United States v. Hayden ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
8-28-1995
United States v Hayden
Precedential or Non-Precedential:
Docket 94-3349
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-3349
___________
UNITED STATES OF AMERICA
v.
WILLIAM O. HAYDEN,
Appellant
_______________________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 94-cr-00021)
___________________
Argued September 29, 1994
Before: SCIRICA, NYGAARD and McKEE, Circuit Judges
(Filed August 28, 1995)
KAREN S. GERLACH, ESQUIRE (ARGUED)
Office of Federal Public Defender
960 Penn Avenue
415 Convention Tower
Pittsburgh, Pennsylvania 15222
Attorney for Appellant
MICHAEL L. IVORY, ESQUIRE (ARGUED)
BONNIE R. SCHLUETER, ESQUIRE
Office of United States Attorney
633 U.S. Post Office & Courthouse
Pittsburgh, Pennsylvania 15219
Attorneys for Appellee
1
2
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
Appellant William Hayden was convicted of receiving a
firearm while under a felony "information," 18 U.S.C. § 922(n)
(1988). The issue on appeal is the meaning of "willfully" in the
statute's penalty provision, 18 U.S.C. § 924(a)(1)(D) (1988 &
Supp. V 1993). We will reverse and remand.
I.
In January 1993, Pennsylvania authorities charged
Hayden with receiving stolen property and with the unauthorized
use of an automobile. Hayden received a copy of the criminal
information, and he signed a form acknowledging receipt that was
captioned, in capital letters, "RECEIPT OF COPY OF INFORMATION."
Below the caption were the words, "I hereby certify that I have
received a copy of the information filed by the District Attorney
in the above-captioned action," and the accompanying document
states that "[t]he District Attorney of Allegheny County by this
information charges" Hayden with receiving stolen property and
unauthorized use of automobiles and other vehicles.
A month after receiving the information, Hayden went to
a firearms dealer and inquired about purchasing a pistol. The
dealer told Hayden that there was a waiting period and that the
Allegheny County Sheriff's Office and Pennsylvania State Police
would be notified. Hayden then asked about purchasing a rifle.
3
In response, the dealer told him he must give proper
identification, be eighteen years of age, and fill out a Bureau
of Alcohol, Tobacco, and Firearms Form 4473, which was subject to
ATF inspection.
Hayden purchased an AK-47, a semiautomatic rifle with a
magazine capacity of one hundred rounds. He also filled out a
Form 4473 which defined the meaning of the words "indictment" and
"information" and inquired:
Are you under indictment or information*
in any court for a crime punishable by
imprisonment for a term exceeding one year?
* A formal accusation of a crime made by a
prosecuting attorney, as distinguished from
an indictment presented by a grand jury.
Hayden answered "no" to this question, even though Form 4473
twice warned that it was unlawful to answer any of the
questions falsely, stating that "[a]n untruthful answer may
subject you to criminal prosecution." Just above Hayden's
signature, the form provided the following certification:
I understand that a person who answers "Yes"
to any of the above questions is prohibited
from purchasing and/or possessing a firearm,
except as otherwise provided by Federal Law.
I also understand that the making of any
false oral or written statement or the
exhibiting of any false or misrepresented
identification with respect to this
transaction is a crime punishable as a
felony.
The ATF ran a criminal history check on Hayden and
found the information pending in Allegheny County. Hayden was
indicted and charged with one count of violating 18 U.S.C.
4
§ 922(n), receiving a firearm while under an indictment or
information. At a non-jury trial, Hayden attempted to prove that
his low intelligence and reading ability prevented him from
understanding the document sent to him was an "information" and
that, in purchasing a gun, he did not know he was violating the
law. The district court prevented such testimony from Hayden and
his experts, ruling that the government need not prove he knew he
was violating the law. Hayden was convicted and sentenced to
eight months in prison, three years of supervised release, and a
$50 special assessment.
II.
Hayden was charged under 18 U.S.C. § 922(n), which
provides as follows:
It shall be unlawful for any person who
is under indictment for a crime punishable by
imprisonment for a term exceeding one year to
ship or transport in interstate or foreign
commerce any firearm or ammunition or receive
any firearm or ammunition which has been
shipped or transported in interstate or
foreign commerce.
Section 922(n) has a corresponding penalty provision, found in 18
U.S.C. § 924(a)(1)(D), which provides:
(a)(1) Except as otherwise provided in this
subsection, subsection (b), (c), or (f) of
this section, or in the section 929, whoever
--
(D) willfully violates any other
provision of this chapter, shall be fined not
more than $5,000, imprisoned not more than
five years, or both. (emphasis added).
The district court had jurisdiction under 18 U.S.C.
§3231 (1988). We have jurisdiction under 28 U.S.C. § 1291
5
(1988). Because § 924(a)(1)(D)'s willfulness language involves
statutory interpretation, our standard of review is plenary.
United States v. Meraz, 998 F.2d 182, 183 (3d Cir. 1993). We
review the trial court's evidentiary rulings for an abuse of
discretion. United States v. Sampson, 980 F.2d 883, 889 (3d Cir.
1992).
III.
This case requires us to determine the meaning of the
term "willfully" in 18 U.S.C. § 924(a)(1)(D). The government
contends that the term requires merely a purpose to commit the
prohibited act. But Hayden alleges "willfully" also requires
that the government prove he intended to violate the law. We
believe that either interpretation is plausible. Cf. Rachael
Simonoff, Ratzlaf v. United States: The Meaning of "Willful" and
the Demands of Due Process, 28 Colum. J.L. & Soc. Probs. 397, 397
(1995) (citing Model Penal Code) ("[T]wo interpretations of
'willful' have developed. The first interpretation requires
merely a purpose or willingness to commit the act. The second
requires, in addition, an intent to violate the law itself."). As
the Supreme Court has noted, "'Willful' . . . is a 'word of many
meanings,' and 'its construction [is] often . . . influenced by
its context.'" Ratzlaf v. United States, 114 S. Ct. 655, 659
(1994) (citation omitted).
A.
In 1968, Congress barred persons convicted of or
indicted for serious crimes from receiving firearms as part of a
6
comprehensive gun control package0 "enacted in response to the
precipitous rise in political assassinations, riots, and other
violent crimes involving firearms, that occurred in this country
in the 1960's." Lewis v. United States, 445 U.S. 55, 63 (1980).
The offense appeared to contain no scienter requirement,0 and
courts interpreted it as either requiring no specific intent0 or
no scienter at all.0
Congress recognized later that without a mens rea
requirement, the law could inflict severe penalties upon persons
who unintentionally violated firearms offenses. So it passed the
Firearms Owners' Protection Act of 1986, Pub. L. No. 99-308, 100
Stat. 449 (1986), which overhauled the system of firearms
offenses. The Act "added a set of mens rea requirements by
amending section 924(a)(1) to punish certain violations only if
they are committed 'willfully' and others only if they are
committed 'knowingly.'" United States v. Sherbondy, 865 F.2d
0
Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No.
90-351, tit. IV, 82 Stat. 197, 225, 231 (1968), as amended by the
Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (1968)
(codified as amended at 18 U.S.C. §§ 921-928 (1970)).
0
See United States v. Sherbondy, 865 F.2d 996, 1001 (9th Cir.
1988) ("many of the firearms provisions were, on their face,
strict liability offenses" prior to their amendment in 1986).
0
See, e.g., United States v. Weiler, 458 F.2d 474, 477 (3d Cir.
1972) ("[W]e construe Section 922(g)(1) as a Congressional
determination . . . that the transportation of firearms in
interstate commerce by persons previously convicted of, or
charged with, serious crime presents a serious hazard to the
public welfare without regard to whether the one doing the
transporting knows of the Gun Control Act.").
0
See, e.g., United States v. Quiroz, 449 F.2d 583, 585 (9th Cir.
1971) (holding that defendants need not know their weapons were
"firearms," within the meaning of the statute, because
"§ 922(g), does not contain a scienter element").
7
996, 1001 (9th Cir. 1988). These new penalty provisions, which
affected a range of firearms offenses contained in § 922,
provide:
§ 924. Penalties
(a)(1) Except as otherwise provided in
this subsection, subsection (b), (c), or (f)
of this section, or in section 929, whoever--
(A) knowingly makes any false
statement or representation with
respect to the information required
by this chapter to be kept in the
records of a person licensed under
this chapter or in applying for any
license or exemption or relief from
disability under the provisions of
this chapter;
(B) knowingly violates subsection
(a)(4), (a)(6), (f), (k), or (q) of
section 922;
(C) knowingly imports or brings
into the United States or any
possession thereof any firearm or
ammunition in violation of section
922(l); or
(D) willfully violates any other
provision of this chapter,
shall be fined not more than $5,000, imprisoned not
more than five years, or both.
18 U.S.C. § 924(a)(1) (1988 & Supp. V 1993) (emphasis added). The
"catch-all" provision, § 924(a)(1)(D), is applicable to the
offense for which Hayden was convicted, § 922(n), but it is not
8
apparent from the face of the statute what the phrase, "willfully
violates," is intended to mean.0
It took seven years from the time the Firearm Owners'
Protection Act ("FOPA") was introduced in 1979 to its enactment
in 1986. See David T. Hardy, The Firearms Owners' Protection
Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585,
585 (1987). Despite contradictory signals from lawmakers, id. at
645-53, the most consistent interpretation of § 924(a)(1)(D) is
0
A discussion between Judge Learned Hand and Herbert Wechsler,
the Reporter for the Model Penal Code, illustrates the difficulty
in interpreting "willfully" in criminal statutes:
JUDGE HAND: Do you use . . . [wilfully]
throughout? How often do you use it? It's a
very dreadful word.
MR. WECHSLER: We will never use it in
the Code, but we are superimposing this on
offenses outside the Code. It was for that
purpose that I thought that this was useful.
I would never use it.
JUDGE HAND: Maybe it is useful. It's an
awful word! It is one of the most
troublesome words in a statute that I know.
If I were to have the index purged, "wilful"
would lead all the rest in spite of its being
at the end of the alphabet.
MR. WECHSLER: I agree with you Judge
Hand, and I promise you unequivocally that
the word will never be used in the definition
of any offense in the Code. But because it
is such a dreadful word and so common in the
regulatory statutes, it seemed to me useful
to superimpose some norm of meaning on it. .
. .
Model Penal Code and Commentaries § 2.02, at 249 n.47 (Official
Draft and Revised Comments 1985) (quoting ALI Proceeding 160
(1955)).
9
that Congress intended "willfully" to mean that a defendant must
know his conduct is illegal. As one author explained:
Early versions of FOPA required a willful
state of mind for any prosecutions. That
this was understood to require knowledge of
illegality is apparent from the report on S.
1030. The division between "willful" for
some offenses and "knowing" for others
originated in the Treasury-NRA negotiations,
and was specifically premised upon an
understanding that proof of willfulness
required proof that the defendant knew of the
illegality of his conduct. . . . In light of
these extensive considerations, it is
impossible to avoid the conclusion that
Congress was fully aware that its use of
"willfully" in FOPA would require proof that
the defendant actually knew of the illegality
of his acts.
Id. at 650-52 (footnotes omitted); cf. Sherbondy, 865 F.2d at
1002. In fact, a House report criticized the bill for its
requirement of willfulness for some offenses, but noted that
"[p]roponents of the willfulness standard argue that the offenses
for which the standard would apply are mere regulatory offenses,
for which a conscious and specific intent to violate the law
should be required." H.R. Rep. No. 495, 99th Cong. 2d Sess. 11
(1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1337.
Perhaps more persuasive than the legislative history is
the statutory context in which the "willfully" language appears.
As we have explained, the penalty provision of § 924(a)(1)
requires defendants to "knowingly" act for offenses covered by
the first three subparts thereto, § 924(a)(1)(A)-(C), but
mandates they "willfully" violate the offenses covered by the
final subpart, § 924(a)(1)(D). The Court of Appeals for the
10
Seventh Circuit noted the significance of this distinction:
"Congress' use of the term 'willfully' in subsection (D)
indicates that it intended a scienter standard there that is
distinct from the 'knowingly' requirement of the previous three
subsections." United States v. Obiechie, 38 F.3d 309, 314 (7th
Cir. 1994).
In defining "knowingly," courts have almost uniformly
rejected arguments that the term requires the defendant know his
conduct was unlawful; rather, they have interpreted "knowingly"
merely to require that the defendant know he was engaging in the
prohibited conduct. Id. at 314-15; United States v. Hern, 926
F.2d 764, 767 n.5 (8th Cir. 1991); Sherbondy, 865 F.2d at 1001-
03; United States v. Dancy, 861 F.2d 77, 80-82 (5th Cir. 1988);
cf. United States v. Langley, No. 93-5219, 1995 WL 476634 (4th
Cir. Aug. 14, 1995) (en banc). In light of the legislative
history, it is difficult to understand what more the "willfully"
language could require, if not knowledge of the law. See, e.g.,
Obiechie, 38 F.3d at 315 ("In our view, the only reasonable
distinction between section 924(a)(1)'s 'knowingly' and
'willfully' standards is that the latter requires knowledge of
the law."); Hern, 926 F.2d at 767 & n.6 (noting the defendant
"assumes, and the government does not dispute, that 'willful'
means an intentional violation of a known legal duty" and stating
"[w]e believe the legislative history is consistent with this
definition of willful").0 Therefore, because of the legislative
0
Although we recognize the Court of Appeals for the Second
Circuit reached a contrary conclusion in United States v.
11
history and the context in which "willfully" and "knowingly" were
added simultaneously to different provisions of the same
statutory subsection, we hold that "willfully" in § 924(a)(1)(D)
means the defendant must have acted with knowledge that his
conduct was unlawful.
B.
Hayden contends that our interpretation of "willfully"
here is controlled by the Supreme Court's decision in Ratzlaf v.
United States, 114 S. Ct. 655 (1994). In Ratzlaf, the Supreme
Court reiterated "the venerable principle that ignorance of the
law generally is no defense to a criminal charge." Id. at 663;
see also Cheek v. United States, 498 U.S. 192, 199 (1991) ("The
general rule that ignorance of the law or a mistake of law is no
defense to criminal prosecution is deeply rooted in the American
legal system."). Nevertheless, Ratzlaf held that in particular
contexts, such as the case then before the Court, "Congress may
decree otherwise." 114 S. Ct. at 663.
We already have determined the definition of
"willfully" in § 924(a)(1)(D) requires that a defendant know his
conduct is unlawful, see supra part III.A, just as the Ratzlaf
Court decided with regard to the statutes it construed.
Collins, 957 F.2d 72, 76 (2d Cir.), cert. denied, 504 U.S. 944
(1992), we concur with the discussion of Collins in United States
v. Obiechie, 38 F.3d 309, 315 (7th Cir. 1994) ("In reaching the
opposite conclusion in Collins, the Second Circuit neither
discussed Sherbondy and Hern, nor attempted to differentiate
between FOPA's 'knowingly' and 'willfully' standards. Indeed,
Collins failed even to note that FOPA applies a 'knowingly'
standard to some violations and a 'willfully' standard to
others.").
12
Nevertheless, we believe the Ratzlaf analysis is neither useful
nor applicable here.
As in this case, Ratzlaf involved two statutory
provisions, the first criminalizing the conduct and the second
designating the penalty. Compare 18 U.S.C. §§ 922(n),
924(a)(1)(D) (at issue here) with 31 U.S.C. §§ 5324(a)(3),
5322(a) (at issue in Ratzlaf). In Ratzlaf, the offense barred
transactions structured "for the purpose" of evading certain
federal financial reporting requirements. 31 U.S.C. §5324(a)(3).
Thus, the statute required that a defendant know he was evading
reporting requirements and intend to do so. Section 5324's
corresponding penalty provision, § 5322(a), set out punishments
for persons "willfully violating" the statute. The government,
however, contended that the "willfully violating" language of the
penalty provision meant nothing, that "the 5324 offense is just
what it would be if you never had 5322." 114 S. Ct. at 659 n.7.
The Supreme Court rejected that argument, holding that
courts should hesitate to treat statutory terms as "surplusage."
Id. at 659; see also United States v. Zehrbach, 47 F.3d 1252,
1261 (3d Cir.) (in banc) ("The [Ratzlaf] Court found that failure
to read knowledge of illegality into a violation prosecuted under
§ 5322 would -- in light of § 5324's purposefulness requirement -
- treat '§ 5322(a)'s willfulness' requirement essentially as
surplusage."), cert. denied, 115 S. Ct. 1699 (1995). The Ratzlaf
Court also found it significant that courts of appeals
consistently had interpreted the § 5322 "willfulness"
requirement, as applied to other offenses in the same subchapter,
13
to require both "'knowledge of the reporting requirement' and a
'specific intent to commit the crime,' i.e., 'a purpose to
disobey the law.'" 114 S. Ct. at 659 (citations omitted).
Finally, the Court rejected the claim that "structuring is so
obviously 'evil' or inherently 'bad' that the 'willfulness'
requirement is satisfied irrespective of the defendant's
knowledge of the illegality of structuring." Id. at 662.
The considerations the Supreme Court found persuasive
in Ratzlaf, however, are not present in this case. There is no
attempt here to treat the language of the penalty statute as mere
"surplusage." As we have noted, the criminal statute and
corresponding penalty provision in Ratzlaf both contained mens
rea requirements, the first requiring the conduct be done "for
the purpose of" evading federal reporting requirements and the
second penalizing those "willfully violating" the first. See 31
U.S.C. §§ 5324(a)(3), 5322(a). In this case, the criminal
statute contains no mens rea requirement; only the corresponding
penalty provision does. See 18 U.S.C. §§ 922(n), 924(a)(1)(D).
In fact, Congress enacted the "willfully" language in the penalty
provision in 1986 to ensure that the firearms statutes contained
a mens rea element and would not be interpreted as strict
liability offenses. See supra part III.A. Therefore, even if we
had construed the "willfully" language here merely to require
that defendants know they are committing the prohibited act, we
would not be treating the term as "surplusage."0
0
Besides its primary concern with treating statutory language as
"surplusage," the Ratzlaf Court noted two other factors it found
14
In support of his position that Ratzlaf controls this
case, Hayden cites our decision in United States v. Curran, 20
F.3d 560 (3d Cir. 1994), which applied the Ratzlaf willfulness
standard to violations of a federal false statements statute. In
Curran, the defendant was convicted of causing election campaign
treasurers to submit false reports to the Federal Election
Commission in violation of 18 U.S.C. §§ 2(b) and 1001. Section
1001 prohibits making false statements to a federal agency and
requires that "the government must prove that prohibited conduct
was performed 'knowingly and willfully.'" Id. at 567. Section
persuasive. First, it found significant the fact that the courts
of appeals consistently had interpreted the "willfully" language
in the applicable penalty statute to require a purpose to disobey
the law. 114 S. Ct. 655, 659 (1994). In this case, however, the
courts of appeals are divided in their interpretation of § 924,
the penalty provision at issue. See supra note 6.
Second, the Court rejected the claim that currency
"structuring is so obviously 'evil' or inherently 'bad' that the
'willfulness' requirement is satisfied irrespective of the
defendant's knowledge of the illegality of structuring." 114 S.
Ct. at 662. This case involves firearms, which the Supreme Court
has determined are not generally such dangerous devices as to
"put gun owners on notice that they must determine at their
hazard" whether ownership of certain weapons would constitute a
crime. Staples v. United States, 114 S. Ct. 1793, 1798, 1800
(1994). This reasoning may not apply here, however, because
those indicted for or convicted of felonies are routinely subject
to restrictions not applicable to the general population; thus,
they may be held to be on notice of the need to determine whether
they are barred from certain ordinarily lawful conduct -- such as
gun ownership. Cf. Lewis v. United States, 445 U.S. 55, 64
(1980) (noting that firearms control legislation "prohibits
categories of presumptively dangerous persons from transporting
or receiving firearms" and that "the fact of mere indictment is a
disabling circumstance" under 18 U.S.C. § 922(h), the statutory
predecessor to § 922(n)). Because the other factors persuasive
to the Supreme Court in Ratzlaf do not exist here, we need not
decide the applicability of this final factor.
15
2(b) provides that a person who "willfully causes" another person
to commit a criminal act is liable as a principal. Because the
Curran defendant did not make the false statements himself, but
caused campaign treasurers to do so, the government proceeded
under "section 2(b) in tandem with section 1001." Id. Thus,
Curran involved an interplay between two statutes, both
containing a willfulness requirement, just as in Ratzlaf. As we
have noted, this interplay does not exist between the statutes
involved in this case.0
We emphasize that Ratzlaf did not alter "the venerable
principle that ignorance of the law generally is no defense to a
criminal charge." Ratzlaf, 114 S. Ct. at 663. In fact, Ratzlaf
"emphasized that its decision was particular to the plain meaning
of the statute then before it." Zehrbach, 47 F.3d at 1262
0
In Curran, we also noted that both it and Ratzlaf involved a
"defendant's knowledge of a third party's duty to disclose
information to a government agency." 20 F.3d 560, 569 (3d Cir.
1994). In both cases, without the duty to disclose information
to the government, there would have been no offense. For
example, in Ratzlaf, the statute prohibited persons from acting
"for the purpose of evading the reporting requirements" of
structuring laws. 114 S. Ct. at 658. Likewise, in Curran, 18
U.S.C. § 1001 prohibited persons from making false statements to
a federal agency or department, and 18 U.S.C. § 2(b) barred
persons from "willfully" causing others to commit a criminal act.
The liability in Curran resulted from the defendant causing
election campaign treasurers to submit false reports to the
Federal Election Commission. 20 F.3d at 562. Therefore, if
there had been no duty to disclose information in Curran and
Ratzlaf, then the defendants could not have committed those
offenses. In this case, however, Hayden was not charged with
making a false statement on Form 4473 or causing another person
to do so. He merely was charged with illegal receipt of a
firearm. Although his false statement on Form 4473 may be
relevant to prove whether he knew his conduct was illegal, it
does not constitute an element or even directly involve the
offense of which he was convicted.
16
(citing Ratzlaf). Therefore, for the reasons we have expressed,
we believe the Ratzlaf analysis is inapplicable here.0
IV.
Although we believe that "willfully" in § 924(a)(1)(D)
means a defendant must have acted with knowledge that his conduct
was unlawful, the question remains what quantum of proof suffices
for a conviction. In this case, as we have noted, the ATF Form
4473 provided a certification of the purchaser's knowledge:
I understand that a person who answers "Yes"
to any of the above questions is prohibited
from purchasing and/or possessing a firearm,
except as otherwise provided by Federal law.
I also understand that the making of any
false oral or written statement or the
exhibiting of any false or misrepresented
identification with respect to this
transaction is a crime punishable as a
felony.
Hayden's signature appears on the form immediately below these
words. Absent a disability, such as mental incapacity or
illiteracy, this certification should be sufficient to prove
knowledge of the law under §§ 922(n) and 924(a)(1)(D).0
0
We recognize that the Court of Appeals for the Seventh Circuit
relied on Ratzlaf in holding that the "willfully" language of §
924(a)(1)(D) required a defendant know his conduct was unlawful.
United States v. Obiechie, 38 F.3d 309, 313-14 (7th Cir. 1994).
But Obiechie is not inconsistent with the result we have reached
here, because it merely followed Ratzlaf's command to interpret
willfulness "by considering the context of the term's use within
the overall structure of the statute," id. at 314, an analysis we
undertook in section III.A.
0
Of course, a defendant's knowledge could be proven other than by
certification. The back of Form 4473 provides instruction for
cases when a "buyer is unable to read and/or write," and warns
that "[t]he transferor (seller) of a firearm is responsible for
determining the lawfulness of the transaction . . . ." This
frequently results in firearms owners reading aloud the questions
on Form 4473 to buyers unable to read. See infra part IV.B.
17
A.
Hayden contends his low intelligence and reading
ability constituted such a disability, preventing him from
understanding he was under indictment or information. Hence, he
claims he did not know his conduct in purchasing the weapon was
unlawful. But we have long recognized that defendants may not
avoid the knowledge requirement of criminal statutes merely by
ignoring the high probability they may be breaking the law. See,
e.g., United States v. Caminos, 770 F.2d 361, 365-66 (3d Cir.
1985) (holding knowledge requirement satisfied if "defendant
himself was subjectively aware of the high probability of the
fact in question").0
This result comports with the rationale underlying the
requirement that a defendant know he has been indicted. The
requirement that the possessor know his status is necessary
0
Cf. United States v. Hester, 880 F.2d 799, 803 n.4 (4th Cir.
1989) (citing Leary v. United States, 395 U.S. 6, 46 n.93 (1969))
("[T]he [Supreme] Court has indicated general acceptance of the
proposition that awareness of 'a high probability' that a fact
exists may properly be equated with 'knowledge' in the
interpretation of criminal statutes."); United States v. Jewell,
532 F.2d 697, 700 (9th Cir.), cert. denied, 426 U.S. 951 (1976).
In Hester, the court held that knowledge meant actual
knowledge or "deliberate disregard for its truth or falsity with
a conscious purpose to avoid learning the truth." 800 F.2d at
802-03. We believe that this standard of "deliberate disregard
for [] truth or falsity with a conscious purpose to avoid
learning the truth" requires a defendant's subjective awareness
of the fact in question, in this case, that he is breaking the
law or that it is "high[ly] probab[le]" he is violating it. This
standard does not permit a conviction when a defendant is merely
negligent or reckless in failing to realize the unlawfulness of
his actions. See United States v. Caminos, 770 F.2d 361, 365-66
(3d Cir. 1985).
18
because of the "special circumstances that may surround one under
indictment, i.e., he may not be aware of the fact that he has
been indicted because of failure to serve him on a secret
indictment." United States v. Renner, 496 F.2d 922, 926 (6th
Cir. 1974); see also United States v. Ballentine, 4 F.3d 504, 506
(7th Cir. 1993) ("Because there is a possibility that an
indictment will remain sealed, a knowledge requirement would
appear to be necessary to address the circumstance of a
defendant's receiving a firearm while subject to an undisclosed
sealed indictment. Without such a requirement, there could be
unintended strict liability."), cert. denied, 114 S. Ct. 1222
(1994). Therefore, if a defendant knows he has been indicted or
deliberately avoids ascertaining his status, and thereafter
purchases a firearm, he will have satisfied the knowledge
requirement of § 922(n).0
0
Section 922(n) applies to "any person who is under indictment
for a crime punishable by imprisonment for a term exceeding one
year." At oral argument, defendant's counsel asserted the
government also must prove Hayden knew the crime for which he was
under information carried a possible jail term of more than one
year. We disagree. In Staples v. United States, 114 S. Ct. 1793
(1994), the Supreme Court interpreted 26 U.S.C. §5861(d), which
makes it unlawful for anyone "to receive or possess a firearm
which is not registered to him." The Court noted that United
States v. Freed, 401 U.S. 601 (1971), already had determined that
"§ 5861(d) does not require proof of knowledge that a firearm is
unregistered." 114 S. Ct. at 1799. Staples concluded that "our
determination that a defendant need not know that his weapon is
unregistered suggests no conclusion concerning whether § 5861(d)
requires the defendant to know of the features that make his
weapon a statutory 'firearm'; different elements of the same
offense can require different mental states." Id.; see also
Freed, 401 U.S. at 610, 613-14 (Brennan, J., concurring) ("[M]ens
rea is not a unitary concept, but may vary as to each element of
a crime . . . . To determine the mental element required for
conviction, each material element of the offense must be examined
19
B.
In this case, the district court prevented Hayden from
presenting evidence of his knowledge of the information. Hayden
contends the precluded testimony as to his low intelligence and
reading levels would have established that he genuinely believed
he was not under an information or at least would have raised a
reasonable doubt in the jury's mind.
Evidence of low intelligence and reading ability is
generally relevant in determining knowledge and is usually a jury
question. In similar cases, some factfinders have not been
convinced by such evidence or have chosen to believe contrary
evidence offered by the government. In United States v.
Fauntleroy, 488 F.2d 79, 80-81 (4th Cir. 1973), the defendant
asserted an illiteracy defense when accused of knowingly making a
false statement to a firearm dealer on a Form 4473. In
Fauntleroy, however, the dealer read the form to the defendant.
The court, in a non-jury trial, believed the defendant understood
the form's questions and determined he knowingly made a false
and the determination made what level of intent Congress intended
the Government to prove . . . ."). In this case, we believe the
length of possible imprisonment is a separate element of the §
922(n) offense, one for which the defendant need have no mens
rea. Cf. United States v. Yermian, 468 U.S. 63 (1984) (holding
that, in offense of making false statement within jurisdiction of
agency of United States, the federal agency element is a
jurisdictional requirement only and conviction does not require
the defendant knew of that element at the time of the offense);
United States v. Dancy, 861 F.2d 77, 81-82 (5th Cir. 1988)
(holding that §922(g), which bars convicted felons from receiving
firearms transported through interstate commerce, does not
require proof that a defendant had knowledge the weapon had an
interstate nexus).
20
statement. See also United States v. Petitjean, 883 F.2d 1341,
1347 (7th Cir. 1989) ("[T]here was conflicting testimony as to
whether Petitjean was sufficiently literate to have read the ATF
Form 4473. . . . [I]n finding Petitjean guilty, the jury
evidently rejected Petitjean's illiteracy defense."); United
States v. Heath, 536 F.2d 1069, 1070 (5th Cir. 1976) (upholding
conviction of illiterate defendant who made an "X" mark on a Form
4473 because "the jury must have credited the sales clerk's
testimony that he asked defendant the required questions and that
defendant responded falsely"); United States v. Brown, 458 F.2d
375, 376 (6th Cir. 1972) (upholding false statement conviction in
case with dispute over whether gun shop owner had read Form 4473
to illiterate defendant because "determination of credibility was
within the province of the jury").
We believe that Hayden's knowledge of whether he was
under an indictment or information was central to his defense and
indispensable to the factfinder in assessing whether he willfully
violated § 922(n). Because the district court prevented Hayden
from offering such evidence regarding his low intelligence and
reading ability, we conclude the district court erred.0
V.
In sum, the government must prove Hayden knew or
deliberately disregarded the fact that he was under an
0
Any use of expert testimony on remand must, of course, comply
with Federal Rule of Evidence 704(b) (barring expert from
offering "an opinion or inference as to whether the defendant did
or did not have the mental state or condition constituting an
element of the crime charged").
21
information and that his purchase of a firearm was unlawful.
Because the excluded evidence had a direct bearing on willfulness
and was improperly excluded, we will reverse and remand.
22