UNITED STATES of America, Appellee, v. Cody Jeremiah HUTZELL, Appellant.
No. 99-3719.
United States Court of Appeals, Eighth Circuit.
July 5, 2000.
Sept. 12, 2000.
Submitted: March 14, 2000.
Our rough calculation of the apparent tax loss resulting from the fraudulent stepped-up basis led us to consider whether the district court‘s restitution order should be affirmed as a valid exercise of the court‘s discretion on this alternative ground. But we conclude that would be inappropriate. First, despite the apparent simplicity of focusing exclusively on the fraudulent stepped-up basis, the government has never asserted this theory of tax loss, so its simplicity may well be more apparent than real. Second, Tucker should have an opportunity to challenge this theory with a full tax analysis on a proper record.
Accordingly, the judgment of the district court is reversed and the case is remanded for further sentencing proceedings not inconsistent with this opinion. The government‘s motion to supplement the record on appeal is denied.
* Judge McMillian would grant rehearing.
Edwin F. Kelly, Assistant U.S. Attorney, Des Moines, Iowa, argued (Don C. Nickerson, on the brief), for Appellee.
Before FAGG and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BENNETT,1 Chief District Judge.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Six months before Congress enacted
On appeal from the district court‘s refusal to dismiss the indictment, Mr. Hutzell maintains that his conviction was improper, first, because he personally was unaware of
I.
The government asserts that
The government‘s exclusive focus on statutory language, however, fails to address Mr. Hutzell‘s primary argument, namely, that neither he nor anyone else could be presumed to have had notice that the conduct described in the statute was in fact unlawful, as the fifth amendment‘s due process clause requires before the government may prosecute for that conduct. Mr. Hutzell contends that there is nothing intuitively unlawful about the conduct that
Mr. Hutzell acknowledges, as he must, that his position is in direct conflict with the “common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally,” Barlow v. United States, 32 U.S. (7 Pet.) 404, 411, 8 L.Ed. 728 (1833), but asserts that the Supreme Court‘s decision in Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), provides in his case an exception to the rule. We agree that our decision must be guided by the principles set forth in Lambert, but we do not think that Mr. Hutzell is in a position similar to the one in which the defendant in Lambert found herself.
Lambert, 355 U.S. at 226, 78 S.Ct. 240, involved a Los Angeles city ordinance that imposed criminal penalties on felons who remained in the city for more than five days without registering with the police. The Supreme Court held that the defendant‘s conviction violated the due process clause of the fourteenth amendment because the city failed to establish that the defendant, who had resided in Los Angeles for more than seven years, had any notice that her “wholly passive” conduct (staying in Los Angeles for more than five days without registering) could result in criminal prosecution.
Lambert carves out a very limited exception to the general rule that ignorance of the law is no excuse. The Lambert principle applies, for instance, only to prohibitions on activities that are not per se blameworthy. See generally United States v. Freed, 401 U.S. 601, 608, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971); see also United States v. Meade, 175 F.3d 215, 225-26 (1st Cir.1999), and United States v. Engler, 806 F.2d 425, 435 (3d Cir.1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987). Even assuming that this requirement is met here, Lambert is nevertheless unavailing to Mr. Hutzell if his lack of awareness of the prohibition was objectively unreasonable. See Lambert, 355 U.S. at 229, 78 S.Ct. 240, holding that “proof of the probability of knowledge [of the prohibition‘s content] and subsequent failure to comply are necessary before a conviction under the [applicable law] can stand.”
The district court observed (correctly, we believe) that an individual‘s domestic violence conviction should itself put that person on notice that subsequent possession of a gun might well be subject to regulation. See generally United States v. Mitchell, 209 F.3d 319, 323-24 (4th Cir. 2000). We also agree with the observation in United States v. Beavers, 206 F.3d 706, 710 (6th Cir.2000), cert. denied, 529 U.S. 1121, 120 S.Ct. 1989, 146 L.Ed.2d 815 (2000), that “it should not surprise anyone that the government has enacted legislation in an attempt to limit the means by
No one can reasonably claim, we think, to be unaware of the current level of concern about domestic violence; it is the subject of daily news reports and other media attention. There is evidence, in addition, that
II.
At sentencing, Mr. Hutzell moved for a downward departure from the applicable federal guidelines range on the ground that he had no reason to believe that his conduct constituted a crime. His contention was that his alleged lack of notice left him with an “incomplete defense” analogous to the “imperfect defenses” that are sometimes present when a defendant pleads coercion or duress as a defense. Such circumstances may be the basis for a downward departure. See U.S.S.G. § 5K2.12 (policy statement).
Assuming, without deciding, that the proposed analogy is apt, we see no abuse of discretion in the district court‘s refusal to depart. See Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). It was well within the district court‘s discretion to decide that there was nothing about the facts of this case that take it outside the heartland of
III.
For the foregoing reasons, we affirm the judgment of the district court.
BENNETT, Chief District Judge, dissenting.
When should ignorance of the law be an excuse from criminal liability? John Selden remarked, “Ignorance of the law excuses no man; not that all men know the law, but because it is an excuse every man will plead, and no man can tell how to confute him.” TABLE TALK-LAW 61 (3d ed. 1716). Yet, I believe that, in some cases—and more particularly, in the case now before this court—the Fifth Amendment right to due process requires that ignorance of the law stand as an excuse. Furthermore, I believe that the narrow recognition of the “ignorance of the law defense” by the United States Supreme Court demonstrates that, even though every man may plead ignorance of the law, unwarranted claims to that defense can be confuted.
By dissenting from the majority opinion, I do not mean to suggest that I condone Mr. Hutzell‘s conduct in any way. I find that Mr. Hutzell‘s conduct in wielding a firearm during a domestic dispute was egregious, plainly criminal conduct and that such conduct should have led Mr. Hutzell to expect serious consequences. I do not agree, however, that due process permits one of those consequences to be Mr. Hutzell‘s conviction under
I. STATUTORY INTERPRETATION
A. The Language Of The Statute
Section 922(g)(9) of Title 18, under which Mr. Hutzell was convicted, states no mens rea requirement at all; instead, it merely prohibits certain conduct, as follows: “It shall be unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence ... to ... possess in or affecting commerce, any firearm or ammunition[.]”
That is not, however, the interpretation given to these statutes by the district court. Rather, the district court concluded that proof of Mr. Hutzell‘s knowledge or awareness of the facts supporting his indictment was sufficient to establish a “knowing violation” of
B. Eighth Circuit Precedent
This court has interpreted “knowing violation” requirements as requiring only knowledge of acts constituting the offense, not knowledge of the law, in several recent decisions. For example, in United States v. Sinskey, 119 F.3d 712 (8th Cir.1997), which construed provisions of the Clean Water Act (CWA) establishing criminal penalties for one who “knowingly violates” certain provisions, the court observed that “‘knowingly’ normally means acting with an awareness of one‘s actions.” Sinskey, 119 F.3d at 716. The court explained, “In construing other statutes with similar language and structure, that is, statutes in which one provision punishes the ‘knowing violation’ of another provision that defines the illegal conduct, we have repeatedly held that the word ‘knowingly’ modifies the acts constituting the underlying offense.” Id. at 715 (citing Farrell, 69 F.3d at 893, and United States v. Hern, 926 F.2d 764, 766-68 (8th Cir.1991)). The court therefore concluded that a “knowing violation” of
Furthermore, in Farrell, 69 F.3d at 893, upon which the decision in Sinskey relied, this court interpreted the same “knowing violation” provision at issue here,
In the earlier of the cases relied upon in Sinskey, United States v. Hern, 926 F.2d 764 (8th Cir.1991), this court interpreted “knowing violation” provisions of two other subsections of
C. Other Circuits
1. Majority decisions
Indeed, the district court‘s interpretation of the “knowing violation” language of
2. The Wilson dissent
Similarly, I regret that I cannot embrace wholeheartedly Chief Judge Pos-
One difficulty with Chief Judge Posner‘s analysis is that, in two of the cases on which he relied, Ratzlaf v. United States, 510 U.S. 135, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), and Cheek v. United States, 498 U.S. 192, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991), the language of the statutes the Supreme Court held required knowledge of the law required proof of a “willful” violation, not simply a “knowing” one. See Ratzlaf, 510 U.S. at 136, 114 S.Ct. 655 (interpreting “willfully violating” language in
Moreover, as noted above, a knowledge of the law requirement based on statutory interpretation of “knowing violation” language cannot stand in the face of precedent of this circuit interpreting identical language. See Sinskey, 119 F.3d at 715-16; Farrell, 69 F.3d at 893; Hern, 926 F.2d at 766-68. Nor can it stand in the face of recent interpretation by the Supreme Court of a “knowingly” requirement. In Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998), the Supreme Court explained,
[T]he term “knowingly” does not necessarily have any reference to a culpable state of mind or to knowledge of the law. As Justice Jackson correctly observed, “the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law.” Thus, in United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), we held that the prosecution fulfills its burden of proving a knowing violation of the escape statute “if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission.” Id. at 408, 100 S.Ct. at 634. And in Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128
L.Ed.2d 608 (1994), we held that a charge that the defendant‘s possession of an unregistered machinegun was unlawful required proof “that he knew the weapon he possessed had the characteristics that brought it within the statutory definition of a machinegun.” Id. at 602, 114 S.Ct. at 1795. It was not, however, necessary to prove that the defendant knew that his possession was unlawful. See Rogers v. United States, 522 U.S. 252, 252-57, 118 S.Ct. 673, 674-76, 139 L.Ed.2d 686 (1998). Thus, unless the text of the statute dictates a different result, the term “knowingly” merely requires proof of knowledge of the facts that constitute the offense.
Bryan, 524 U.S. at 192, 118 S.Ct. 1939 (emphasis added) (footnotes omitted).
D. Conclusion On Statutory Interpretation
In light of these precedents, Congress cannot be construed to have intended that the “knowing violation” language of
II. CONSTITUTIONAL REQUIREMENTS
Instead, I believe that the battle over whether or not the government was required to prove that Mr. Hutzell knew or should have known that the law prohibited his possession of a firearm after a misdemeanor conviction for domestic violence must be fought on due process grounds. While I must reject the dissenting opinion in Wilson as supporting a statutory interpretation that
A. Lambert And Its Progeny
1. The Lambert decision
In Lambert, the Court considered the requirements for conviction of a person under a Los Angeles Municipal Code provision that made it unlawful for “any convicted person,” elsewhere defined as a person convicted of a felony or an offense punishable as a felony in California, to be or remain in Los Angeles for a period of more than five days without registering with the Chief of Police. Id. at 226, 78 S.Ct. 240. During a seven-year period of residence in Los Angeles, the appellant was convicted of a felony offense, but only some years after that conviction, while still a resident of Los Angeles, was she charged with and convicted of failing to register, following her arrest on suspicion of another offense. Id. The appellant asserted that her conviction violated her right to due process of law under the United States Constitution. Id. at 227, 78 S.Ct. 240. The Supreme Court considered whether the appellant‘s due process rights had been violated where the appellant, like Mr. Hutzell, had no actual knowledge of her duty to comply with the law in question, and where there was no showing of the probability of such knowledge. Id.
In the majority opinion in Lambert, written by Justice Douglas, the Court rejected the contention that a “vicious will” is necessary to constitute a crime, and
More specifically, the Court was persuaded that due process limits had been passed where the conduct of the person who ran afoul of the law had been “wholly passive—mere failure to register,” because such conduct “is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” Id. The Court reasoned as follows:
Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act. Recent cases illustrating the point ... involved only property interests in civil litigation. But the principle is equally appropriate where a person, wholly passive and unaware of any wrongdoing, is brought to the bar of justice for condemnation in a criminal case.
Lambert, 355 U.S. at 228, 78 S.Ct. 240 (internal citations omitted). The Court in Lambert was persuaded to recognize a due process exception to the maxim that “ignorance of the law will not excuse” by the fact that violation of the registration law in question was “unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking,” and the appellant was given no opportunity to register upon first becoming aware of her duty to register. Id. at 229, 78 S.Ct. 240. The Court concluded as follows:
We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, “A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.” Id., at 50. Its severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.
Lambert, 355 U.S. at 229-30, 78 S.Ct. 240.
Thus, Lambert establishes the following prerequisites for a “due process” exception to the rule that ignorance of the law is no excuse: (1) the conduct of the person who runs afoul of the law must be “wholly passive“; and (2) there must be an “absence of circumstances that should alert the doer to the consequences of his deed.” Id. at 228, 78 S.Ct. 240; compare United States v. Weiler, 458 F.2d 474, 478 (3d Cir.1972) (“The Lambert decision rested on three factors: (1) the crime was one of omission, not commission, (2) the situation to which the ordinance addressed itself was not such as might move one to inquire as to the applicable law and (3) the purpose of the statute was solely to compile a list which might assist law enforcement agencies.“). If these prerequisites are satisfied, the Court held that, to satisfy due process, “actual knowledge of the [requirements of the law] or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can
2. The Freed decision
Justice Douglas, the author of the majority opinion in Lambert, subsequently rejected application of the “Lambert exception” to a statute prohibiting the unregistered possession of hand grenades in United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). Thus, Freed is instructive on the scope of the “Lambert exception.” In Freed, Justice Douglas distinguished Lambert as follows:
Being in Los Angeles was not per se blameworthy. The mere failure to register, we held, was quite “unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” [Lambert, 355 U.S.] at 228, 78 S.Ct. at 243. The fact that the ordinance was a convenient law enforcement technique did not save it....
The present case is [not] in the category ... of Lambert .... This is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act. They are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint, 258 U.S. 250, 254, 42 S.Ct. 301, 303, 66 L.Ed. 604, where a defendant was convicted of sale of narcotics against his claim that he did not know the drugs were covered by a federal act. We say with Chief Justice Taft in that case:
“It is very evident from reading of it that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting the innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided.” Id. at 253-54, 42 S.Ct., at 302-03.
Freed, 401 U.S. at 609-10, 91 S.Ct. 1112.
3. Qualifications for the “Lambert exception”
Reading Lambert and Freed together, it is apparent that a due process or “Lambert exception” to the rule that ignorance of the law is no excuse depends upon the following interrelated requirements: The defendant‘s conduct must not only be (1) “wholly passive,” see Lambert, 355 U.S. at 228, 78 S.Ct. 240, but also (2) must “not [be] per se blameworthy,” see Freed, 401 U.S. at 609, 91 S.Ct. 1112, and there must be (3) an “absence of circumstances that should alert the doer to the consequences of his deed,” see Lambert, 355 U.S. at 228, 78 S.Ct. 240; furthermore, (4) the “injustice” to the defendant of disposing of a “knowledge of the law” requirement must not be outweighed by the benefit to the person the law is meant to protect, see Freed, 401 U.S. at 610, 91 S.Ct. 1112 (quoting Balint, 258 U.S. at 253-54, 42 S.Ct. 301). Only in such a narrowly circumscribed situation, then, does due process require proof of the defendant‘s “actual knowledge of the [requirements of the law] or proof of the probability of such knowledge and subsequent failure to comply ... before a conviction under the ordinance can stand.” Lambert, 355 U.S. at 229, 78 S.Ct. 240.
B. Section 922(g)(9) And Due Process
Are these requirements met by the statute at issue here? I admit that section
1. “Passive conduct”
First, I must sort out what “conduct” of the defendant is pertinent to the first qualification for the “Lambert exception,” the “passive conduct” requirement. To my mind, the fact that the conviction that brought Mr. Hutzell within the purview of
Section
2. “Not per se blameworthy” conduct
Furthermore, it certainly cannot be said that, in American society, being in possession of a firearm is “per se blameworthy.” See Freed, 401 U.S. at 609, 91 S.Ct. 1112. Rather, unlike possession of hand grenades, the prevalence of firearm possession is such that one would “be surprised to learn that possession of [firearms] is not an innocent act.” Freed, 401 U.S. at 609, 91 S.Ct. 1112; see also Staples, 511 U.S. at 610, 114 S.Ct. 1793 (“[T]here is a long tradition of widespread lawful gun ownership by private individuals in this country.“). Admittedly, like hand grenades, firearms can be used as “highly dangerous offensive weapons.” Freed, 401 U.S. at 609, 91 S.Ct. 1112. However, that is perhaps the only use for hand grenades, whereas it is far from the only, or usual, use for firearms in American society.
3. Notice from circumstances
There is also an “absence of circumstances that should alert the doer to the consequences of his deed” in this case. See Lambert, 355 U.S. at 228, 78 S.Ct. 240. I believe that Mr. Hutzell‘s continued pos-
Nor can the passage of
Nor do I believe that Mr. Hutzell‘s subsequent assault on his wife can constitute circumstances that would provide such notice of potential illegality as to obviate application of the “Lambert exception.” Indeed, I believe that Lambert at least tacitly—rejects such bootstrapping. In Lambert, the defendant was charged with violating the registration ordinance after she was arrested on suspicion of another offense. Lambert, 355 U.S. at 226, 78 S.Ct. 240. Neither the majority nor the dissenters in Lambert suggested that the defendant‘s subsequent criminal conduct eliminated due process concerns, i.e., somehow made the defendant aware of the probability of a criminal sanction for failure to register or eliminated the need for such an awareness.
4. The balance of injustices
Finally, Freed requires that the “injustice” to the defendant of disposing of a “knowledge of the law” requirement must not be outweighed by the benefit to the person the law is meant to protect. See Freed, 401 U.S. at 610, 91 S.Ct. 1112 (quoting Balint, 258 U.S. at 253-54, 42 S.Ct. 301). I acknowledge—and support—the rationale for barring persons convicted of domestic violence offenses from possessing firearms. See, e.g., United States v. Meade, 175 F.3d 215, 226 (1st Cir.1999) (“The dangerous propensities of persons with a history of domestic abuse are no secret, and the possibility of tragic encounters has been too often realized.“). Never-
5. Summary
I conclude that prohibited possession of a firearm under
C. Viability of The “Lambert Exception”
I recognize that Lambert has not enjoyed wide-ranging application. Indeed, the majority decision in Lambert was described by three of the four dissenting justices in unprepossessing terms as a de-
1. Rejection based on actual knowledge of the statutory prohibition
I have no quibble at all with any decision upholding the conviction of a defendant who had actual knowledge of the proscription in
2. Rejections based on constructive knowledge
However, I am not convinced that the “Lambert exception” is evaded as easily as the district court decision below or the consonant federal appellate decisions would suggest, where the defendant has no actual knowledge of the prohibitions of
However, I believe that just because these decisions “repeated the mistake does not transform error into truth, but illustrates the potential for future mischief that
Moreover, as I explained above, in Section II.B.3, I believe that Lambert itself forecloses bootstrapping of either a past or present incident of criminal conduct into an awareness of the probability of regulation of otherwise lawful conduct, because in Lambert, neither the defendant‘s prior felony conviction nor the criminal conduct for which she was arrested at the time that her failure to register was discovered was considered by the Court as sufficient to put the defendant on notice of the probability of a registration requirement. See Lambert, 355 U.S. at 225-26, 78 S.Ct. 240. Therefore, even in the face of the overwhelming consistency with which courts have rejected the “Lambert exception” as imposing a “knowledge of the law” requirement for
3. The Bryan decision
Although I believe that Lambert provides the basis for a due process requirement of “knowledge of the law” in this case, I note that courts rejecting such a requirement have often relied on Bryan v. United States, 524 U.S. 184, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998). In Bryan, the Supreme Court considered the circumstances in which a “willfulness” requirement had been construed to require knowledge of the law, as opposed to a more general knowledge of illegality or “evil-meaning mind.” See Bryan, 524 U.S. at 193-94, 118 S.Ct. 1939. Thus, Bryan considered a “knowledge of the law” requirement as a matter of statutory interpretation—and furthermore, statutory interpretation of “willfulness” language not present here—not whether due process imposed such a requirement. Nevertheless, I feel bound to consider the applicability of a “Bryan exception” to the due process argument raised by Mr. Hutzell, because other courts have so regularly considered Bryan in this context.
a. The “Bryan exception”
In Bryan, the court wrote,
In certain cases involving willful violations of the tax laws, we have concluded that the jury must find that the defendant was aware of the specific provision of the tax code that he was charged with violating. See, e.g., Cheek v. United States, 498 U.S. 192, 201, 111 S.Ct. 604, 610, 112 L.Ed.2d 617 (1991). Similarly, in order to satisfy a willful violation in Ratzlaf, we concluded that the jury had to find that the defendant knew that his
structuring of cash transactions to avoid a reporting requirement was unlawful. See 510 U.S. at 138, 149, 114 S.Ct. at 657-658, 663. Those cases, however, are readily distinguishable. Both the tax cases and Ratzlaf involved highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct. As a result, we held that these statutes “carv[e] out an exception to the traditional rule” that ignorance of the law is no excuse and require that the defendant have knowledge of the law.
Bryan, 524 U.S. at 194-95, 118 S.Ct. 1939 (emphasis added) (footnotes omitted). Although the Court in Bryan identified circumstances qualifying for an exception to the rule that ignorance of the law is no excuse, the Court did not find such circumstances existed in the case then before it. Rather, the Court in Bryan found that “the willfulness requirement of
b. The dissent in Bryan
The three dissenting justices in Bryan criticized the majority‘s conclusion that it is enough if the defendant knows, in a general way, that his conduct is unlawful, rather than requiring proof that the defendant must be aware that the actus reus punished by the statute—dealing in firearms without a federal license—is illegal. See Bryan, 524 U.S. at 202, 118 S.Ct. 1939 (Scalia, J., joined by Rehnquist, C.J., and Ginsburg, J., dissenting). They argued, “Once we stop focusing on the conduct the defendant is actually charged with (i.e., selling guns without a license), [we] see no principled way to determine what law the defendant must be conscious of violating.” Id. at 202-03, 118 S.Ct. 1939. The dissenters concluded that “it would be more reasonable to presume that, when Congress makes ignorance of the law a defense to a criminal prohibition, it ordinarily means ignorance of the unlawfulness of the specific conduct punished by that criminal prohibition.” Id. at 203, 118 S.Ct. 1939.
c. Appellate applications of Bryan
Every appellate decision rejecting a due process requirement of knowledge of the law for violations of
In Bryan, the defendant‘s knowledge of the illegality of the actus reus that violated the specific statute under which he was charged—dealing in firearms without a federal license—apparently was not required. See Bryan, 524 U.S. at 196, 118 S.Ct. 1939; and compare id. at 202, 118 S.Ct. 1939 (Scalia, J., joined by Rehnquist, C.J., and Ginsburg, J., dissenting). However, according to the majority, his conduct was not “innocent,” because he was well aware that he was engaging in unlawful transactions in firearms. See id. at 189 & n. 8, 118 S.Ct. 1939; see also id. at 195-96, 118 S.Ct. 1939. As the majority observed, “Why else would he make use of straw purchasers and assure them that he would shave the serial numbers off the guns? Moreover, the street corner sales
d. Application of a “Bryan exception” to Hutzell
Assuming that the “Bryan exception” states a due process standard—that is, assuming that it states a due process requirement of “knowledge of the law” for convictions under “highly technical statutes that presen[t] the danger of ensnaring individuals engaged in apparently innocent conduct“—and construing such a standard to be in accord with Lambert, a conviction under
The defendant‘s prior conviction of a domestic violence offense, or even his knowing involvement in domestic violence at the time that his unlawful possession of a firearm was discovered, does not establish that “[t]he danger of convicting individuals engaged in apparently innocent activity ... is not present here” because no jury could find “that this [defendant] knew that his conduct [of merely possessing a firearm] was unlawful.” Bryan, 524 U.S. at 196, 118 S.Ct. 1939. This is so, even though the defendant could not reasonably suppose that his conduct in assaulting a domestic partner was lawful: The mens rea for the domestic violence offense relates to a criminal act, but it does not relate to the same operative facts giving rise to an offense under
4. An exception without limits?
Finally, I must consider whether recognizing the “Lambert exception” as applica-
III. CONCLUSION
I do not agree that Lambert is nothing more than a “derelict upon the waters of the law,” although few other decisions have sailed in its course. Rather, Lambert provides the narrow, reasoned exception that proves the rule that ignorance of the law is (generally) no excuse. As to