well 1886. And whether the statute is context rebut com- I sumption rea, .... therefore concur only silent to mens pletely par- join opinion judgment and silent, tially presumption applies may adopt as it be read to except insofar each element of the offense. Recall that rule of that can inflexible construction Things, ‘N’ example, Posters rarely be overcome contextual features simply: statute said “It is unlawful for contrary reading.” Id. at pointing to a any person ... to make use of the ser- J., (Alito, in part and concurring 1895-96 vices of the Service Postal or other inter- judgment).9 concurring conveyance part state of a scheme to

The Court’s case law demon- drug 21 paraphernalia....” sell U.S.C. applied strates that the Court has the 857(a) (1988); 516, see 511 U.S. at 114 presumption consistently, mens rea S.Ct. 1747. The statute contained no ex- forcefully, broadly. and The presumption press requirement. mens rea The Court applies to that silent as to statutes are held that presumption the of mens rea Morissette, 246, mens rea. U.S. See 342 applied offense, to each element of the 240; 422, Gypsum, 72 U.S. 438 U.S. S.Ct. saying “requires the statute the Govern- 2864; 394, Bailey, 444 100 98 S.Ct. U.S. ment to that the defendant know- 624; W 511 Things, S.Ct. Posters U.S. ingly of an convey- made use interstate 513, 1747; 114 511 Staples, S.Ct. U.S. part ance as of a scheme sell to items 600, 1793; Carter, 255, 114 U.S. S.Ct. 530 he likely that knew used were be with 120 The also presumption ap- S.Ct. 2159. illegal 524, 511 drugs.” U.S. at 114 S.Ct. plies that an explicit to statutes contain added). 1747 (emphases mens rea element requirement one far, up To sum the Supreme so or ambiguous but are silent about mens applied has established and a rule of statu- Morissette, rea for other elements. See tory interpretation for federal 246, 240; 72 crimes: A Liparota, S.Ct. 471 U.S. requirement 2084; applies of mens rea to each U.S. S.Ct. X-Citement Video, 464; U.S. element of the offense unless has Flores-Figueroa, plainly 129 S.Ct. otherwise.10 indicated Scalia, Thomas, joined by presumption historically Justice Justice of mens rea that 9. decision, agreed alongside also Court's but he have presumption. co-existed statutory said that text dictated the alone presumption gener- of mens rea does not result. He noted that the Court was “not ally apply public welfare offenses with mi- text,” stop at the content to statute's but also elements, penalties, jurisdictional-only nor relying background princi- on applied historically or to a few elements in a ples. Flores-Figueroa, 129 S.Ct. Video, liability strict See manner. X-Citement (Scalia, J., concurring part concurring 2-3, 513 U.S. at & 71-72 nn. 464. judgment). agreed Justice Scalia case, agree In this all the automatic significant presumption of mens rea has 924(c) weapon element in Section does not force, but he said that courts should be cau- categories. fall into of those “expand tious not to a mens rea carry light Public welfare offenses sanctions statutory carefully text has limited.” less) (usually "regulate six or months words, emphasized Id. In other Justice Scalia potentially injurious harmful or items.” Sta- Congress through statutory may text 607, 616-19, 1793; ples, 511 U.S. at 114 S.Ct. presumption choose to override the of mens see, Balint, e.g., United States v. U.S. course, rea. Of Section offense at (1922) (distribut- 42 S.Ct. 66 L.Ed. 604 rea, issue in our case silent about mens so ing drugs unregistered prescrip- without valid pertain that concern does not here. tion). jurisdictional-only they are if Elements case, jurisdiction applicable only seek the feder- Although to "confer there Feola, categorical qualifications al v. are a few to the courts.” United States U.S. Amendments, an the offense element of

III indictment, sub- charged “must far have established thusWe proven by the Gov- jury, mitted to a applies rea to each of mens beyond a doubt.” ernment reasonable use pre- To the offense. element of Jones, By correctly, must we of mens sumption contrast, sentencing not be factor need distinction: in mind a critical keep indictment, to a charged in the submitted applies to ele- of mens jury, beyond Government proved offense, sentencing not to but ments doubt. See reasonable id. factors. rea, As offense is a “fact An element of the long stated Al necessary crime.” constitute pre the offense triggers element of States, 523 v. United mendarez-Torres See, Staples rea. sumption e.g., of mens 1219, 140 L.Ed.2d States, 3, 600, & n. 511 U.S. 606-07 omitted). (1998) (citation “Character 350 619, 1793, L.Ed.2d 114 S.Ct. 128 608 traditionally are itself istics of offense (1994). contrast, By as the ” as United States treated elements.... States, Court indicated Dean v. United — 2169, O’Brien, -, 130 S.Ct. U.S. trigger a factor sentencing does not (2010). 2176, 176 979 L.Ed.2d 568, of mens 556 U.S. presumption rea. contrast, sentencing factor is a fact By a 1849, 173 (2009); 129 S.Ct. L.Ed.2d 785 see necessary (ex to define the crime O’Brien, that is not 2179, also 130 S.Ct. 2180 at typically sentencing is used but that describing a case about pressly Dean as punishment. factors”). to increase See Almen court “sentencing darez-Torres, 228, S.Ct. 523 U.S. 118 Dean, the Court resolved circuit traditionally factors in “Sentencing split arisen that had over whether characteristics of offender —such volve mens to sen- presumption applies of recidivism, cooperation with law en as factors. The Court concluded that tencing forcement, responsibility.” of acceptance does to sentenc- apply O’Brien, 130 at 2176. S.Ct. ing vigorously factors. Justice Stevens and lamented distinction recognized:

As the dissented of turns on the determination that a Court had drawn between elements “Much sentencing pre- for the fact is an element of an offense rather than offense and factors sumption “Although rea: manda- sentencing” factor. Jones v. United mens States, 227, 232, tory provisiоns 119 minimum are of sentencing 526 U.S. S.Ct. (1999); genesis any L.Ed.2d see also too to have common- McMil- recent 79, 84-86, Pennsylvania, pedigree, law there is no sensible reason lan v. (1986). differently for from treating 106 S.Ct. 91 L.Ed.2d 67 For them offense purposes Fifth example, under and Sixth elements felony-murder in a case. Dean v. United 676 n. L.Ed.2d 541 See 1849, 1855, typical States, example A is the federal sta S.Ct. property Video, affiliation of an (2009); tus or the federal 173 L.Ed.2d 785 X-Citement See, e.g., individual. id. at S.Ct. 1255 72 n. 513 U.S. at officer). (fact that victim assault is federal dissenting opinion says that When this The most well-known offense elements applies to of mens rea "each historically applied liability were strict offense, means to rec- element” of the it still age statutory are in a manner the victim’s ognize qualifications. those narrow traditional resulting felony rape from a case a death of mens rea. Sentencing provisions sure, of this To be as indicated Justice Ste- type substantially have the same effect on vens’s Dean, dissent in some Justices con- liberty aggravated defendant’s offense tinue to voice weighty arguments that the provisions.... The common-law tradition protections attached to elements of the requiring proof of mens rea to establish including Fifth and Sixth Amend- offense— criminal culpability should thus apply rights, ment as well as the presumption of equally to sentencing such factors.” 129 mens rea—should also attach to sentenc- J., (cita- (Stevens, S.Ct. at 1858 dissenting) ing factors. According Justices, to those omitted).11 tion there is little if difference in certain modern criminal statutes between the facts The distinction that the Court has drawn labeled as elements and the facts labeled between elements offense and sen as sentencing factors. And in the view of tencing factors derives in part from the Justices, those the Court has legis- allowed Court’s traditional view sentencing as a latures to too broadly deploy the “sentenc- flexible, open-ended more proceeding that ing factor” label and thereby evade the takes account of a wide variety of circumstances. protections, including the — presumption of Pepper Cf v. United . rea, that attach to elements of the -, O’Brien, offense. See (2011) 2181-83 L.Ed.2d 196 (“sentencing judges ex (Stevens, J., concurring); id. at 2183-84 ercise a wide discretion in types (Thomas, J., concurring in judgment); they may evidence consider when imposing Dean, 129 at (Stevens, S.Ct. sentence”) (internal J., 1857-60 quotation marks omit dissenting); v. ted); Harris United York, Williams 536 241, v. New 545, 572-83, 246, U.S. 1079, 122 (1949) 2406, S.Ct. 93 L.Ed. 1337 153 (“courts (2002) L.Ed.2d 524 (Thomas, J., in country this and in England dissent- practiced ing); Monge a policy California, under which a sentenc judge 737-41, ing could a exercise wide discretion 118 141 L.Ed.2d 615 in (1998) the sources and types (Scalia, J., of evidence dissenting); McMillan, used”). 93-94, 477 (Mar- U.S. at 106 S.Ct. 2411 Dean, Even before most appeals (10th courts of Cir.2003) ("Because F.3d 1206 recognized likewise that presumption the of the brandishing discharge provisions and of factors, rea apply mens does not sentencing 924(c) factors, elements, sentencing are not only but rather to elements of the offense. government the required was not to show that See, Dean, e.g., United States v. 517 F.3d knowingly Nava-Sotelo or intentionally dis (11th Cir.2008) (argument 1230 applying for charged weapon.”); his United States v. Wal "general presumption against liability strict ton, (7th Cir.2001) (“In 255 F.3d 444 "unpersuasive criminal statutes” is as there is short, Walton was not convicted of a strict a distinction between elements anof offense (in liability crime violation of X-Citement Vid sentencing enhancements for conduct ),eo but merely instead was subject to a strict during perpеtration of a violent criminal liability sentencing enhancement."), United act"), 1849; aff'd, 129 S.Ct. United States v. Lavender, (9th States v. 224 F.3d Vargas-Duran, (5th 356 F.3d Cir. Cir.2000) factors, however, ("Sentencing are 2004) ("Although there is a separate not criminal offenses as such are criminal statutes include an of element mental normally not carry their culpability, own liability and strict are crimes dis favored, requirements.”); the see also United of force' use Kwong-Wah, States v. Lam part § 2L1.2 a liability strict F.2d 16-level (D.C.Cir.1991) ("It that, sentencing part enhancement and seems not of a clear under liability statute.") (citation Guidelines, strict criminal the amended scienter not re omitted); Nava-Sotelo, United matter.”). States v. quired general as a In States v. 95-104, 2010 decision its

shall, J., dissenting); id. O’Brien, unanimously concluded the Court J., dissenting). (Stevens, character is an firearm’s automatic continuing argument about But 924(c) the Section offense as element of sentencing factors is adding protections by Congress intended written and —and because, I That’s not relevant here. — -, sentencing not factor. now, indisputably this case explain will 2169, 176 L.Ed.2d 979 offense, the which an element of concerns whether the question there concerned means that the in turn the fact ‍‌‌‌​‌​​‌‌​​‌‌‌‌‌‌​​‌‌‌‌‌‌​‌​​​‌‌​‌‌​​​‌‌‌​​​​‌​‌‍the Government had indisputably applies. mens jury beyond a weapon automatic to a doubt. See id. 2173-74.

reasonable the yes, The O’Brien Court said because IV weapon character of the is an automatic 924(c) reveals, the offense. The de- element of Section preceding discussion As nature of reasoned that ciding whether offense, weapon was a characteristic of turns on the follow- applies this case tra- “are characteristics the offense automatic character of ing question: Is the ditionally treated as Id. at elements.” weapon an element the Section addition, explained In the Court 924(c) offense, sentencing it a fac- or is minimum “drastic” increase in the tor? the firearm is automatic sentence when Determining particular fact is whether substantive “strongly suggests separate a sentencing offense or an element crime,” merely sentencing factor. in some can be difficult eases. factor Id. at 2177.14 The Court O’Brien thus case, however, question is not character of concluded that automatic difficult because is an element of the Section already it.13 offense.15 answered 2348, who, 924(c), person Jersey, a "dur- 530 U.S. 120 S.Ct. 12. Under Section (2000). ing any crime of The and in relation to violence L.Ed.2d ..., arguably drug apply a should in those cases trafficking crime uses or carries mens rea well, who, given presumption’s as historical in furtherance of firearm" —"or crime, quasi-constitutional possesses if not a firearm" —shall be foundation such imprisonment basis. I need not to a term of of not constitutional But cross "sentenced years.” bridge possessed "If the in this case because O'Brien said less than 5 firearm person Congress automatic charac- by” the a assault intended the "semiautomatic person gun a ter to be an element of the Section weapon, the shall be sentenced to of the offense, 924(c) imprisonment sentencing of not not a factor. term of less than possessed by” years.” But the firearm "[i]f machinegun,” person person a “the O’Brien, "is years before the Court unani- 14.Ten imprisonment be to a term of shall sentenced mously about reached the same conclusion a years.” less U.S.C. of not than 30 924(c). previous Cas- version of See Section 924(c)(l)(A)-(B). States, tillo v. United 530 U.S. (2000). Reasoning L.Ed.2d 94 say, pistol carrying, "the A fact is an of the for mens difference between element offense great, Congress carrying machinegun ... both purposes made it element if kind,” interesting question degree in con- offense. An the Castillo .Court —not "Congress presented presump- how cluded that intended firearm this case—is 924(c)(1) type-related applies words it to a fact that made used tion aggravated separate, sentencing an element of factor but that must treated as refer to crime,” sentencing merely a factor. Id. at Sixth not an element the offense Fifth and 126-27, 131, purposes. Apprendi v. New 120 S.Ct. Amendment See Because the automatic character of the firearm during the crime awas “sentenc- gun offense, is an element of factor,” ing and be- not an element of the offense. cause the States, of mens rea applies Harris United offense, to each element pre- 153 L.Ed.2d 524 (2002). sumption of applies here. We

therefore presume must that the Section Because the Supreme Court concluded requires offense the Government to that discharge of the firearm was a sen- prove that the gun his knew was tencing factor and not an element of the automatic. offense, the presumption of mens rea did apply Dean. The Dean Court there- fore determined that the Government need

V not prove that the defendant intended to discharge The majority opinion firearm. avoids the pre- sumption of treating the auto- By contrast, as the Supreme Court held matic character gun if it’s a O’Brien, the automatic character of the sentencing factor rather than an element gun is an element of the offense. As a of the offense. apparent That is from the result, the presumption of mens rea ap- majority opinion’s repeated invocation of plies in this case. the Supreme Court’s decision in Dean v. To rely on Dean here —as the majority a sentencing factor case. opinion does relentlessly to miss the —is 173 L.Ed.2d boat on the crucial distinction between sentencing factors and elements of the of- fense for purposes of the presumption of problem fundamental major for the mens rea. ity opinion is that the decision in Dean a sentencing

addressed namely, For reason, the same majority opin- factor— discharge of the firearm —and not an ele ion’s reliance on this Court’s 1992 decision ment of the offense. Supreme Court Harris, United States v. 959 F.2d 246 itself has referred to Dean as a case about (D.C.Cir.1992), is misplaced. Harris said “sentencing factors.” United States v. that the automatic character aof — O’Brien, -, enhancement”; “sentence therefore, the 2179, 2180, 176 L.Ed.2d 979 In the Court not require proof did that the defen- predecessor Dean, case to Supreme the dant gun knew the was automatic. Id. at Court likewise held that discharge of the 259. In Brown, United v. States more- majority 15. The opinion notes that proof O’Brien court that of the defendant's mens rea— is, did not address requirement. the mens proof that the defendant knew the Maj. Op. See question The present- 505-06. automatic weapon character of the be —would Supreme ed to the if Court in the gun O’Brien automatic was character of the were the an element whether of the gun automatic of the offense. See character United O’Brien, (1st States v. proved had be F.3d jury a 923 beyond a Cir. reason- 2008), aff'd, 130 S.Ct. able 2169. depended doubt. The answer on wheth- er it 924(c) was an element of the Section (i) What matters purposes our are: the The offense. said Court that was it an ele- Supreme Court in squarely O'Brien held ment of the offense. Because the mens rea the automatic weapon character of the is an presented, issue was not quite the Court rea- offense, (ii) of the element Supreme and the sonably did sponte not out reach to sua ad- Court repeatedly held that the presump- event, dress mens rea. In the Govern- applies tion of mens rea to elements of the ment (correctly) had conceded in the district offense. Moreover, concluding that Harris as a in the Gov- over, described specifically we government “The ernment not need to that the case: did sentencing factor Hams, States v. on the automatic character of also relies defendant knew 924(c)(1) part analyzed Harris gun, where we the reasoned that “there does minimum 30-year when that imposes significant not seem to be difference gun. Assuming a machine used is weapon a defendant who com- between factor, sentencing .a we created using pistol mits a and one drug crime didn’t need government found crime a ma- using who commits the same precise knew the prove that the defendant different, gun; chine the act is but ” 449 weapon he nature of the used.... equally blameworthy.” mental state is (citations (D.C.Cir.2006) 154, 157-58 F.3d O’Brien, Supreme F.2d at But in omitted). that line of reason- directly rejected dramatically ing, stating that the enhanced made in Harris determination 924(c) for carrying sanctions in Section automatic in Brown—that reiterated weapon reflect “the moral de- automatic gun sentencing is a fac character weapon.” pravity choosing undermined the Su tor—has been 2178. O’Brien thus rejected not O'Brien. preme decision Court’s factor label that Har- only sentencing O’Brien, repeat, Supreme used, ris Har- reasoning but also that the automatic charac expressly ruled ris well, For that reason as employed. ter an element of Section gun Harris undermined has been the Su- 924(c) offense, not a factor. sentencing preme question Court on the whether the See 2169. The Court’s applies of mens rea decision O’Brien thus knocked out the gun automatic character of the a Section underpinnings of fundamental this Court’s in Harris.16 case.17 decision wrongly banc to be Harris Court described the automatic Court believes decided See, gun sentencing important. e.g., character of the factor exceptionally Fields certainly Johnson, anything never said like: “The v. Bernice 459 F.3d Eddie Office of gun automatic character is an element (D.C.Cir.2006) (en banc) (overruling the offense but of mens Clerk, Browning Representa v. U.S. House of apply.” if rea nonetheless does And even tives, (D.C.Cir.1986)); 789 F.2d 923 Florida (which portion the relevant of Harris had said Bentsen, Society 94 F.3d Audubon didn't) that the automatic character of banc) (D.C.Cir.1996) (en City (overruling an element of the but that the offense Angeles Highway Safety Los v. National Traffic presumption of mens rea did not nonetheless Administration, (D.C.Cir.1990)); 912 F.2d analysis longer apply, such an itself no Palmer, (D.C.Cir. King v. 950 F.2d good in the wake of law later 1991) (en banc) (overruling v. Kenn McKenzie Staples, 'N' Court cases such as Posters iclcell, (D.C.Cir.1989)); 875 F.2d 330 Save Our Video, Flores-Figuer- Things, and X-Citement Mountains, Hodel, Inc. v. Cumberland presumption oa that held the of mens have (en (D.C.Cir.1988) banc) F.2d applies to each element of the offense. Airlines, Inc., (overruling Laffey v. Northwest (D.C.Cir.1984)); 746 F.2d 4 Church Scien analysis 17. Even if Harris’s on the Section of IRS, tology v. 792 F.2d 156- rea issue had under- not been of California (D.C.Cir.1986) (en banc) (overruling Neufeld by Supreme precedents, mined later Court IRS, (D.C.Cir.1981)); F.2d 661 see three-judge panel Hams was a decision. The v. also, Justice, e.g., Dep’t Chung v. 333 F.3d authority en banc Court has the under of —both * (D.C.Cir.2003) (overruling 278 n. Appellate general the Rule 35 of Rules Grif Commission, U.S. Parole F.3d 1081 principles of horizontal stare decisis—to over- fin (Irons footnote). (D.C.Cir.1999)) three-judge panel the en rule decisions n (internal omitted). VI quotation marks majority opinion here trying is thus to opinion alternatively majority as- confine the presumption of mens rea in a mens^ presumption the of serts way Supreme the Court has never only some applies to elements of- done. namely, only to those elements fense— Maj. See 505- Op. are “essential.” Moreover, it would be incoherent to lim- majority opinion’s ap- 07. Under it the of presumption only mens rea to only proach, presumption applies when necessary those cases it’s where to avoid necessary of mens rea is to avoid proof criminalizing thought what defendant criminalizing apparently innocent con- was innocent key trigger conduct. The for is, when the defendant would duct—that presumption of mens rea is whether innocent if the facts were as the defen- the fact at issue is an element of the majority opin- dant believed. Under the If fact offense. is an element of the theory, presumption ap- ion’s does not factor, a sentencing offense and not proof necessary when of mens rea is ply presumption applies. And presump- of a convicting avoid more applies necessary tion both when to avoid for less apparently serious offense serious criminalizing apparently innocent conduct is, criminal conduct—that when the defen- necessary when convicting avoid dant would receive less serious criminal a more apparently serious offense for less if sanction the facts were as he believed. serious criminal conduct. As Professor LaFave explained, has rules of mens rea majority opinion But where does both apply to a defendant iswho unaware presumption find that limitation on the facts that make his conduct criminal mens rea? The Court has never to a defendant who is “unaware of the such a employing drawn distinction when magnitude wrong he is doing.” of mens rea. (5th Wayne R. Law LaFave, Criminal sure, To be the Supreme Court has said ed.2010). The idea that “the mistake impor- of mens rea is may the defendant be disregarded because may tant when the defendant otherwise actually of the fact that he intended to do any wrongdoing. have been innocent of legal wrong” some or moral is—in Profes- See, e.g., Staples v. “unsound, sor LaFave’s and has words— 128 L.Ed.2d 608 place no system a rational of substantive (Court (1994) has taken “particular care” 304-05; criminal law.” Id. at see also criminalizing avoid apparently innocent Williams, Glanville Criminal Law: The conduct). But the Court never cab- (2d ed.1961). Part 185-99 General ined the presumption of mens rea to those Taking circumstances. As this said in a step back: What sense would United States v. Villanueva-Sotelo —a de- it make to have a of mens rea approved cision for element offense increas- Flores-Figueroa v. United States —the Su- es the defendant’s minimum mandatory preme “particularly ap- Court has found it no punishment prison from time to a term propriate require- years’ to extend a imprisonment, example, mens rea for but mеnt when failure do so would result in not to have a presumption criminalizing a statute nonculpable aggravates con- an element of the offense that duct,” but “the Court has never held that the offense and the defendant’s elevates avoiding only mandatory punish- such a result is the reason to defendant’s minimum (D.C.Cir.2008) so.” do from years years? F.3d ment to 30 The retribution, of criminal law—whether it be make no sense it would answer is that deterrence, all, by of comparable degree a rehabilitation —is served all: “After (1) a person punishing convicting aggravated him of an offense inequity exists who, liability application the strict punishment. but for and a more severe imposing element, have received zero to the would recent The Court’s decision (the protected case punishment ‘innocent’ Flores-Figueroa pre- underscores that the Video) punishing (2) and X-Citement applies just of not sumption mens a imprisonment person of years with more necessary is when the who, liability application for the strict but criminalizing apparently avoid innocent element, still have received would conduct, but also the when Traps, Leonid punishment.” substantial a necessary convicting to avoid defendant Rea Ignorant: Mens Distri- “Knowingly” of a more serious offense for apparently Law bution Federal Criminal After less serious conduct.18 Flores-Figueroa, 112 Colum. L.Rev. Flores-Figuer- that the Recall statute (2012). punished “knowingly oa someone who majority opinion retorts that we are transfers, uses, possesses, or without law- with “an altar who boy not confronted authority, ful a of means of identification Maj. Op. innocent made an mistake.” person” an enu- committing another while (citation omitted). But brackets predicate merated crime. 18 U.S.C. per- the “bad the fact that defendant 1028A; see 129 S.Ct. 1888-89 things” not son” who has done “bad does question was whether the justify dispensing with the of had that Government the defen- imposing in this fashion and dant knew the identification card contained years mandatory prison additional time. of (as identity the of actual person another point: An If example helps illustrate the opposed thinking identification boy bag, altar steals the collection he is merely identity card contained the of guilty larceny. bag happens If also of person). ap- made-up Because statute of sewn contain a stash cocaine into plied only to those who had committed a lining, boy did' know but the altar predicate crime illegally and who had used drugs, about hidden he should not be card, proof ID fake defendant words, guilty drug possession. other card knew’the identification contained larceny guilty fact that he is doesn’t identity person of another actual was not justify rendering guilty possessing him necessary criminalizing to avoid apparent- drugs, plain at least absent some indication ly innocent conduct. The Government ar- legislative intent to eliminate mens rea gued that it therefore should not have to requirement. majority Yet opinion’s prove that knew the card approach here would mean the altar identity actual contained another boy in hypothetical scenario is indeed person. guilty larceny drug possession. of both facts accepted When the as the defendant be- No Justice the Court pre- lieved Government’s argument them have warranted convic- sumption applies only tion of a lesser for a of mens rea when offense called criminalizing legitimate necеssary apparent- lesser to avoid punishment, purpose no above, approach indicated I would confirms and reinforces the indicat- As reach long prece- case even absent Flores- same in this line result ed Figueroa. supra Flores-Figueroa See note dents. Indeed, Court, ly The misreading.” Supreme innocent conduct. the rejected Cases, the ar- specifically Leading Government’s Harv. L.Rev. Term — necessary gument that “the defendant’s defen- guilt predicate of a crime and the In trying presumption to narrow the necessary knowledge that he has dant’s only mens rea so that it applies when authority,’ acted lawful make it ‘without necessary criminalizing to avoid apparent- reasonable” to “read the statute’s lan- conduct, ly innocent majority opinion the guage dispensing knowledge as with the echoes the Government’s failed submission requirement.” Flores-Figueroa, Flores-Figueroa. in It is instructive to at ruled that 1893. The Court the Gov- compare position the Government’s in ernment must still the defendant Flores-Figueroa majority opin- the identity contained knew the card the analysis ion’s here. another even defen- person, though the Flores-Figueroa, In the Government already dant other committing two Morissette, distinguish tried to U.S. Gyp- predicate crimes—the crime and the use sum, Liparota, Staples, and X-Citement of a in fake ID card. The Court relied ground Video that those cases in- rea, part presumption on the de- mens volved statutes that “criminalize conduct a strong scribed the Court as default that might reasonably be viewed inno- statutory interpretation: rule of “The cent presumptively lawful in nature.” ordinarily manner in which the courts in- 42-43, Brief for the United at States terpret fully criminal statutes is consistent Flores-Figueroa, 556 U.S. English with this ordinary usage. That is (No. 08-108). 173 L.Ed.2d 853 say ordinarily phrase courts read a Government further contended that criminal that statute introduces the ele- precedents Court’s mens rea ‘knowing- ments of a with the word crime “should not be apart understood from the ly’ as that word applying to each ele- primary Court’s stated concern avoiding ment.” at 1891.19 non-culpable criminalization otherwise respected commentary As one ex- (citation conduct.” Id. and brackets plained: “Earlier cases had that indicated omitted). And the Government claimed when a federal statute criminalizes other- “the has interpreted scope conduct, wise innocent courts inter- should statutorily prescribed of a mens rea re- pret requirement quirement against a background presump- statute broadly. Some lower courts had tion that generally statutes should not taken this line of decisions to mean criminalizing apparently read as innocent when a federal criminal statute criminal- (internal Id. at quotation conduct.” izes behavior not be innocent omitted). marks Court re- statute, the absence the mens jected arguments those wholesale. apply should be read to to fewer elements crime. Like Government in Flores-Figuer- oa, Flores-Figueroa, majority opinion Court corrected this here tries to dis- offense, succinctly plies 19. Justice concurrence Alito's sum- to all elements of an but it applied marized the of mens rea recognized must be that there are instances in Court, added that may which presump- context well rebut that interpret- was of course not conclusive: “In (Al- Flores-Figueroa, tion.” ing a criminal statute such as the one before ito, J., cоncurring part concurring us, begin I general it is fair to with a think judgment). specified ap- not know was prec- the defendant did even Supreme the Court tinguish relevant that cases those ground opinion edents on the The majority there —the retreats. “that oth- statutes criminalized “involved” concedes that Section majority opinion Maj. Op. at 506. lawful behavior.” erwise 924(c) interpreted require to must be the majority concludes that opinion The carry- that the was knowledge animating pre- the “concerns precedents’ knowledge object ing gun and that the rea “dan- in of mens ”—the sumption favor gun. Maj. Op. See at carried was an boy altar who made ensnaring of an ger majority is that means What are “simply pres- not innocent mistake” — actually the opinion up applying itself ends (internal quo- Maj. Op. ent here.” rea presumption of mens in circumstances omitted). marks And tation and brackets necessary where avoid crimi- it is not to that majority says the “Court opinion the conduct. nalizing apparently innocent in favor developed presumption the concession, of the Given that what is left to particular rea for one reason: mens attempt pre- limit the majority opinion’s to otherwise con- criminalizing avoid lawful sumption of mens rea to circumstances Maj. at 505. Op. duct.” necessary where presumption is thus majority opinion rehashing The criminalizing apparently avoid innocent un theory that the Government the same majority much. opin- conduct? Not The successfully Supreme advanced presump- ion a limitation fashions Flores-Figueroa.20 in Court Supreme tion of mens rea that the Finally, it mention that even the bears in applied rejected and that never was ultimately majority opinion off its backs Flores-Figueroa, rejected that we likewise conduct” limitation to “apparently innocent Villanuevar-Sotelo, in little that makes rea. of mens Under the sense criminal law under fundamental majority opinion’s theory, there should be principles. majority opin- then And no theory apparently recognizing that its 924(c) offense, in- elements the Section ion— generates harsh absurdities —carves out all, cluding gun. carrying After 924(c) hoc exceptions in an ad manner that leaves only to who applies Section someone separate drug has committed a violent or its limitation attempted presump- on the trafficking Requiring proof that crime. tion of mens rea shambles. (i) he was carrying

the defendant knew sum, prece- under (ii) object object that further knew dent, applies gun not carrying he was therefore offense, just to each not element necessary criminalizing apparent- avoid necessary ap- to avoid criminalizing when But ly realizing innocent conduct. Therefore, parently innocent conduct. harsh absurdities that could from result of mens applies namely, 30-year conclusion— weapon automatic character of the Sec- mandatory minimum sentence could im- be tion posed presence based on the cases. proof decision rea for one Court's in Flores- of mens element should Figueroa agreed part this Court’s because was not neces- earlier deci- sary criminalizing sion in with the avoid otherwise inno- Villanueva-Sotelo —and not conduct). position majority opinion today cent had been articulated the Villa- dissenting opinion. employs nueva-Sotelo Villa- some the same rea- See nonetheless nueva-Sotelo, dissenting soning opinion Villa- F.3d 1258-61 J., (Henderson, dissenting) (arguing that used. nueva-Sotelo

547 Supreme VII ated the with Court’s decision in Staples, required which that proof the de- now, By we cleared a lot of have brush gun fendant knew the was automatic in in the of determining presumption that order to convict him of possessing an un- the applies mens rea to automatic charac- registered automatic weapon. 924(c) weapon ter of the Section cases. course, Of the of mens rea is First, penalties the severe at issue here may thus presumption; it be overcome support requiring proof of the defendant’s contrary intent, plainly congressional Supreme mens rea. The Court has re- statutory as revealed in the text or con- peatedly penalty stated that “the imposed Here, text. the of mens rea under a significant statute has been a con- is not overcome.21 sideration determining whether the stat- ute with, dispensing should construed as begin aspects

To three of Section Staples States, mens rea.” 924(c) strongly the 511 reinforce 616, 600, U.S. 114 severity mens rea: the 128 additional L.Ed.2d Video, (1994). In X-Citement gun; sentence for an 608 carrying automatic the the difficulty distinguishing an automat- Court said the “concern with harsh gun gun; penalties ic from a semiautomatic and the looms equally large respecting 2252.” United States v. X-Citement inconsistency that would cre- otherwise be Judge concurring opinion Concurring Op. Henderson’s See Henderson at 519 n. 6. suggests That, too, that the defendant forfeited his mens wrong precedents. is under the objection District in the Court and Failing to instruct on the plain the error standard of review thus should sure, cannot be deemed harmless here. To be law, apply in Under our this case. case possible jury it might is have disbe- wrong. The District Court wrote a careful lieved Burwell and found that he did know (which seven-page opinion it issued before the gun the wás possibility automatic. But that Supreme Court’s decision in United justify dispensing jury does not awith instruc- O’Brien) rejecting States v. the ar- defense's requiring tion the to Government be- gument on the mens rea issue. See United yond a reasonable doubt that Burwell knew Morrow, 04-355, States v. No. WL justify was automatic. Nor (D.D.C. 2005); June see also affirming this Court in this Section Concurring Op. Henderson at 518 n. 1. The notwithstanding conviction the lack of such a explained District Court its view that this jury Court's 1992 decision United States v. Har- instruction. As the Court stat- binding course, ris was Circuit and that the jury, ed in "Of Morissette: consid- Burwell) (including defendants therefore ering Morissette's awareness these cas- argue jury thought they could not ings government property, were his failure weapons their were It is semi-automatic. any permission to seek removal for their objec- true that the defense did not renew that witness, might his as a self-interest have dis- again. entirely appropriate tion But that profession his believed innocent intent and precedents: under our When a district court that his concluded assertion of belief that fully rejected considered then an ar- casings were was an abandoned after- gument, go "to we do not force thought. jury proper Had the convicted on through interposing exercise of futile it would instructions be the end of the matter. objection jury same instructions.” juries are But not bound what seems ines- Williams, United States v. 194 F.3d logic capable judges." Morissette v. United (D.C.Cir.1999). the District de- After Court’s 246, 276, U.S. 72 S.Ct. cision, objection any de- additional from the (1952); L.Ed. see also United States v. futile, fense would have been and Burwell did Co., Gypsum U.S. interpose objection not need to another futile (1978) ("ultimately preserve 57 L.Ed.2d 854 argument. his Judge concurring decision on issue of intent must be left to opinion Henderson's also alone”). contends that error here fact was harmless. trier Inc., penalties those earlier Video, rea eases. In the words of Gypsum, Su L.Ed.2d 372 Court, years severity preme extra 20 manda “The these said: the Court here tory, for our consecutive time support prison further provides sanctions sentencing Act should “extreme increase.” United the Sherman conclusion — O’Brien, U.S. -, strict-liability v. creating States as S.Ct. construed not be 2169, 2178, 176 (2010). Gypsum v. U.S. L.Ed.2d 979 United States crimes.” 2864, 18, Co., 442 n. 98 S.Ct. Congress could that carry- have decided Morissette, in And 57 L.Ed.2d a or an ing either semi-automatic automat- a larceny not to be strict found the Court during equally a gun robbery is de- ic penalty part in “the liability crime because a equally worthy 30-year and praved and, a amount is when sufficient high is mandatory Congress did not do sentence. infamy felony, of a involved, the is that carrying It an automatic so. believed that Maitland, a word which, is ‘as bad as says depraved, far and gun is more serious ” Moris- thing.’ to man or you give can warranting mandatory an years extra 20 246, 260, 72 U.S. sette United carrying time above a prison that for semi- (1952) (ellipsis 96 L.Ed. 288 gun. a fortiori from automatic Almost omitted). Staples, in X- Supreme Court’s decisions Video, X Gypsum, and and Moris- penalties” Staples “harsh in Citement U.S. The sette, years mandatory the additional 20 statutory were máximums Video Citement supports requiring at time imprisonment. prison strongly years’ of 10 602-03, 114 proof namely, proof of mens that the 511 U.S. at rea— in knew sanction U.S. defendant the automatic character of “sever[e]” statutory gun. maximum of 3 the Gypsum was at 442 years’ imprisonment. 438 U.S. n. Second, the difficulty distinguishing “high” penalty S.Ct. 2864. And the gun an automatic from a semi-automatic statutory was a maximum of

in Morissette supports requiring of mens rea. gun proof in 248 & n. year prison. one U.S. guns may and Automatic semi-automatic 240. The deemed Supreme Court externally identical, if not appear similar penalties sufficiently stringent those Staples explained. Court See 511 support of mens rea. 615, 114 “virtually And S.Ct. 1793. case, may semiautomatic be con imprisonment weapon In this additional verted, or, on the character of either internal modification that turns automatic cases, tear,” gun years; simply is an extra 20 the extra 20 in some wear minimum; years mandatory Id. The weapon. and the into automatic Su is 30-year recognized that resulting mandatory preme minimum Court thus is possesses quite possible for this for someone who sentence Section offense (that is, consecutively weapon “genuinely must be served in an automatic to) underly- reasonably” possesses the sentence for the believe that he “a addition weapon. robbery. penalty at issue here conventional semi-automatic” ing omitted).22 (citation dramatically than thus more severe Indeed, very operation. firing "without the evidence case illus- When asked being expert, you difficulty distinguishing gun or trates the semi- firearms fully weapons. A fire- know whether not that auto- automatic from automatic semi-automatic?,” expert question replied, expert guns testified matic or arms readily capable apparent, no.” Trial Tr. were of semi-automatic or automatic "It's Third, proof potent. Indeed, of mens rea is mens rea requiring quite supported by Court’s deci- Supreme stated that statutes pre- which Staples, applied sion containing no express require- sumption very of mens rea similar cir- ment still unambiguously contain a mens There, cumstances. the Court considered requirement. You correctly. read that possession statute that criminalized of an Staples, See 511 U.S. at 619 n. unregistered gun. automatic The statute S.Ct. 1793. express rea require- contained no It is also true that other subsections applied ment. The statutes, Section as well as other ex- of mens rea pressly specific require a rea. mens Be- Government to the defendant Congress cause knows require how to knew that the was automatic. mens rea and required indeed has it in in Staples The a straight- decision raises subsections, other the majority opinion question: forward If the presumption of suggests that the omission of mens rea gun’s mens rea in applied Staples from the weapon automatic element character, why it automatic shouldn’t also 924(c) Section must have been deliberate. gun’s the apply here to automatic charac- But the Court has repeatedly majority ter? opinion per- The offers no rejected that approach mens rea question. suasive to that issues. answer example, For the statute in Morissette are three significant So there textual “[wjhoever punished embezzles, steals, strongly and contextual factors that rein- knowingly or purloins, his converts to use force the rea presumption of mens the or use of another” anything owned support requiring proof that the (1952) § the United States. 18 U.S.C. 641 of gun. knew the automatic character the (emphasis added); 2, see 342 U.S. at 248 n. nothing statutory There is the text or Despite 72 S.Ct. explicit 240. the knowl- context that presumption undermines the edge requirement element, for one of mens rea. Court held that “mere omission” aof mens true, majority It is of course as requirement for another element does 924(c)(l)(B)(ii) opinion notes, that “Section not mens rea requirement eliminate a require- is silent regarding mens rea 263, that other element. 342 72 U.S. Maj. Op. ment.” at 511. as But the Su- Similarly, 240. Carter v. United preme explained again has Court States, parallel faced subsections again, “mere omission from the statute of aof bank statute. robbery While subsec- any mention of intent will not be construed (b) “a specific tion ‘intent steal eliminating as from element ” (a) purloin,’ or subsection contained “no crimes denounced.” United States v. Bai- explicit requirement of any 394, ley, 444 406 n. U.S. 100 S.Ct. 255, 267, (1980) kind.” 530 U.S. Morissette, (quoting L.Ed.2d 575 (2000). 240) (brackets again, 147 L.Ed.2d But once 342 U.S. at 72 S.Ct. omitted). the Court to apply liability refused strict state the If To obvious: (a). Instead, to subsection presumption relying of mens rea overcome “the were silence, scienter,” statutory presumption not be much in favor of (a) of a But presumption. requiring “read subsection as 7286-87, Session, Morning June 307-08; 7284-93, J.A. see also id. at J.A. 305- (iii) ute, of a mens rea nor the inclusion knowledge. the defendant’s

proof’ of part ‘N’ in another of the same And in Posters States, the Court the presumption to defeat v. United statute suffices Things, Ltd. of a statute —21 a section mens rea. interpreted (1988) part § 857 U.S.C. —enacted majority sug broadly, opinion More Act of 1986. See Anti-Drug Abuse of mens rea is gests L.Ed.2d purpose because the of Sec overcome here adjacent section to deter violent use of tion Act, imposed statute, the same enacted goal But the dangerous guns. most requirement. See knowledge explicit is to deter disfa every criminal statute 856(a) (1988). the Court still Yet U.S.C. activity. purpose dangerous vored did not Congress fact that that “the held justi activity criminal deterring text of ‘knowingly’ word include the dispensing fied “justif[y] the conclusion cannot 857” See, for elements of the offense. entirely dispense intended v. United e.g., Flores-Figueroa ‘N’ Posters requirement.” with a scienter 1886, 1892, 173 646, L.Ed.2d 129 S.Ct. U.S. at 114 S.Ct. 1747. Things, 511 U.S. — (2009) (“The however, EPA, -, question, is 132 853 U.S. v. Sackett Cf. (2012) 1367, 1373, Congress L.Ed.2d 367 intended to achieve this whether (“if judicial review provision of convic express protection by permitting the enhanced long complicated of they in one section the ID tion of those who do not know the enough to overcome ie., were alone statute person, a real unlawfully use refers to reviewability all of for presumption APA’s not intend to cause this those who do action, final it not be much agency would harm.”); Morissette, at further 342 U.S. all”). presumption of (“Of course, purpose the 72 S.Ct. 240 every of statute would be ‘obstructed’ short, prece- Court’s In the intent, (i) if finding of we assume requiring definitively that neither establish dents (ii) to convict without rea, purpose it had nor the inclusion silence on mens it.”).23 another stat- of a mens rea machinegun person ... the says possessed ... is a majority opinion it is not “unusu-

23. The the punish imprisonment al to individuals for unintended be to a term of shall sentenced Maj. consequences of their acts.” years.” than 30 18 U.S.C. of not less unlawful sure, Congress sometimes Op. at 507. To be added). 924(c)(1)(B) majori- (emphasis The presumption the of‘mens rea overrides language ty opinion says in Dean that similar negli- only expressly requires recklessness or "whether some- v. United States focused on liability, gence, for an element or even strict why hap- thing happened how or —not here, however, question an The is of offense. 1849, 1853, pened.” 556 U.S. interpret a silent about mens how to statute (2009). And the Dean Court 173 L.Ed.2d 785 pre- rea. The case law establishes showing again, rea. required no of mens But applies sumption rea to each element of mens Dean did not involve an element the of- applying presumption And the of the offense. fense, presumption of mens rea and thus the rea, generally require proof of of mens courts respect apply. With to elements of did not knowledge purpose or for the defendant’s offense, presumption of mens rea does 3; see, e.g., supra note each element. See way merely using apply. And "is” in this (ap- Gypsum, 438 U.S. at 98 S.Ct. ' pre- surely to overcome the does not suffice plying presumption of mens rea to conse- Video, sumption. See X-Citement 513 U.S. saying purpose or quence element and (similarly applying pre- suffices). S.Ct. 464 knowledge statutory language— sumption of mens rea to majority opinion on the also focuses empha- 924(c): the use of a minor”—that "If the firearm "involves verb "is” in Section sum, divining In rea is what presumption Congress mens would have law— Indeed, if it thought wanted had in this statute. situation not overcome before the court—demonstrate wisdom contextual consider- relevant textual and presumption against extraterritori- requiring strongly support proof ations ality. guess Rather than anew in each Therefore, Gov- mens rea this case. case, apply presumption we in all have ernment should been cases, preserving a background stable namely, mens prove the defendant’s rea— against legislate which can with that the defendant knew the effects.”). predictable was automatic.

Second, the presumption significant avoids the ques- VIII constitutional tions would if arise a defendant could seeking to limit the presumption severely punished on a fact based rea, suggests mens Government defendant did not know. If we followed prac- not workаble the Government’s lead and read criminal like this one. That tical statutes literally rea, statutes respect mens wrong. of mens rea is we have open up entire new eminently practical. workable body of constitutional law. See First, of mens elim- California, Lambert 228- inates the difficult statute-by-stat- need for 240, 2 (1957); L.Ed.2d 228 see inquiry stat- particular ute into whether Video, also United States v. X-Citement requires proof ute defendant’s mens Inc.,

rea. The of mens presumption applies rea (1994) (cases “suggest L.Ed.2d 372 that a to each element the offense in of federal completely statute bereft aof scienter re- criminal A stable and statutes. consistent- quirement age performers as to the of the ly applied of presumption yields mens rea doubts”); would raise serious constitutional greater clarity predictability and Co., v. United States U.S. Gypsum courts, prosecutors, 422, 437-38, and It defendants. U.S. 57 L.Ed.2d (“While (1978) that be 854 might strict-liability saves resources otherwise offenses are not unknown to wrangling wasted over whether a the criminal law partic- and invariably do not presumption. ular element offend constitutional re- warrants the quirements, the limited circumstances in Congress It means that need not back go Congress which has created and this Court existing scour all and statutes to ensure has such recognized offenses attest to their properly that mens rea was addressed. status.”) generally disfavored (emphasis Congress worry Nor need that inadvertent added) (citations omitted). ambiguity about mens rea will produce harsh and unintended results. The back- Third, the presumption of mens rea ground principle straightforward: Only carefully competing balances the interests deliberately plainly expressed choice prosecution of the and the defense. The by Congress will override the suggests Government that it would im- be mens rea of that attaches to elements of practical unfair prosecution to the offense. Morrison v. National require of proof the defendant’s mens rea Cf. — Ltd., -, Australia Bank 130 in these circumstances. The Government (2010) 2869, 2881, many S.Ct. 177 L.Ed.2d 535 has advanced such claims times be- (“The judicial-speculation-made- of results fore. Yet the re- something happened, why happened).

sized whether how not it rejecting repeated the of In the Government’s that stated peatedly rea claims that the of mens unfairly burden rea not mens does convict, makes it too to the Su- difficult Indeed, in v. United Staples prosecution. replied tartly Court has that strict preme States, same rejected the- exact the Court liability easy can make- it too to convict: Government and said argument from us a feat of “The Government asks requirement very radically change construction to knowledge issue here — jus- in the weights and-balances scales of easy enough to be automatic—would and obvious effect of purpose tice. contends “The Government prove: away doing with the proof knowledge would requiring ... prosecution’s intent is to ease the guilty a burden heavy too Govern- place conviction, strip to the defendant path functioning the proper ment obstruct such benefit as he derived at common 5861(d). can in- knowledge But purpose, law from innocence of evil and to evidence, in- from circumstantial ferred freedom al- circumscribe the heretofore signaling cluding any external indications juri'es.” Morissette lowed v. United firing a weapon. nature And States, make the fully weapon automatic L.Ed. 288 weapon im- regulated characteristics proving specific If to a short, mediately to its apparent owner. element is indeed considered too burden- that when the we are confident for the can prosecution, Congress some weapon of his knows of the characteristics always the mens require- eliminate Act, bring scope it within crime, particular for a ment element or great will face difficul- Government subject constitutional limits. As ty knowledge.” proving Supreme Court said “Of Staples: 615-16 n. course, if it necessary thinks (citation (1994) omitted); L.Ed.2d see reduce the Government’s burden at trial Flores-Figueroa also Act; proper ensure enforcement 646, 1886, 1893, L.Ed.2d U.S. 173 5861(d) by explic- remains free amend (2009) (“The along proof 853 difficulties of itly rea eliminating requirement.” a mens a necessary guilt with the of defendant’s 11, n. 114 616 S.Ct. So neces- predicate crime and defendant’s too here. sary that he acted ‘without knowledge has of mens ‍‌‌‌​‌​​‌‌​​‌‌‌‌‌‌​​‌‌‌‌‌‌​‌​​​‌‌​‌‌​​​‌‌‌​​​​‌​‌‍is a core reasonable, authority,’ lawful make it law; of rule of it work- element also is view, the stat- Government’s to read practical. able and dispensing ute’s as with the language knowledge do not find requirement. We sufficient, however, argument to turn Convicting of a defendant this Section favor.”).24 imposing

the tide and an extra 20 the Government’s offense S.A., Proving Appliances, a fact that the defendant knew see Global-Tech Inc. v. SEB — -, require proving does not the defendant U.S. S.Ct. 179 131 knowledge was States, certain of that fact. "When (2011); Turner L.Ed.2d 1167 v. United particular the existence of a fact is an element U.S. 416 n. 90 24 S.Ct. offense, knowledge anof such is established if States, (1970); Leary v. L.Ed.2d United high person probability is aware of of its 46 n. existence, actually unless he believes (1969); R. Wayne L.Ed.2d LaFave, Criminal 2.02(7) does not exist.” Model Penal Code (5th ed.2010). Law 262-63 & n.27 (Official 1985); Draft & Revised Comments mandatory allegedly based was years imprisonment doing) Burwell believed he just depraved know is blameworthy on a did not as and as car- fact during rooted unjust incompatible deeply rying gun robbery. and an automatic Congress But principles Supreme of American law. The neither nor the agrees. Congress deliberately Court has se- applied injustice. mandatory to avoid such precisely years mens rea lected 10 minimum opinion person de- Justice Jackson’s Morissette sentence for who commits a rob- bery between and carrying gun. scribed the link while a semi-automatic principles justice and Congress deliberately years bedrock American And chose 30 mandatory an in- responsibility: “The contention that as the minimum sentence for a when jury only person robbery can amount to a crime commits a while car- who provincial is no or rying gun. inflicted intention an automatic As the O’Brien, It is as and explained transient notion. universal persistent systems in mature of law as drew that dramatic distinction because it of the human and a carrying belief freedom will an automatic gun believed consequent ability duty during robbery and of the normal significantly reflected evil. good greater depravity individual to between and moral choose the defendant. A relation some mental element But weap- between that link between the automatic punishment and a harmful act almost on greater depravity for and moral does not excul- actually thought as instinctive as the child’s familiar hold if the defendant his to,’ I mean patory ‘But didn’t was a semi-automatic. tardy basis for a afforded the rational I would conclude that the unfinished substitution deterrence applies of mens weap- the аutomatic ven- place reformation in of retaliation and 924(c). on Applying element Section geance public prose- as the motivation presumption, I hold that cution.” Morissette prove had to Government Burwell 250-51, 72 L.Ed. knew firearm automatic. his Of (1952) (footnote omitted). course, jury might a properly instructed The debate mens rea is not some over might not find Burwell but guilty, he is philosophical It has or academic exercise. jury entitled to instruction whether major consequences real-world for criminal he had the mens rea for this signifi- defendants. it takes on And added offense. Because the Court did District mandatory cance in an often lengthy era of require Government statute, minimum In this dis- sentences. automatic, gun Burwell knew his I pensing means with mens rea an extra vacate Burwell’s Section years mandatory imprisonment for the 924(c)(l)(B)(ii) respectfully conviction. I defendant, mini- tripling mandatory dissent. years mum years. sentence from to 30 30-year

And the must be served sentence to) (that is,

consecutively in addition That underlying robbery.

sentence for the extraordinarily

is an harsh result fact know. did not tempting

It’s to conclude that Burwell

got carrying what he deserved —that (as robbery during

semi-automatic notes 11-12. Br. at Reply gener- fare” are statutes “disfavored” adopt an arguing, appellants undu- In so ally only light penalties, such as involve To ly of “deterrence.” crabbed definition Staples, jail fines or short sentences. sure, might a statute aim to deter each be They U.S. at committing par- offender from a individual further contend that because the (or case, choosing crime in this ticular 10-year Court deemed sentences crime), particular weapon to commit Staples and X-Citement Video to implicitly requires which offender “harsh,” machinegun man- provision’s (or not) engage conscious choice to make a datory years of a to penalty consecutive 30 conduct. But a particular in a course of “can only life be described as draconian.” might attempt also to deter offend- statute NACDL Br. at 21. through imposition generally ers more of attempt to broaden the reach Amicus’ for penalty of severe a cer- particularly In existing -unconvincing. is precedent tain offense. case above, Staples, explained as Court’s 924(e)(l)(B)(ii), § example, Congress severity penalty consideration of the steep penalty such' a likely attached ex- decidedly narrow.. The Court machinegun attempt to of a in an deter use adopt rule pressly sweeping declined to using such weapons. all offenders from of construction that would endorse consid- understanding broader “deter- This severity penalty eration of the as not that each require does individu- rence” rea whether mens determining element in al convicted under statute offender Rather, required. “note[d] have mens respect to the ma- with where, here, only as with dispensing because the deterrent value of chinegun, require the defendant capacity its arises out of the statute only traditionally lawful knowledge have As the Court stat- deter offenders. future conduct, penalty a further fac- Dean, a severe holding the course of ed did suggest tor tending discharge provision eliminate mens rea 924(c)(1)(A)(iii) require- not § if the intend to applies even defen- 618, 114 S.Ct. Staples, ment.” 511 U.S. at weapon, not to fire the dant did intend Video, See, Branham, e.g., X-Citement see also 1793; 513 U.S. ment offense. (evincing same (imposing 515 F.3d at penalty 1275-76 imposing penalties concern harsh about years to life for with possession intent they violating no idea were actors who had to distribute certain types quantities law). obviously This is the case drugs proof without requiring of addi- 924(c)(l)(B)(ii), with respect 841). tional under U.S.C. machinegun pro- defendant faced

Case Details

Case Name: United States v. Bryan Burwell

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 3, 2012

Citation: 690 F.3d 500

Docket Number: 06-3070

Court Abbreviation: D.C. Cir.