UNITED STATES of America, Plaintiff-Appellee, v. Michael J. O‘MARA, Defendant-Appellant.
No. 90-50632
United States Court of Appeals, Ninth Circuit
May 8, 1992
963 F.2d 1288
Argued and Submitted Dec. 2, 1991.
The legislative history and the structure of the statutory scheme demon-strate, however, that the regulation does serve important ends Congress sought to secure by enаctment of this statute. The statute was promulgated to protect U.S. workers from foreign competition, and to allow U.S. employers to hire foreign work-ers when qualified U.S. workers were not available. See
The regulatory scheme challenged by Bulk Farms is reasonably related to the achievement of the purposes outlined in section 212(a). As the district cоurt cor-rectly noted, “the DOL certification process is built around a central administrative mechanism: A private good faith search by the certification applicant for U.S. workers qualified to take the job at issue.” See
The challenged regulations also rep-resent a reasonable construction of section 212(a) insofar as they ensure the integrity of the information gathered by DOL. As a practical matter, where an employer is in-distinguishable from the alien seeking the job in question, there is reason for the employer to abuse the process. The regu-lation‘s ban on self-employment makes it less likely that the certification process will be manipulated and “sham” employee searches conducted.
Appellant is in effect asking us to con-strue section 212(a) as a provision that en-courages immigration by aliens seeking to engage in entrepreneurial activity in the United States. Its purpose is not that. Rather, Congress has recently enacted ex-press provisions governing requirements for immigration by entrepreneurs. The
AFFIRMED.
Marcia J. Brewer, Los Angeles, Cal., for defendant-appellant.
Steven M. Bauer, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Before SCHROEDER and KOZINSKI, Circuit Judges, and HOGAN,* District Judge.
Michael J. O‘Mara appeals from his con-viction after jury trial for possession of an unregistered firearm in violation of
Appellant maintains that the district court in this case erred in instructing that “the government must prove that the de-fendant knew that he possessed a weapon which would fire bullets, whether or not he knew that the weapon would fire in the automatic mode.” The defense in this case was based оn the assertion that O‘Mara believed the weapon to be a semi-automatic replica of a Sten and testified that he was unable to operate the weapon in an auto-matic mode. He asks us to reverse be-cause the district court refused to give the instruction he wished that contained the following language: “The government must prove that the defendant knew that he possessed a dangerous device and that the device was the type which might be regulated.”
The instruction appellant sought would have added an еlement of partial scienter to a crime which has historically been treat-ed as one in which the government need not prove any specific intent. For example, we held in United States v. Thomas, 531 F.2d 419 (9th Cir.), cert. denied, 425 U.S. 996, 96 S.Ct. 2210, 48 L.Ed.2d 821 (1976), that the trial court did not err in instruct-ing as follows:
There is no requirement that the de-fendant be shown to have a specific in-tent to commit the crime. The Govern-ment does not need to show that the defendant ... knew that the firearm was not registered or that he knew he was required to register it. The only knowl-edge which the Government needs to prove is that the firearm was in his pos-session.
Id. at 421. In Thomas we rejected a de-fense of mistake of fact where the defen-dant possessed an operable rifle as defined in
The language desired by the appellant is drawn from our holding in United States v. Herbert, 698 F.2d 981 (9th Cir.), cert. de-nied, 464 U.S. 821, 104 S.Ct. 87, 78 L.Ed.2d 95 (1983). In Herbert, the instruction origi-nally given by the district court was essen-tially the same instruction given in Thomas. The defense in Herbert, however, was materially different from that in Thomas. In Herbert, the dеfendant possessed a weapon originally designed not to fire as an automatic, and hence, the weapon as originally designed, was not required to be registered. It had been internally mod-ified, however, to fire in the automatic mode. From external appearance, the weapon looked like an ordinary firearm not subject to regulation. The defendant in Herbert wished to argue that he had no knowledge that it had been modified and therefore would not have been on notice that he had violated the law. We pointеd out in Herbert that although there were cases in the circuit, like Thomas, that had approved the type of instruction the district court gave in Herbert, those were all cases in which the weapons appeared to be just what they were—weapons that were sub-ject to regulation and therefore, by their very nature, would put a reasonable person on notice of the possibility of regulation. 698 F.2d at 986. We held in Herbert that, in the particular circumstances of that case, it was error for the district court to instruct the jury that the mere possession of a firearm that is required to be reg-istered is a violation of law. 698 F.2d at 986-87. We said in Herbert that where “there were no external indications on the weapon that indicate it is subject to regula-tion,” the district court must expressly in-struct the jury that the government must prove the defendant “knows that he is deal-ing with a dangerous device of such type as would alert one to the likelihood of regulation.” 698 F.2d at 986 (quoting United States v. DeBartolo, 482 F.2d 312, 316 (1st Cir.1973)). That or similar lan-guage in the circumstances of the Herbert case would permit the defendant to argue to the jury that he did not know about the internal modifications. No similar defense of deception exists in this case.
Appellant‘s reliance on United States v. Kindred, 931 F.2d 609 (9th Cir.1991), is also misplaced. In Kindred, the weapon in question was not only old, as was the weap-on in Thomas, but was missing parts and could not function. We held that the dis-trict court erred in instructing that the government need only prove that the de-fendant knew that the object was a “gun.” We reasoned that such an instruction was appropriate where the оbject was a weapon that was obviously dangerous, but was in-sufficient where the object was obviously not dangerous. We held that the defen-dant therefore should have been given the opportunity to argue to a properly instruct-ed jury that he did not know that the device was “of such a dangerous type as to be subject to regulation.” Here, by contrast, there is no contention that the weapon was not in fact dangerous, only that the defen-dant mistakenly believed the weapon was not an automatic, despite the visible, exter-nal selection switch designed to permit fir-ing in both semi-automatic and automatic modes. The appellant here, as in Thomas, was not entitled to defend on the ground that he was mistaken about the true nature of the weapon.
The concurrence suggests that sec-tion 5861(d), as interpreted by this circuit, requires no proof that a defendant knew of those characteristics of the weapon subject-ing it to the federal registration require-ment. Concurring Opinion at page 1292. This suggestion may be somewhat mislead-ing. Under the cases of this circuit, there is strict liаbility under the statute when the firearm in question, by its very nature or appearance, alerts its owner of the likeli-hood of regulation. Our cases recognize an exception where the nature of the weap-on is not evident. The concurrence cites United States v. Anderson, 885 F.2d 1248 (5th Cir.1989) (en banc), with approval. Anderson comments on the harsh injustice of finding guilt where, unknown to a gun owner and despite a genuine and reason-able belief to the contrary, a semi-automat-ic pistol turns out to have been secretly “modified to be fully automatic.” 885 F.2d at 1254. In such a case, however, as the foregoing discussion of Herbert and Kindred explains, the law of this circuit, too, would require prоof by the government that the defendant actually knew of the characteristics of the weapon which subject it to regulation.
In sum, this court has in Herbert and Kindred created narrow exceptions to the general rule that where the government proves that a defendant is in possession of a gun requiring registration, it need not prove that the defendant knew of the spe-cific properties of the weapon that subject it to registration. The exception in Herbert was for a weapon that was subject to registration only by virtue of internal modi-fication. In Kindred, it was for a wеapon that did not appear to be dangerous. In this case, where the defendant knowingly possessed a weapon, and that weapon bore all the external indicia subjecting it to reg-ulation, the defendant is not entitled to defend on the grounds that he lacked knowledge of the specific characteristics that triggered the registration require-ment.
The Search
The appellant‘s challenge to the le-gality of the search which produced the weapon does not merit lengthy discussion. The park rangers, having received repоrts of illegal firearms discharges in the Joshua Tree National Monument, began stopping all outgoing cars along the only exit route from the campground area where the dis-charges were reported. Their purpose was to question exiting visitors briefly. Wit-nesses had furnished descriptions of sus-pects and the park rangers were also look-ing for persons fitting these descriptions.
Appellant was stopped and the park ranger immediately noticed that he and his passenger matched the descriptions wit-
Appellant contends that the initial stop had to be supportеd by particularized suspi-cion and that the evidence seized should, therefore, have been excluded. Our deci-sion, however, is controlled by the Supreme Court‘s decision in Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). The Court there, after weighing public interest, the degree of intrusion, and the likely effectiveness of the stops, held that roadblock sobriety checks do not violate the fourth amend-ment. The public interest in apprehending persons who randomly shoot dangerous weapons in a public campground is as weighty as the interest involved in Sitz. The intrusion is no greater. The degree to which the stop could be expected to further the public interest in this case was higher than that of the sobriety checkpoints in Sitz, since the officers in this case had good reason to believe that one of the cars exiting the park had occupants which had committed a crime.
AFFIRMED.
KOZINSKI, Circuit Judge, concurring.
Federal law requires some, but not all, firearms to be registered. Six circuits, in-cluding ours, hold that conviction of a de-fendant for possessing an unregistered firearm does not require the government to prove that the defendant knew of the char-aсteristics of the weapon that brought it within the registration requirement. See United States v. Thomas, 531 F.2d 419, 421-22 (9th Cir.), cert. denied, 425 U.S. 996, 96 S.Ct. 2210, 48 L.Ed.2d 821 (1976); see also United States v. Ross, 917 F.2d 997, 999-1001 (7th Cir.1990), cert. de-nied, U.S., 111 S.Ct. 1078, 112 L.Ed.2d 1183 (1991); United States v. Mittleider, 835 F.2d 769, 774 (10th Cir.1987), cert. denied, 485 U.S. 980, 108 S.Ct. 1279, 99 L.Ed.2d 490 (1988); United States v. Shilling, 826 F.2d 1365, 1367-68 (4th Cir.1987), cert. denied, 484 U.S. 1043, 108 S.Ct. 777, 98 L.Ed.2d 863 (1988); United States v. Gonzalez, 719 F.2d 1516, 1522 (11th Cir.1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1312, 79 L.Ed.2d 710 (1984); Morgan v. United States, 564 F.2d 803, 805-06 (8th Cir.1977). Three circuits hold that it does. See United States v. Harris, 959 F.2d 246, 259-261 (D.C.Cir.1992); United States v. Anderson, 885 F.2d 1248, 1250-55 (5th Cir.1989) (en banc); United States v. Williams, 872 F.2d 773, 774-77 (6th Cir.1989); see also Thomas, 531 F.2d at 422-24 (Hufstedler, J., dissenting).
My colleagues reach the correct result under the law of our circuit, but I believe the governing circuit law is in error. I would hold that conviction under
Discussion
A criminal statute is of the strict liability variety if it does not require that the defen-dant know, or be aware of, the facts consti-tuting the crime; under such statutes, ig-norance or mistake of fact does not relieve the defendant of criminal liability. Even if not all elements of a crime provide for strict liability, certain elements may. See United States v. Freed, 401 U.S. 601, 613, 91 S.Ct. 1112, 1120, 28 L.Ed.2d 356 (1971) (Brennan, J., concurring) (“mens rea is not a unitary concept, but may vary as to each element of a crime“).
Suppose a person walks out оf a restau-rant with someone else‘s umbrella mistak-enly believing it to be his own. If the crime of theft requires that the defendant know the property belongs to another, the defendant has a valid defense—if the jury believes his story. But suppose theft does not require that the defendant know the property belongs to another—in other words, that liability is strict as to that element of the crime. If such be the case, the defendant is guilty of theft, regardless of what he thought or knew.
Because, as in my example, strict liability can produce harsh results, it is disfavored in the criminаl law. “Traditional notions of punishment require consciousness of the acts being done.” Ross, 917 F.2d at 1000. As one commentator has noted:
The consensus can be summarily stated: to punish conduct without reference to the actor‘s state of mind is both ineffica-cious and unjust. It is inefficacious be-cause conduct unaccompanied by an awareness of the factors making it crimi-nal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behav-ing similarly in the future, nor does it single him out as a socially dangerous individual who needs to be inсapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy.
Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107, 109.
On the other hand, the criminal law does not generally require that the prosecution prove that the defendant knew of the law rendering his acts criminal. See Model Pe-nal Code § 2.02(9) (Official Draft 1962). Thus the familiar maxims: Ignorance or mistake of the law is no defense; ignorance or mistake of fact is. These are not consti-tutional requirements; they merely reflect the usual legislative practice—and are therefore subject to legislative variation. The legislature can, for example, make knowledge of the law an element of the offense; under such statutes, ignorance or mistake of the law is a defense. See Cheek v. United States, U.S., 111 S.Ct. 604, 609-10, 112 L.Ed.2d 617 (1991) (requir-ing government to prove defendant‘s knowledge of law to obtain criminal tax conviction). Similarly, the legislature can enact a law where the defendant‘s knowl-edge of the facts constituting the crime is not an element of the offense; under such statutes, mistake or ignorance of fact is not a defense. The standard example of this is statutory rape, which generally does not require the prosecution to prove that the defendant had knowledge of the part-ner‘s age.
The question we face here is how to interpret criminal statutes, such as
In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the government argued that federal criminal
The Court again confronted the issue in United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978), where it considered criminal lia-bility under the Sherman Antitrust Act. Although the text of the Sherman Act con-tains no mens rea requirement, the Court was “unwilling to construe the Sherman Act as mandating a regime of strict-liability criminal offenses.” Id. at 436, 98 S.Ct. at 2873. The Court noted “the familiar propo-sition that ‘[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.‘” Id. (quoting Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951)).2 Because of this general presumption and the rule that ambiguous criminal statutes are to be con-strued with lenity, see Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971); see also United States v. Yermian, 468 U.S. 63, 77, 104 S.Ct. 2936, 2943, 82 L.Ed.2d 53 (1984) (Rehnquist, J., dissenting), the Court noted that it had “on a number of occasions read a state-of-mind component into an offense even when the statutory definition did not in terms so provide.” United States Gypsum, 438 U.S. at 437, 98 S.Ct. at 2873 (emphasis added). In fact, the Court read Morissette “as establishing, at least with regard to crimes having their origin in the common law, an interpretative presumption that mens rea is required.” Id. at 437, 98 S.Ct. at 2873.
Morissette and United States Gypsum create a clear rule of statutory interpreta-tion: Courts are to interpret a federal crim-inal statute, or an element of a federal crime, to contain a mens rea requirement unless the structure or language of the statutory text (or, perhaps, the legislative history3) reveals a contrary congressional
The only exception to this rule occurs with a “public welfare offense” (i.e., a crime that is not a common law crime) which has a small penalty attached. The Court articulated the exception in Moris-sette, noting that the public welfare of-fenses for which it had interpreted silence not to require any mens rea are those where “penalties commonly are relatively small, and conviction does no grave dam-age to an offender‘s reputation.” 342 U.S. at 256, 72 S.Ct. at 246. In interpreting the Sherman Act to contain a mens rea require-ment, the United States Gypsum Court found an important factor to be the penalty attached to Sherman Act criminal viola-tions: a potential fine of $100,000 and im-prisonment of three years. “The severity of these sanctions provides further support for our conclusion that the Sherman Act should not be construed as creating strict-liability crimes.” 438 U.S. at 442 n. 18, 98 S.Ct. at 2876 n. 18.5 Similarly, the two cases where the Court interpreted silence to allow strict and vicarious liability in-volved misdemeanors. United States v. Park, 421 U.S. 658, 666 n. 10, 95 S.Ct. 1903, 1908 n. 10, 44 L.Ed.2d 489 (1975); United States v. Dotterweich, 320 U.S. 277, 281, 64 S.Ct. 134, 136, 88 L.Ed. 48 (1943).
As I see it, this is the only situation where the Supreme Court has presumed that congressional silence means that Con-gress intended not to require proof of any mens rea. Here, while it‘s true the offense is a public welfare offense, see Freed, 401 U.S. at 609, 91 S.Ct. at 1118, there is a potentially large penalty attached: The maximum penalty for possession of an un-registered firearm is ten years; Mr. O‘Mara was sentenced to twenty-one months. If O‘Mara‘s claimed defense—that he thought the weaрon was a semi-automatic—is true, this is an extraordinari-ly harsh penalty. After all, in United States Gypsum, where the maximum pen-alty was three years and a fine of $100,000, the severity of the penalty was a strong consideration in the Supreme Court‘s hold-ing that it would not construe the Sherman Act as a strict liability crime. 438 U.S. at 442 n. 18, 98 S.Ct. at 2876 n. 18. In light of this, I think the Fifth Circuit, sitting en banc, hit the nail on the head:
It is unthinkable to us that Congress intended to subject ... law-abiding, well-intentioned citizens to a possible ten-year term of imprisonment if—unknown to them, and without reasonable cause on their part to think otherwise—what they genuinely and reаsonably believed was a conventional semi-automatic pistol turns out to have been worn down into or been secretly modified to be a fully automatic weapon....
We think it far too severe for our community to bear—and plainly not in-tended by Congress—to subject to ten years’ imprisonment one who possesses what appears to be, and what he inno-cently and reasonably believes to be, a wholly ordinary and legal pistol merely because it has been, unknown to him, modified to be fully automatic. Certain-ly we have not done this fоr other of-fenses.
Anderson, 885 F.2d at 1254 (footnote omit-ted).
Conclusion
Notes
Given the disfavor into which legislativе histo-ry has justly fallen, it is questionable whether reliance on legislative history in this context is still appropriate. See West Virginia Univ. Hospi-tals, 111 S.Ct. at 1147; see also United States v. R.L.C., U.S. —, —, 112 S.Ct. 1329, 1340-41, 117 L.Ed.2d 559 (1992) (Scalia, J., con-curring). In any event, section 5861‘s legislative history tells us nothing about whether Congress intended a mens rea requirement as to the char-acteristics of the weapon subjecting it to the registration requirement. See Freed, 401 U.S. at 614, 91 S.Ct. at 1120 (Brennan, J., concurring) (“the legislative history of the amendments to the National Firearms Act is silent on the level of intent to be proved in connection with each element of the offense“); Anderson, 885 F.2d at 1254 n. 9.
It‘s important to note that Freed did not ad-dress the mens rea requirement for the element of the crime at issue here: knowledge of the characteristics of the firearm that subject it to the registration requirеment. See id. at 612, 91 S.Ct. at 1120 (Brennan, J., concurring) (“The Government and the Court agree that the prose-cutor must prove knowing possession of the items and also knowledge that the items pos-sessed were hand grenades. Thus, while the Court does hold that no intent at all need be proved in regard to one element of the of-fense—the unregistered status of the grenades—knowledge must still be proved as to the other two elements.“).