People of Michigan v. Gerald Magnant ( 2021 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
PEOPLE v MAGNANT
PEOPLE v DAVIS
Docket Nos. 159371 and 159373. Argued on application for leave to appeal January 6,
2021. Decided July 30, 2021.
Gerald Magnant and John F. Davis were each charged with violating MCL 205.428(3) of
the Tobacco Products Tax Act (the TPTA), MCL 205.421 et seq., for transporting 3,000 or more
cigarettes without the transporter’s license required by MCL 205.423(1). Defendants were
nonsupervisory employees of the Keweenaw Bay Indian Community (KBIC). On December 11,
2015, the Michigan State Police pulled over a KBIC-owned pickup truck for speeding. The driver,
Davis, consented to a search of the utility trailer attached to the truck, representing to the trooper
that it contained “supplies” and “chips.” The trailer actually contained 56 cases holding over
600,000 “Seneca” cigarettes marked with KBIC stamps but not with the Michigan Department of
Treasury tax stamps required by the TPTA. The trooper told Davis, “[Y]ou knew that stuff was
back there,” to which Davis replied, “I’m just a worker.” The truck’s passenger, Magnant,
admitted that he had helped load the trailer. The parties stipulated that Davis, Magnant, and the
KBIC were not licensed to transport tobacco products under the TPTA. Davis and Magnant were
each charged with violating MCL 205.428(3), and after a preliminary examination, the district
court bound the case over as to each defendant. In the circuit court, defendants jointly moved to
quash the bindover, arguing that MCL 205.428(3) required the prosecution to show that defendants
knowingly violated the TPTA licensing requirement. Defendants also jointly moved to dismiss
the charges, arguing that the relevant statutes are unconstitutionally vague because they do not
give individual employees, as opposed to businesses, adequate notice that they are subject to the
TPTA licensing requirement for transporting cigarettes. The Ingham Circuit Court, Louise
Alderson, J., denied defendants’ motion to quash the bindover, ruling that the prosecution need
only show that defendants knowingly transported 3,000 or more cigarettes and that defendants
were not licensed, irrespective of their knowledge of the licensing requirement. The circuit court
also denied defendants’ motion to dismiss, ruling that the language of the TPTA provided adequate
notice that an “individual” can be a “transporter” subject to the licensing requirement. The Court
of Appeals consolidated the cases on appeal. In an unpublished opinion issued on February 5,
2019 (Docket Nos. 341621 and 341627), the Court of Appeals, SWARTZLE, P.J., and SAWYER, J.
(RONAYNE KRAUSE, J., dissenting), affirmed, holding that because MCL 205.428(3) is a general-
intent offense, the only criminal intent the prosecution must show is the actor’s knowledge that
they possessed 3,000 or more cigarettes. The Court of Appeals also held that the TPTA provides
sufficient notice to individual employees that they must be licensed if they are “transporters” of
tobacco products. Defendants each sought leave to appeal in the Supreme Court, and the Supreme
Court ordered consolidated oral argument on the applications. 505 Mich 1000 (2020).
In an opinion by Justice WELCH, joined by Chief Justice MCCORMACK and Justices
BERNSTEIN and CLEMENT, the Supreme Court, in lieu of granting leave to appeal, held:
MCL 205.428(3) of the Tobacco Products Tax Act, MCL 205.421 et seq., applies to
nonsupervisory employees and is not unconstitutionally vague. MCL 205.428(3) requires the
prosecution to show that defendants (1) knew they were transporting 3,000 or more cigarettes and
(2) knew of facts that conferred “transporter” status or knew of the specific licensing requirement
of MCL 205.423(1). In this case, the district court’s bindover decision was invalid because the
district court did not consider whether each defendant in this case knew facts that, at a minimum,
bestowed transporter status on them.
1. MCL 205.428(3) provides, in relevant part, that a person who possesses, acquires,
transports, or offers for sale contrary to the TPTA 3,000 or more cigarettes is guilty of a felony,
punishable by a fine of not more than $50,000 or imprisonment for not more than five years, or
both. MCL 205.423(1) provides, in relevant part, that a person shall not purchase, possess, acquire
for resale, or sell a tobacco product as a transporter in this state unless licensed to do so. MCL
205.422(y) defines “transporter” as a person importing or transporting into this state, or
transporting in this state, a tobacco product obtained from a source located outside this state, or
from any person not duly licensed under this act. MCL 205.422(y) also provides that a transporter
does not include an interstate commerce carrier licensed by the Interstate Commerce Commission
(the ICC) to carry commodities in interstate commerce or a licensee maintaining a warehouse or
place of business outside of this state if the warehouse or place of business is licensed under this
act. Furthermore, MCL 205.422(o) provides that a “person” is an individual, partnership,
fiduciary, association, limited-liability company, corporation, or other legal entity. Therefore, an
individual is a transporter if the individual is engaged in conduct described in MCL 205.422(y).
The TPTA thus provides clear notice of when an individual, including a nonsupervisory employee,
holds the status of “transporter” and, consequently, when the individual is subject to the licensing
requirement of MCL 205.423(1). Accordingly, the Court of Appeals did not err by holding that
MCL 205.428(3) applies to nonsupervisory employees and that the statute is not unconstitutionally
vague. However, the Court of Appeals erred to the extent it held that an individual must have a
personal transporter license any time the individual transports large quantities of tobacco. Under
the plain language of MCL 205.422(y), an individual qualifies as a “transporter”—and thus is
subject to the transporter licensing requirement of MCL 205.423(1)—only if the individual is
transporting tobacco from “a source located outside this state” or “from any person not duly
licensed under this act” and the individual is not an ICC licensee or an out-of-state licensee under
the TPTA. It is not the quantity of tobacco transported but the source of the tobacco that confers
“transporter” status and the transporter licensing requirement. Therefore, under the plain language
of MCL 205.422(y), when an individual employee’s source of tobacco is a duly licensed employer,
the individual employee is not a “transporter” and does not need a personal transporter license.
2. There is a longstanding presumption, traceable to the common law, that unless otherwise
stated in a statute, a Legislature intends to require a defendant to possess a culpable mental state
regarding each of the statutory elements that criminalize otherwise innocent conduct. In this case,
the Legislature did not intend MCL 205.428(3) to impose strict liability. However, the text of
MCL 205.428(3) provides no express criminal-intent provision and, therefore, no express guidance
as to what wrongful state of mind is required or which elements of the offense it must be directed
toward. Rehaif v United States, 588 US at ___; 139 S Ct 2191 (2019), provided the appropriate
framework for resolution of this issue. Rehaif held that, under a statute prohibiting undocumented
immigrants from possessing firearms, the defendant’s immigration status was the crucial element
separating innocent from wrongful conduct. Similarly, status is the crucial element separating
innocent from wrongful conduct under MCL 205.428(3) as charged in this case. Because the
prosecution had to show that a person charged with violating MCL 205.428(3) knew the facts that
made his or her conduct illegal, a violation of MCL 205.428(3) requires, at a minimum, proof that
the actor knew facts that conferred a status that subjected him or her to the regulatory requirements
of the TPTA. Because defendants were charged with acting as “transporters” and because there
was no allegation that they fell into any other category of “person” under the TPTA, MCL
205.428(3) required the prosecution to show that defendants (1) knew they were transporting 3,000
or more cigarettes and (2) knew of facts that conferred “transporter” status or knew of the specific
licensing requirement of MCL 205.423(1). Under MCL 205.422(y), an individual qualifies as a
“transporter,” and thus is subject to the licensing requirement, only if the individual is transporting
tobacco from “a source located outside this state” or “from any person not duly licensed under this
act” and the individual is not a licensed ICC carrier or an out-of-state licensee under the TPTA.
These are the facts that confer transporter status and, therefore, the facts that an individual must
know to be liable for violating MCL 205.428(3). This holding does not require a showing that
defendants were aware of the particular statutes that applied to their conduct or, specifically, that
they were required to be licensed, although either would be sufficient to establish that defendants
knew facts that made their conduct unlawful. Rather, this holding requires a minimal showing that
defendants knew that they were transporting a tobacco product obtained from a source located
outside this state or from a person not duly licensed under the TPTA. In this case, the district court
bound defendants over but did not consider whether each defendant knew facts that, at a minimum,
bestowed transporter status on them. A bindover decision is invalid unless it is supported by
evidence as to each element of the charged offense. Therefore, Part II(A) of the Court of Appeals
judgment was reversed, and defendants’ joint motion to quash the district court’s bindover decision
was granted.
Court of Appeals judgment affirmed to the extent it held that MCL 205.428(3) applies to
nonsupervisory employees and is not unconstitutionally vague, Court of Appeals judgment
reversed to the extent it upheld the district court’s bindover decision, and defendants’ joint motion
to quash the district court’s bindover decision granted.
Justice CAVANAGH, concurring in the result, agreed with the Court’s decision to affirm in
part and reverse in part the judgment of the Court of Appeals and quash the district court’s bindover
decision; however, because the parties agreed that the mens rea of “knowingly” applied to each
element of the offense, she would have resolved the matter on that basis and held that a violation
of MCL 205.428(3) requires proof that the actor knew that his or her conduct violated the TPTA.
She agreed with Justice ZAHRA that the language “contrary to [the TPTA]” in MCL 205.428(3)
constituted an element of the offense, but she disagreed with Justice ZAHRA that a proper
interpretation of MCL 205.428(3) required substituting language from elsewhere in the TPTA.
The language “contrary to [the TPTA]” incorporates the regulatory scheme so that if a person
knowingly possesses, acquires, transports, or offers for sale 3,000 or more cigarettes in any way
that violates the TPTA, that person is guilty of a felony under MCL 205.428(3). But the lack of a
license is not the only way in which cigarettes may be possessed, acquired, transported, or offered
for sale contrary to the TPTA; the TPTA is a complicated regulatory scheme, and there are many
ways to run afoul of it. Accordingly, Justice CAVANAGH concurred in the majority’s result.
Justice ZAHRA, dissenting, disagreed with the Court’s decision to reverse Part II(A) of the
judgment of the Court of Appeals and quash the district court’s bindover decision; he would have
affirmed the Court of Appeals’ decision and remanded to the circuit court for further proceedings.
The “contrary to [the TPTA]” language in MCL 205.428(3) had a purpose: it referred to a license.
Given this language, in addition to proving the first and third express elements of MCL 205.428(3),
the prosecution also had to prove that the defendant was acting contrary to a separate provision of
the TPTA. MCL 205.422(y), which defines “transporter,” in no way created a status on its own,
as the majority suggested. By its plain terms, MCL 205.422(y) describes conduct in which a
person who has a transporter license may lawfully engage. But a person who has never sought a
transporter license does not spontaneously become a “transporter” by engaging in this described
conduct, which is unlawful without having first acquired a license. And because defendants in this
case never sought or acquired a license, the majority’s argument lacked the requisite legal
foundation to draw a comparison between this case and Rehaif. Further, the majority improperly
construed the phrase “contrary to” as requiring the prosecution to establish that defendants knew
of “status” facts that would apparently prompt a person to be aware that a transporter license is
required. The majority essentially requires the prosecution to establish, in regard to the second
element, a “willful” violation of MCL 205.428(3), but nothing in the text of MCL 205.428(3) or
any common-law presumption of criminal mens rea justified this conclusion. Accordingly, Justice
ZAHRA would have affirmed the Court of Appeals judgment and remanded this case to the circuit
court.
Justice VIVIANO, dissenting, agreed with the majority’s construction of the elements of
MCL 205.428(3) and agreed that this statutory crime is not a strict-liability offense, but he
disagreed that a mens rea requirement attaches to the disputed element requiring a license to
transport cigarettes in certain circumstances. Justice VIVIANO would have concluded that the
presumption in favor of applying a mens rea requirement to each element has been overcome and
that the Legislature did not intend to require knowledge of the attendant circumstances set forth in
the definition of transporter, i.e., whether the tobacco is obtained from an out-of-state or unlicensed
source. MCL 205.428(3) contains no express mens rea requirement and is not a codification of
any common-law offense to which a mens rea requirement would normally attach. It is, instead,
a regulatory tax statute, and when regulated persons or entities fail to comply with that type of
statute, they usually do so at their own peril. Although the offense, as a whole, is not one of strict
liability, the transporter element is regulatory in nature, and requiring the prosecution to prove
knowledge with regard to this element would be nearly impossible. Accordingly, Justice VIVIANO
would have held that MCL 205.428(3) does not require the prosecution to prove knowledge of the
circumstances that make a person a “transporter.”
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
OPINION Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
FILED July 30, 2021
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 159371
GERALD MAGNANT,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 159373
JOHN FRANCIS DAVIS,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
WELCH, J.
This case involves the interpretation and application of the Tobacco Products Tax
Act (the TPTA), MCL 205.421 et seq. Defendants were charged with violating the TPTA
because they did not have a license to transport cigarettes. The issue in this case is whether
the TPTA’s licensing requirement for a “person” who is a “transporter” of tobacco applies
to a nonsupervisory employee of an unlicensed entity that transports tobacco. If we find
that an individual license is required under the TPTA, we then must determine how
criminal intent applies to the TPTA licensing requirements in order to hold such an
employee criminally responsible under MCL 205.428(3).
We hold that an individual employee is a “transporter,” who must be licensed to
transport a regulated quantity of tobacco in Michigan, when (a) the tobacco is obtained
from an out-of-state source or from a source not duly licensed under the TPTA, and (b) the
individual is not licensed by the Interstate Commerce Commission (the ICC) or an out-of-
state operator of a business or warehouse licensed under the TPTA. MCL 205.422(y);
MCL 205.423(1). An individual employee who takes possession of tobacco from her or
his duly licensed (as provided by the TPTA) employer is not a “transporter” and does not
need a personal transporter license. MCL 205.422(y).
We further hold that while an individual acting as a “transporter” need not have
specific awareness of the law that creates the licensing requirement, a conviction for
violating MCL 205.428(3) must, at a minimum, be supported by a showing that the
individual (1) knew he or she was transporting a regulated amount of cigarettes and (2)
knew of facts that conferred “transporter” status upon him or her. This knowledge-of-
status requirement is satisfied when the person is aware that the cigarettes were obtained
from an out-of-state source or from a source not duly licensed under the TPTA. In this
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case, the prosecution failed to present any evidence establishing or implying that
defendants were aware of facts that conferred transporter status on them. Accordingly, we
affirm in part and reverse in part the opinion of the Court of Appeals and grant defendants’
joint motion to quash the district court’s bindover decision.
I. FACTS AND PROCEDURAL HISTORY
Defendants Gerald Magnant and John Francis Davis were nonsupervisory
employees of the Keweenaw Bay Indian Community (KBIC). The KBIC, a federally
recognized Native American tribe, has previously challenged the state of Michigan’s
authority to tax tobacco products sold by the tribe to nontribal consumers. See Keweenaw
Bay Indian Community v Rising, 477 F 3d 881 (CA 6, 2007). On December 11, 2015, the
Michigan State Police pulled over a KBIC-owned pickup truck for speeding on US
Highway 41. The traffic stop was captured on video. The driver, defendant Davis,
consented to a search of the utility trailer attached to the truck, representing to the trooper
that it contained “supplies” and “chips.” The trailer actually contained 56 cases holding
over 600,000 “Seneca” cigarettes marked with KBIC stamps but not with the Michigan
Department of Treasury tax stamps required by the TPTA. The trooper told Davis, “[Y]ou
knew that stuff was back there,” to which Davis replied, “I’m just a worker.” The truck’s
passenger, defendant Magnant, admitted that he had helped load the trailer. The parties
have stipulated that Davis, Magnant, and the KBIC were not licensed to transport tobacco
products under the TPTA.
Davis and Magnant were each charged with violating MCL 205.428(3) for
transporting 3,000 or more cigarettes without the transporter’s license required by
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MCL 205.423(1). After a preliminary examination, the district court bound the case over
as to each defendant. In the circuit court, defendants jointly moved to quash the bindover,
arguing that MCL 205.428(3) required the prosecution to show that defendants knowingly
violated the TPTA licensing requirement. Defendants also jointly moved to dismiss the
charges, arguing that the relevant statutes are unconstitutionally vague because they do not
give individual employees, as opposed to businesses, adequate notice that they are subject
to the TPTA licensing requirement for transporting cigarettes.
The circuit court denied defendants’ motion to quash the bindover, ruling that the
prosecution need only show that defendants knowingly transported 3,000 or more
cigarettes and that defendants were not licensed, irrespective of their knowledge of the
licensing requirement. The circuit court also denied defendants’ motion to dismiss, ruling
that the language of the TPTA provided adequate notice that an “individual” can be a
“transporter” subject to the licensing requirement.
The Court of Appeals consolidated defendants’ cases on appeal and affirmed in a
split, unpublished opinion. The majority held that (1) because MCL 205.428(3) is a
general-intent offense, the only criminal intent the prosecution must show is the actor’s
knowledge that they possessed 3,000 or more cigarettes, and (2) the TPTA provides
sufficient notice to individual employees that they must be licensed if they are
“transporters” of tobacco products. People v Davis, unpublished per curiam opinion of the
Court of Appeals, issued February 5, 2019 (Docket Nos. 341621 and 341627), pp 4, 7.
Judge RONAYNE KRAUSE dissented, opining that the TPTA’s licensing requirement did
not apply to low-level, nonsupervisory employees like defendants. Id. (RONAYNE
KRAUSE, J., dissenting) at 5. She opined that even if the licensing requirement did apply
4
to nonsupervisory employees, the prosecution had the burden to show that defendants knew
“both that they were transporting cigarettes, and at least generally that they were doing so
in violation of the TPTA.” Id. at 8.
Defendants each sought leave to appeal, and this Court ordered consolidated oral
argument on the applications. People v Magnant, 505 Mich 1000 (2020). We directed the
parties to address “(1) whether MCL 205.428(3) requires proof that the defendants knew
that they were transporting cigarettes in a manner ‘contrary to’ [the TPTA]; (2) whether
nonsupervisory employees fall within the definition of ‘transporter’ under MCL
205.422(y); and (3) if so, whether the TPTA’s definition of ‘transporter’ satisfies due
process by putting the defendants on fair notice of the conduct that would subject them to
punishment.” Id. (citations omitted).
II. STANDARD OF REVIEW
A district court’s bindover decision must be supported by probable cause to believe
that the defendant committed a felony. People v Shami, 501 Mich 243, 250; 912 NW2d
526 (2018). This requires evidence as to each element of the charged offense that would
“cause a person of ordinary prudence and caution to conscientiously entertain a reasonable
belief of the defendant’s guilt.” Id. at 250-251 (quotation marks and citation omitted). This
Court reviews a district court’s bindover decision for an abuse of discretion, which occurs
when the district court’s decision falls outside the range of principled outcomes. Id. at 251.
“To the extent the lower court’s ruling is based on questions of law, however, it is reviewed
de novo.” People v Hall, 499 Mich 446, 451-452; 884 NW2d 561 (2016). “Questions of
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constitutional and statutory interpretation present questions of law reviewed de novo.” Id.
at 452.
III. STATUTORY TEXT
The Legislature enacted the TPTA “to provide for a tax upon the sale and
distribution of tobacco products; to regulate and license manufacturers, wholesalers,
secondary wholesalers, vending machine operators, unclassified acquirers, transportation
companies, transporters, and retailers of tobacco products; . . . [and] to prescribe penalties
and provide remedies for the violation of this act[.]” 1993 PA 327, title. The TPTA “is at
its heart a revenue statute, designed to assure that tobacco taxes levied in support of
Michigan schools are not evaded.” People v Nasir, 255 Mich App 38, 42; 662 NW2d 29
(2003). This Court’s goal in interpreting a statute is to effectuate the Legislature’s intent.
Shami, 501 Mich at 253.
Defendants were charged with violating a criminal provision of the TPTA, which
provides, in relevant part:
A person who possesses, acquires, transports, or offers for sale
contrary to this act 3,000 or more cigarettes . . . is guilty of a felony,
punishable by a fine of not more than $50,000.00 or imprisonment for not
more than 5 years, or both. [MCL 205.428(3).]
The prosecution alleges that defendants acted “contrary to” the TPTA because they
violated MCL 205.423(1), which provides, in relevant part, “[A] person shall not purchase,
possess, acquire for resale, or sell a tobacco product as a . . . transporter in this state unless
licensed to do so.” The TPTA defines a “transporter” as follows:
“Transporter” means a person importing or transporting into this state,
or transporting in this state, a tobacco product obtained from a source located
outside this state, or from any person not duly licensed under this act.
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Transporter does not include an interstate commerce carrier licensed by the
[ICC] to carry commodities in interstate commerce, or a licensee maintaining
a warehouse or place of business outside of this state if the warehouse or
place of business is licensed under this act. [MCL 205.422(y).]
IV. APPLICATION TO INDIVIDUAL EMPLOYEES
Defendants argue that the “transporter” licensing requirement of MCL 205.423(1)
does not apply to nonsupervisory employees of a business or other entity that transports
tobacco. Alternatively, defendants argue that if the licensing requirement does apply to
nonsupervisory employees, the TPTA is unconstitutionally vague for not providing
sufficient notice of when an employee must obtain a personal transporter license to
transport tobacco for their employer. We disagree on both points.
The Due Process Clauses of the United States and Michigan Constitutions require a
criminal statute to provide fair notice “of the conduct that will subject [a person] to
punishment” and “the severity of the penalty that a State may impose.” Hall, 499 Mich at
460-461 (quotation marks and citation omitted). The inquiry is whether the “statute gives
a person of ordinary intelligence a reasonable opportunity to know what conduct is
prohibited, and also whether the statute provides an explicit standard for those who apply
it.” People v Harris, 495 Mich 120, 134; 845 NW2d 477 (2014).
Under MCL 205.422(y), the term “transporter” includes a “person . . . transporting
in this state, a tobacco product obtained from a source located outside this state, or from
any person not duly licensed under” the TPTA. In turn, MCL 205.422(o) provides that a
“person” is “an individual, partnership, fiduciary, association, limited liability company,
corporation, or other legal entity.” (Emphasis added.) Therefore, with express exceptions
7
not relevant here, 1 “an individual” is a “transporter” if the individual is engaged in conduct
described in MCL 205.422(y). There are no modifiers attached to the term “individual”
that indicate exclusion of nonsupervisory employees. MCL 205.422(o). The TPTA thus
provides clear notice of when an individual, including a nonsupervisory employee, holds
the status of “transporter” and, consequently, when the individual is subject to the licensing
requirement of MCL 205.423(1). Therefore, the Court of Appeals majority did not err by
holding that MCL 205.428(3) applies to nonsupervisory employees and that the statute is
not unconstitutionally vague.
The Court of Appeals dissent opined that the Legislature did not intend the
definition of “transporter” to apply to low-level employees of a company transporting
tobacco products. The dissent relied on People v Assy, 316 Mich App 302, 310-311; 891
NW2d 280 (2016), in which the Court of Appeals determined that the TPTA’s definition
of “retailer” was only intended to apply to “individuals with some degree of meaningful
control over the operation.” Davis (RONAYNE KRAUSE, J., dissenting), unpub op at 4.
However, the Assy panel’s conclusion was predicated upon the unique definition of
“retailer”—“a person other than a transportation company who operates a place of business
for the purpose of making sales of a tobacco product at retail.” MCL 205.422(q) (emphasis
added). The Assy panel reasoned, “[I]n ordinary speech, one does not normally refer to a
cashier or stocker as the operator of a business.” Assy, 316 Mich App at 310. Therefore,
the panel concluded that the Legislature’s use of the phrase “operates a place of business”
means “that the person or entity who actually directs or manages the day-to-day operations
1
The definition of “transporter” excludes persons licensed by the ICC and persons who
maintain a TPTA-licensed out-of-state warehouse or place of business. MCL 205.422(y).
8
is the party responsible for ensuring compliance with the [TPTA].” Id. at 311. There is no
analogous language in the definition of “transporter” to indicate that a “person” must
“operate[] a place of business” or operate the company that is transporting cigarettes for
the definition to apply. MCL 205.422(y).
Yet the Court of Appeals majority also held that an individual employee must have
a personal transporter license any time she or he transports 3,000 or more cigarettes, even
for a licensed employer. Davis, unpub op at 6 (“Thus, the statutory language of MCL
205.423(1) and MCL 205.428(3) makes clear that an individual possessing 3,000 or more
cigarettes for transport, without having a license to do so, is guilty of a felony.”). At the
preliminary examination, Angela Littlejohn, the manager of the Department of Treasury’s
Tobacco Tax Unit, and Doug Miller, the department’s administrator of special taxes,
testified that, under the TPTA, an employee would not need their own transporter license
when transporting tobacco within Michigan for a licensed employer. Id. at 6-7. The Court
of Appeals majority noted that “departmental interpretations of statutes, although entitled
to respectful consideration, are not binding on [the Court of Appeals].” Id. at 7. The
majority held that “the plain language of the statute indicates that an individual violates the
TPTA by possessing for transport large quantities of tobacco without a license.” Id. It
added, “[E]ven if the department’s interpretations are credited, the statute makes clear that
someone—either the individual or the individual’s employer—must have a license
authorizing the possession for transport of a large quantity of tobacco.” Id. Therefore, the
majority concluded that the statute was not unconstitutionally vague.
We clarify that only the Court of Appeals majority’s alternative holding is correct
as to this issue. The majority erred to the extent it held that an individual must have a
9
personal transporter license any time the individual “transport[s] large quantities of
tobacco . . . .” Id. Under the plain language of MCL 205.422(y), an individual qualifies
as a “transporter”—and thus is subject to the transporter licensing requirement of MCL
205.423(1)—only if the individual is transporting tobacco from “a source located outside
this state” or “from any person not duly licensed under this act” and the individual is not
an ICC licensee or an out-of-state licensee under the TPTA. It is not the quantity of tobacco
transported but the source of the tobacco that confers “transporter” status and the
transporter licensing requirement. Therefore, under the plain language of MCL
205.422(y), when an individual employee’s source of tobacco is a duly licensed employer,
the individual employee is not a “transporter” and does not need a personal transporter
license.
V. CRIMINAL INTENT
We next address the criminal intent that must be established to hold an individual
liable under MCL 205.428(3). Defendants argue that MCL 205.428(3) requires the
prosecution to show not only that defendants knew they were transporting 3,000 or more
cigarettes, but also that defendants knew they were transporting cigarettes “contrary to [the
TPTA] . . . .” In other words, defendants argue that there must be evidence that defendants
knew of the transporter licensing requirement under MCL 205.423(1). The prosecution
responds that because MCL 205.428(3) does not expressly provide a criminal-intent
element, it is a general-intent offense that only requires a showing that defendants
“inten[ded] to do the illegal act . . . .” People v Janes, 302 Mich App 34, 41; 836 NW2d
883 (2013). In this case, the prosecution argues that transporting 3,000 or more cigarettes
10
is the only “illegal act” a defendant must intentionally commit to violate the statute.
Because “ignorance of the law is no defense,” the prosecution claims that it is not required
to show that defendants knew of the licensing requirement. Neither party is entirely
correct.
A. THE PRESUMPTION OF A CRIMINAL-INTENT REQUIREMENT
To review, MCL 205.428(3) provides, in relevant part:
A person who possesses, acquires, transports, or offers for sale
contrary to this act 3,000 or more cigarettes . . . is guilty of a felony,
punishable by a fine of not more than $50,000.00 or imprisonment for not
more than 5 years, or both.
We start with the “longstanding presumption, traceable to the common law,” that unless
otherwise stated in a statute, a Legislature “intends to require a defendant to possess a
culpable mental state regarding each of the statutory elements that criminalize otherwise
innocent conduct.” Rehaif v United States, 588 US ___, ___; 139 S Ct 2191, 2195; 204 L
Ed 2d 594 (2019) (quotation marks and citation omitted); People v Tombs, 472 Mich 446,
451; 697 NW2d 494 (2005) (holding that the presumption applies to acts of the Michigan
Legislature). We agree with the parties that the Legislature did not intend MCL 205.428(3)
to impose strict liability. However, the text of the statute provides no express criminal-
intent provision and, therefore, no express guidance as to what wrongful state of mind is
required or which elements of the offense it must be directed toward. 2
2
MCL 205.428(11), which was added to the TPTA by 2008 PA 458, criminalizes the
conduct of a person who “knowingly” transports 600 to 1,199 cigarettes contrary to the
TPTA. But very similar provisions dealing with lower amounts of cigarettes, MCL
205.428(12) (less than 600 cigarettes), and higher amounts, MCL 205.428(4) (1,200 to
2,999 cigarettes), like MCL 205.428(3), do not contain the word “knowingly.” It is
11
1. THE COURT OF APPEALS’ ANALYSIS
The Court of Appeals majority followed the path urged by the prosecution. See
Davis, unpub op at 3-6. Applying the rule of Janes, 302 Mich App at 41, the Court of
Appeals stated that “ ‘[c]riminal intent can be one of two types: the intent to do the illegal
act alone (general criminal intent) or an act done with some intent beyond the doing of the
act itself (specific criminal intent).’ ” Davis, unpub op at 3. The majority then looked to
Nasir, 255 Mich App 38, to determine that MCL 205.428(3) is a general-intent offense that
only requires intent to do the illegal act. Davis, unpub op at 3-6. In Nasir, the Court of
Appeals addressed the criminal-intent element of MCL 205.428(6), which provides, in
relevant part:
A person who manufactures, possesses, or uses a stamp or
manufactures, possesses, or uses a counterfeit stamp or writing or device
intended to replicate a stamp without authorization of the department . . . is
guilty of a felony . . . .
The Nasir panel determined that the statute created a general-intent offense that
required the prosecution to prove
(1) the defendant possessed or used (2) a counterfeit stamp, or a writing or
device intended to replicate a stamp, (3) that the defendant possessed or used
the counterfeit tax stamp, or a writing or device intended to replicate a stamp,
with knowledge that the stamp, writing, or device was not an authentic tax
stamp, and (4) that the defendant acted without authorization of the Michigan
Department of Treasury. [Nasir, 255 Mich App at 46.]
possible that the Legislature intended to differentiate the criminal intent required for
possession or transport of 600 to 1,199 cigarettes from that required for any other amount.
But we cannot identify the presence of any “policy underlying such a construction” that is
“so obvious [or] so compelling that we must assume, in the absence of any discussion of
this issue in the legislative history, that [the Legislature] did enact such a statute.” Liparota
v United States, 471 US 419, 430; 105 S Ct 2084; 85 L Ed 2d 434 (1985).
12
The Nasir panel continued, “We do not believe that the Legislature intended that the
offense contain a specific intent element, nor do we believe that a defendant need act with
knowledge that the defendant does so without the authorization of the Michigan
Department of Treasury.” Id.The Court of Appeals majority in the present case purported to apply the reasoning
of Nasir to MCL 205.428(3):
“Indeed, this Court in Nasir explicitly rejected the proposition that the
offense in MCL 205.428(6) contained a specific intent element and
concluded that the prosecutor did not have to prove that the defendant knew
that he lacked the authorization of the Michigan Department of Treasury.
Nasir, 255 Mich App at 46. Accordingly, defendant’s suggestion below that
Nasir should be read to require proof in this case that defendant knew he was
required to have a license to transport tobacco products and that he
specifically intended to violate the TPTA is utterly without any support from
the holding in Nasir, in addition to lacking any basis in the language of MCL
205.428(3).” [Davis, unpub op at 5, quoting People v Shouman, unpublished
per curiam opinion of the Court of Appeals, issued October 4, 2016 (Docket
No. 330383), p 6.]
In short, the Court of Appeals majority relied on the distinction between general-intent and
specific-intent offenses to determine that because MCL 205.428(3) lacks an express
specific-intent element, the only criminal intent the statute requires is a defendant’s
knowledge that he or she is transporting 3,000 or more cigarettes. Davis, unpub op at 5.
2. THE CRIMINAL-INTENT PRESUMPTION AND THE GENERAL-
INTENT/SPECIFIC-INTENT DISTINCTION
We are mindful, however, of the United States Supreme Court’s warning of the
dangers posed by overreliance on the general-intent/specific-intent distinction. See United
States v Bailey, 444 US 394, 403; 100 S Ct 624; 62 L Ed 2d 575 (1980) (“At common law,
crimes generally were classified as requiring either ‘general intent’ or ‘specific intent.’
13
This venerable distinction, however, has been the source of a good deal of confusion.”).
The problem is that “even time-honored common-law crimes consist of several elements,
and complex statutorily defined crimes exhibit this characteristic to an even greater
degree.” Id. at 405. The conclusion that a statute requires proof of “intent to do the illegal
act alone (general criminal intent)” but not “some intent beyond the doing of the act itself
(specific criminal intent),” Janes, 302 Mich App at 41, does not settle which elements of a
complex offense are part of the “criminal act.” The Model Penal Code, § 2.02(4) presumes
that, in the absence of an express legislative statement to the contrary, criminal intent must
be established as to each material element of the offense. Bailey, 444 US at 406. However,
Bailey instructs that mechanical application of that presumption, like mechanical
application of the general-intent/specific-intent distinction, might override legislative
intent. Id. at 406-407. No bright-line categorical rule can substitute for careful analysis of
the statute’s purpose and context. Id.
3. CRIMINAL INTENT AS KNOWLEDGE OF FACTS THAT MAKE
CONDUCT ILLEGAL
Defendants are accused of committing an offense that consists of one simple
voluntary act (transporting over 3,000 cigarettes), but that act has complicated attendant
circumstances (a licensing requirement dependent on complex definitions of “transporter”
and “person”). Under such a statute, an actor’s intent to perform the voluntary act might
not constitute criminal intent at all if the act is only criminal because of attendant
circumstances of which the actor is unaware. Staples v United States, 511 US 600; 114 S
Ct 1793; 128 L Ed 2d 608 (1994), is instructive on this point. Staples concerned a federal
statute that prohibited possession of an automatic firearm but contained no express
14
criminal-intent provision. Id. at 605. The trial court ruled that knowledge of possessing a
firearm was required but knowledge that the firearm was automatic was not required. Id.
at 604. The United States Supreme Court reversed and held that the prosecution must prove
that the defendant knew his weapon was automatic because the criminal-intent presumption
required the defendant to “know the facts that make his conduct illegal.” Id. at 605; see
also United States v X-Citement Video, Inc, 513 US 64, 72; 115 S Ct 464; 130 L Ed 2d 372(1994) (“[T]he presumption in favor of a scienter requirement should apply to each of the
statutory elements that criminalize otherwise innocent conduct.”). The Court explained,
“[W]e essentially have relied on the nature of the statute and the particular character of the
items regulated to determine whether congressional silence concerning the mental element
of the offense should be interpreted as dispensing with conventional mens rea
requirements.” Staples, 511 US at 607. The Court reasoned that firearms in general are
not of the same class as hand grenades and narcotics. Id. at 608-610. Firearms, although
dangerous, are commonplace and often possessed lawfully, whereas “one would hardly be
surprised to learn that possession of hand grenades is not an innocent act.” Id. at 609(quotation marks and citation omitted). The Court explained:
But that an item is “dangerous,” in some general sense, does not necessarily
suggest, as the Government seems to assume, that it is not also entirely
innocent. Even dangerous items can, in some cases, be so commonplace and
generally available that we would not consider them to alert individuals to
the likelihood of strict regulation. As suggested above, despite their potential
for harm, guns generally can be owned in perfect innocence. [Id. at 611.]
Cigarettes, like firearms, are commonplace and often possessed lawfully, unlike
hand grenades and dangerous narcotics. For this reason, we follow Staples in
distinguishing United States v Balint, 258 US 250; 42 S Ct 301; 66 L Ed 604 (1922)
15
(holding that a defendant need not specifically know that opium and cocaine are strictly
regulated to be liable for selling them), and United States v Freed, 401 US 601; 91 S Ct
1112; 28 L Ed 2d 356 (1971) (holding that a defendant need not know that unregistered
hand grenades are unregistered to be liable for possessing them). 3 Indeed, an individual
may lawfully possess large quantities of cigarettes in their own home for personal use
without triggering the licensing requirement of MCL 205.423(1). Similarly, 3,000 or more
cigarettes may be transported lawfully under the TPTA if the transporter is licensed.
Because it is not the act of transporting 3,000 or more cigarettes alone that makes an actor’s
conduct lawful or unlawful under MCL 205.428(3), an actor’s knowledge of the fact that
he or she is transporting 3,000 or more cigarettes—taken alone, without reference to the
actor’s knowledge of the licensing requirement or of the actor’s transporter status—is
insufficient to establish that the actor “[knew] the facts that make his conduct illegal.”
Staples, 511 US at 605. Therefore, the Court of Appeals majority’s interpretation of MCL
205.428(3) is inconsistent with the presumption that the Legislature intended to impose a
criminal-intent requirement.
3
Justice VIVIANO, like the prosecution in Staples, opines that “this case fits in a line of
precedent concerning what [the United States Supreme Court has] termed ‘public welfare’
or ‘regulatory’ offenses, in which we have understood Congress to impose a form of strict
criminal liability through statutes that do not require the defendant to know the facts that
make his conduct illegal.” Staples, 511 US at 606. Again, we follow Staples in noting that
“the cases that first defined the concept of the public welfare offense almost uniformly
involved statutes that provided for only light penalties such as fines or short jail sentences,
not imprisonment in the state penitentiary.” Id. at 616. We believe that “[t]he potentially
harsh penalty attached to violation” of MCL 205.428(3)—$50,000 in fines or up to 5 years’
imprisonment—“confirms our reading of the Act.” Id.16
The Court of Appeals majority overlooked a crucial aspect of the Nasir decision
regarding counterfeit stamps under the TPTA. Nasir did not hold that because MCL
205.428(6) is a general-intent crime, the prosecution must only show that the defendant
knowingly used a stamp that, known or not to the defendant, happened to be counterfeit.
Rather, Nasir held that the existence of general intent to do the illegal act required the
defendant to know that he was using a stamp and that the stamp was counterfeit. Nasir,
255 Mich App at 45-46. The counterfeit nature of the stamp is what makes its use illegal.
Therefore, the actor must know that fact in order to intend the illegal act. Id.; Staples, 511
US at 605.
4. KNOWLEDGE-OF-THE-LAW REQUIREMENT
The requirement that an actor must “know the facts that make his conduct illegal”
does not, as defendants argue in this case, mean that the actor must know the specific law
that makes his conduct illegal. Defendants point to Liparota v United States, 471 US 419,
423; 105 S Ct 2084; 85 L Ed 2d 434 (1985), in which the United States Supreme Court
interpreted the criminal-intent requirement of a federal prohibition against the acquisition,
possession, or use of food stamps “in a manner not authorized by statute or regulations.”
The government argued that the offense had no criminal-intent requirement. Id. The
petitioner argued that the government had to prove that he knowingly acted in “a manner
not authorized by statute or regulations.” Id. The Supreme Court held that the petitioner’s
construction—that the defendant must know he or she is violating the law—was
“particularly appropriate where, as here, to interpret the statute otherwise would be to
criminalize a broad range of apparently innocent conduct.” Id. at 426 (emphasis added).
17
The Court reasoned that the lack of a knowledge-of-the-law requirement would make a
criminal of a “food stamp recipient who, for example, used stamps to purchase food from
a store that, unknown to him, charged higher than normal prices to food stamp program
participants.” Id. The Court added, “Such a reading would also render criminal a
nonrecipient of food stamps who ‘possessed’ stamps because he was mistakenly sent them
through the mail due to administrative error, ‘altered’ them by tearing them up, and
‘transferred’ them by throwing them away.” Id. at 426-427.
Unlike the statute at issue in Liparota, the statute in this matter, MCL 205.428(3),
does not “criminalize a broad range of apparently innocent conduct” without a knowledge-
of-the-law requirement. The range of conduct that involves possessing, acquiring,
transporting, or offering for sale 3,000 or more cigarettes under certain attendant
circumstances is extraordinarily narrow compared to the range of acts that involve
possession, use, or acquisition of food stamps. Therefore, Liparota does not support the
conclusion that the Legislature intended to include a knowledge-of-the-law requirement
with respect to MCL 205.428(3).
5. KNOWLEDGE-OF-STATUS REQUIREMENT
Given the presumption that a defendant must “know the facts that make his conduct
illegal,” Staples, 511 US at 605, we cannot conclude that the Legislature intended MCL
205.428(3) to create an offense that is only one small step (knowledge of transporting
cigarettes) away from strict liability. The prosecution admits that under its proposed
construction, an employee who reasonably relies on an employer’s misrepresentation that
a particular act of transporting cigarettes does not require a license would be guilty of a
18
felony. In other words, such an employee would be a felon for relying on his employer’s
representations rather than personally investigating applicable licensing requirements. We
cannot conclude that the Legislature intended to impose upon such apparently innocent
conduct the “infamy” of the term “felony,” which is “as bad a word as you can give to man
or thing.” Morissette v United States, 342 US 246, 260; 72 S Ct 240; 96 L Ed 288 (1952)
(quotation marks and citation omitted); see also Staples, 511 US at 620 (“[I]f Congress had
intended to make outlaws of gun owners who were wholly ignorant of the offending
characteristics of their weapons, . . . it would have spoken more clearly to that effect.”).
Instead, we think that Rehaif, 588 US ___; 139 S Ct 2191, provides the appropriate
framework for this case. In Rehaif, the United States Supreme Court applied the criminal-
intent presumption to the federal prohibition on the possession of firearms by
undocumented immigrants. Id. at ___; 139 S Ct at 2194. The petitioner, who was attending
a university on a nonimmigrant student visa, was expelled for poor grades and told that his
immigration status would be terminated unless he enrolled in a different university or left
the country. Id. at ___; 139 S Ct at 2194. Around that time, he used firearms at a shooting
range and was arrested for possessing firearms as an undocumented immigrant. Id. at ___;
139 S Ct at 2194. The government argued that criminal intent could be established solely
by the petitioner’s knowledge that he possessed a firearm. Id. at ___; 139 S Ct at 2194-
2195. The Supreme Court disagreed, reasoning that “the defendant’s [immigration] status
is the crucial element separating innocent from wrongful conduct.” Id. at___; 139 S Ct at
2197 (quotation marks and citation omitted). Therefore, the Court held, the criminal-intent
presumption required the government to “show that the defendant knew he possessed a
firearm and also that he knew he had the relevant status when he possessed it.” Id. at ___;
19
139 S Ct at 2194. The Court explained that a knowledge-of-status requirement is not a
knowledge-of-the-law requirement:
This maxim [that “ignorance of the law is no excuse”], however,
normally applies where a defendant has the requisite mental state in respect
to the elements of the crime but claims to be unaware of the existence of a
statute proscribing his conduct. In contrast, the maxim does not normally
apply where a defendant has a mistaken impression concerning the legal
effect of some collateral matter and that mistake results in his
misunderstanding the full significance of his conduct, thereby negating an
element of the offense. [Id. at ___; 139 S Ct at 2198 (quotation marks and
citations omitted; emphasis added).]
B. APPLICATION OF THE CRIMINAL-INTENT PRESUMPTION TO
MCL 205.428(3)
In this case, each defendant is charged with being “[a] person who possesses,
acquires, transports, or offers for sale contrary to this act 3,000 or more cigarettes . . . .”
MCL 205.428(3). Specifically, defendants are charged with acting contrary to the TPTA
because they lacked the license required by MCL 205.423(1). The licensing requirement
of MCL 205.423(1) applies to a “person” acting as “a manufacturer, wholesaler, secondary
wholesaler, vending machine operator, unclassified acquirer, transportation company, or
transporter in this state . . . .” Therefore, whether a person has violated the licensing
requirement, thereby acting “contrary to this act” for purposes of MCL 205.428(3),
depends upon the person’s status as a manufacturer, wholesaler, secondary wholesaler,
vending machine operator, unclassified acquirer, transportation company, or transporter.
In short, “the defendant’s status is the crucial element separating innocent from wrongful
conduct.” Rehaif, 588 US at ___; 139 S Ct at 2197 (quotation marks and citation omitted).
As we must presume that the Legislature intended a felony conviction to be supported by
20
a showing of criminal intent, the prosecution must show that a person charged with
violating MCL 205.428(3) “[knew] the facts that make his conduct illegal,” Staples, 511
US at 605. A violation of MCL 205.428(3) requires, at a minimum, proof that the actor
knew facts that conferred a status that subjected him to the regulatory requirements of the
TPTA. Because defendants were charged with acting as “transporters” and because there
is no allegation that they fell into any other category of “person” under the TPTA, we hold
that MCL 205.428(3) requires the prosecution to show that defendants (1) knew they were
transporting 3,000 or more cigarettes and (2) knew of facts that conferred “transporter”
status or knew of the specific licensing requirement of MCL 205.423(1).
Under MCL 205.422(y), an individual qualifies as a “transporter,” and thus is
subject to the licensing requirement, only if the individual is transporting tobacco from “a
source located outside this state” or “from any person not duly licensed under this act” and
the individual is not a licensed interstate commerce carrier or an out-of-state licensee under
the TPTA. These are the facts that confer transporter status and, therefore, the facts that
an individual must know to be liable for violating MCL 205.428(3).
Our holding does not require a showing that defendants were aware of the particular
statutes that applied to their conduct or, specifically, that they were required to be licensed,
although either would be sufficient to establish that defendants knew facts that made their
conduct unlawful. Rather, our holding requires a minimal showing that defendants knew
that they were transporting a tobacco product obtained from a source located outside this
state or from a person not duly licensed under the TPTA—facts that would alert a
reasonable person to the “likelihood of strict regulation.” Staples, 511 US at 611. Our
holding “depends upon a commonsense evaluation of . . . the expectations that individuals
21
may legitimately have in dealing with the regulated items.” Id. at 619; see also X-Citement
Video, 513 US at 73 (“[O]ne would reasonably expect to be free from regulation when
trafficking in sexually explicit, though not obscene, materials involving adults. Therefore,
the age of the performers is the crucial element separating legal innocence from wrongful
conduct.”). A reasonable person would expect to be subject to regulation when
transporting 3,000 or more cigarettes across state lines or from an unlicensed source.
The dissenting justices opine that our construction of MCL 205.428(3) frustrates the
purpose of the statute. We disagree that our holding makes the offense impossible to
enforce or that it places an “oppressive burden” on the prosecution. Nasir, 255 Mich App
at 45. As is the case with all criminal offenses, “minimal circumstantial evidence is
sufficient to establish a defendant’s state of mind.” Id. (quotation marks and citation
omitted). Whether a defendant knew facts that conferred transporter status may be
established by showing that the defendant was aware that his or her cigarette source was
from outside the state or that the source did not have the proper license. A defendant’s
knowledge that cigarettes came from an out-of-state source can be shown quite simply
through testimony or documentary evidence that the defendant left Michigan to obtain the
cigarettes. A defendant’s knowledge that her or his source is not duly licensed can be
shown circumstantially by constructive awareness of communications among accomplices,
colleagues, customers, etc. It can also be shown quite directly if an enforcement agent
testifies that a defendant was previously told that he or his employer, generally speaking,
lacked the “right” license for their activity. We agree with the dissenting justices that many
defendants will claim that they lacked the requisite knowledge or intent to be convicted.
However, we do not think it follows that witnesses with relevant information or
22
documentary evidence will be so lacking that a fact-finder will be left to take the
defendant’s word in every case.
VI. CONCLUSION
Under the TPTA, a “person” who transports 3,000 or more cigarettes without a
transporter license required by MCL 205.423(1) is guilty of a felony if he or she is aware
of facts that confer transporter status under MCL 205.422(y). Under MCL 205.422(o), it
is clear that a “person” includes an “individual.” In turn, “an individual” may be a
“transporter” subject to the licensing requirement. The Court of Appeals did not err by
holding that MCL 205.428(3) can apply to individual, nonsupervisory employees and that
the statute provides sufficient notice of the conduct it prohibits. Therefore, we affirm Part
II(B) of the judgment of the Court of Appeals.
However, the district court did not consider whether each defendant in this case
knew facts that, at a minimum, bestowed transporter status on them. A bindover decision
is invalid unless it is supported by evidence as to each element of the charged offense.
Shami, 501 Mich at 250-251. It is possible that defendants knew of their employer’s
avoidance of the state’s tobacco regulations or that the cigarettes being transported were
obtained from out of state or an unlicensed source, but no evidence of such knowledge was
presented. Therefore, we reverse Part II(A) of the judgment of the Court of Appeals and
grant defendants’ joint motion to quash the district court’s bindover decision. We do not
retain jurisdiction.
Elizabeth M. Welch
Bridget M. McCormack
Richard H. Bernstein
Elizabeth T. Clement
23
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 159371
GERALD MAGNANT,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 159373
JOHN FRANCIS DAVIS,
Defendant-Appellant.
CAVANAGH, J. (concurring in the result).
I concur in the Court’s decision to affirm in part and reverse in part the judgment of
the Court of Appeals and quash the district court’s bindover decision. However, because
the parties agree that the mens rea of “knowingly” applies to each element of the offense,
I would resolve the matter on that basis and hold that a violation of MCL 205.428(3)
requires proof that the actor knew that his or her conduct violated the Tobacco Products
Tax Act (the TPTA), MCL 205.421 et seq.
As a general rule, courts infer an element of criminal intent when a statute is silent.
Rambin v Allstate Ins Co, 495 Mich 316, 327; 852 NW2d 34 (2014). This presumption
applies to each element of a statutory crime. Id. Whether to infer an element of criminal
intent in the absence of explicit legislative direction is not about overriding legislative
intent but rather about deciphering it. The United States Supreme Court explained in
Rehaif v United States, 588 US ___, ___; 139 S Ct 2191, 2195; 204 L Ed 2d 594 (2019):
In determining Congress’ intent, we start from a longstanding presumption,
traceable to the common law, that Congress intends to require a defendant to
possess a culpable mental state regarding “each of the statutory elements that
criminalize otherwise innocent conduct.” United States v. X-Citement Video,
Inc., 513 U.S. 64, 72, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); see also
Morissette v. United States, 342 U.S. 246, 256-258, 72 S.Ct. 240, 96 L.Ed.
288 (1952). We normally characterize this interpretive maxim as a
presumption in favor of “scienter,” by which we mean a presumption that
criminal statutes require the degree of knowledge sufficient to “mak[e] a
person legally responsible for the consequences of his or her act or
omission.” Black’s Law Dictionary 1547 (10th ed. 2014).
The problem we face is what to make of MCL 205.428(3), which reads, in relevant part,
“A person who possesses, acquires, transports, or offers for sale contrary to [the TPTA]
3,000 or more cigarettes . . . is guilty of a felony, punishable by a fine of not more than
$50,000.00 or imprisonment for not more than 5 years, or both.”
The statute is silent as to mens rea, but the parties—and all members of this Court—
agree that the statute is not a strict-liability offense. That is, pursuant to the longstanding
presumption discussed earlier, a scienter requirement is applied to each element of the
offense. I agree with Justice ZAHRA that MCL 205.428(3) contains three elements and that
to violate the statute a person must knowingly:
1. Possess, acquire, transport, or offer for sale cigarettes;
2. Do so contrary to the TPTA; and
3. The quantity of cigarettes in question is 3,000 or more.
2
The difficulty is how to apply the scienter presumption to the second element—that the
transportation or possession of the cigarettes must be done “contrary to [the TPTA].” 1
The prosecution argues that the language “contrary to [the TPTA]” is not an element
at all but rather “incorporate[s] a regulatory scheme both in the statute itself and any rules
the Department of Treasury enacts per statutory authority.” Justice ZAHRA disagrees with
the prosecution that this language is not an element but sees it as incorporating, in this
context, the licensure requirement of the TPTA. So, Justice ZAHRA reads “contrary to [the
TPTA]” as, in this context, “without a license.” I largely agree with both points of view,
with a couple exceptions: I disagree with the prosecution that this language is not an
element of the offense, and I disagree with Justice ZAHRA that a proper interpretation of
the statute requires substituting language from elsewhere in the TPTA.
However the language “contrary to [the TPTA]” functions, there is no dispute that
it is an element of the offense. An “element” of a crime is one of its “constituent part[s],”
and “[b]y definition, each ‘element’ is necessary, and all ‘elements’ together are
sufficient.” People v Bruce, 504 Mich 555, 564 n 3; 939 NW2d 188 (2019) (quotation
marks and citation omitted). The prosecution does not argue that a defendant is guilty of
violating MCL 205.428(3) so long as he or she possessed, acquired, transported, or offered
1
Justice VIVIANO focuses only on one narrow way in which MCL 205.428(3) might be
violated—functioning as a “transporter” under MCL 205.422(y) without a license to do so
under MCL 205.423(1). The focus is understandable because that is the conduct at issue
in this case. But the TPTA is an entire regulatory scheme, and MCL 205.428(3), as well
as MCL 205.428(4) and MCL 205.428(5), criminalize a much broader range of conduct.
The statutory phrase “contrary to this act” incorporates the entire regulatory scheme, and
MCL 205.428(5) criminalizes any violation. Applying the scienter presumption to this
element requires consideration of the entire regulatory scheme, not just the facts of this
case.
3
for sale cigarettes and the quantity of cigarettes was 3,000 or more. Those constituent parts
are both necessary, but they are not sufficient without more. The prosecution recognizes
this and the fact that a person could transport 3,000 or more cigarettes if he or she had the
appropriate license. The plain language of MCL 205.428(3) qualifies its prohibition by
stating that it provides a penalty when cigarettes are possessed or transported “contrary to
[the TPTA],” and in MCL 205.423(1) the TPTA prohibits this conduct unless the person
has a license. So, I agree with the prosecution that the language “contrary to [the TPTA]”
incorporates the regulatory scheme so that if a person knowingly “possesses, acquires,
transports, or offers for sale” “3,000 or more cigarettes” in any way that violates the TPTA,
they are guilty of a felony under MCL 205.428(3). Clearly, a violation of the regulatory
scheme is a necessary component of this crime, so it is an element of the offense. But, the
lack of a license is not the only way in which cigarettes may be possessed, acquired,
transported, or offered for sale contrary to the TPTA.
The TPTA also prohibits acquiring for sale a pack of cigarettes that does not have a
stamp affixed, MCL 205.426a(3); hindering inspections of places where tobacco products
are sold, or hindering inspection of books, records, or other papers required under the
TPTA, MCL 205.426a(7); using a game of chance to aid, promote, or induce sales of
tobacco products, MCL 205.426(4); and giving tobacco products in connection with a
game of chance, MCL 205.426(4). The TPTA is a complicated regulatory scheme, and
there are many ways to run afoul of it. While I agree with Justice ZAHRA that the operation
of MCL 205.428(3) plugs in a violation from elsewhere in the TPTA, because of the
complexity of the regulatory scheme, I do not agree that his reading of the statute achieves
the purpose of the scienter presumption.
4
This statute functions much like the statute at issue in Liparota v United States, 471
US 419; 105 S Ct 2084; 85 L Ed 2d 434 (1985). In Liparota, the federal statute governing
food-stamp fraud provided that “ ‘whoever knowingly uses, transfers, acquires, alters, or
possesses coupons or authorization cards in any manner not authorized by [the statute] or
the regulations’ ” was subject to a fine and imprisonment. Id. at 420-421, quoting 7 USC
2024(b)(1), as amended by PL 97-98, § 1324; 95 Stat 1213. 2 The prosecution’s reading of
the statute in that case was much like the prosecution’s reading of MCL 205.428(3) here.
Despite the fact that the federal statute included a “knowingly” element, the prosecution
argued that a person only had to knowingly “use[], transfer[], acquire[], alter[], or possess[]
coupons or authorization cards” but that there was no mens rea requirement as to the
unlawfulness of the conduct. The United States Supreme Court rejected that reading of the
statute. The Court noted that the prosecution’s reading would criminalize a broad range of
otherwise innocent conduct and further noted:
“The contention that an injury can amount to a crime only when inflicted by
intention is no provincial or transient notion. It is as universal and persistent
in mature systems of law as belief in freedom of the human will and a
consequent ability and duty of the normal individual to choose between good
and evil.” [Liparota, 471 US at 425-426, quoting Morissette, 342 US at 250.]
Logically, that statute functioned in the same manner that MCL 205.428(3) does, in that it
incorporated a regulatory scheme. The Liparota Court could have employed Justice
ZAHRA’s approach, and rather than reading the statute to require that a defendant
knowingly violate the regulatory scheme, the Court could have only required that the
2
Admittedly, the federal statute at issue in Liparota is distinguishable because its text
contained the “knowingly” requirement. But, again, all parties and members of this Court
agree that the “knowingly” requirement applies to each element of this offense.
5
defendant knowingly do the act that violated the regulatory scheme. Liparota does not
address this approach, but it seems to me that such an approach does not address the
concern that “an injury can amount to a crime only when inflicted by intention” if the act
that violates the regulatory scheme is otherwise innocent.
Reading this statute as a whole, the question is closer here than in Liparota, in large
part because of the 3,000-cigarette minimum to trigger the felony provision. 3 But the
statute, like the statute in Liparota, also criminalizes the same range of conduct—any
violation of the TPTA—with no minimum requirement for the number of cigarettes as a
misdemeanor punishable by not more than one year of imprisonment. MCL 205.428(5).
Under Justice ZAHRA’s reading, playing cards for cigarettes with a friend would be a
misdemeanor, MCL 205.426(4), whether a person realized the conduct violated the TPTA
or not. 4
3
It bears noting that 3,000 cigarettes is the equivalent of 15 cartons of cigarettes. In my
opinion, knowing that you are transporting 15 cartons of cigarettes is not a fact that would
necessarily alert a reasonable person that they had crossed the line from innocent conduct
to conduct punishable by a five-year felony. I agree with Justice ZAHRA that the quantity
of cigarettes at issue here, more than 3,000 cartons, is not a borderline amount. But in
applying the scienter presumption for not just this case but also future cases, the relevant
amount is the statutory threshold.
4
Justice ZAHRA says that this scenario is “highly unlikely” and that discussion of this
scenario is “not helpful because it does not appear that the TPTA provides for a license to
engage in that conduct.” I agree that there is no license for this conduct in the TPTA. The
point of the hypothetical is that the TPTA makes a misdemeanor out of this relatively
benign conduct under Justice ZAHRA’s reading. As to the likelihood of the scenario, I
assume Justice ZAHRA means that prosecution of the conduct is unlikely, not that the
conduct is unlikely. But the central question of this case is “a commonsense evaluation of
the nature of the particular device or substance [the Legislature] has subjected to regulation
and the expectations that individuals may legitimately have in dealing with the regulated
items.” Staples v United States, 511 US 600, 619; 114 S Ct 1793; 128 L Ed 2d 608 (1994).
If we find ourselves saying that prosecution of such conduct is “highly unlikely,” then it
6
This question is close, and it is difficult because, like so many similar cases, the
central reasoning “depends upon a commonsense evaluation of the nature of the particular
device or substance [the Legislature] has subjected to regulation and the expectations that
individuals may legitimately have in dealing with the regulated items.” Staples v United
States, 511 US 600, 619; 114 S Ct 1793; 128 L Ed 2d 608 (1994). I do not believe resort
to the rule of lenity is required here, but at least there are both “circumstances of an
ambiguity” as well as an “absence of any firm indication of legislative intent.” People v
Wakeford, 418 Mich 95, 113-114; 341 NW2d 68 (1983). In that case, it seems appropriate
to apply the principle that “ ‘ambiguity concerning the ambit of criminal statutes should be
resolved in favor of lenity.’ ” Liparota, 471 US at 427, quoting Rewis v United States, 401
US 808, 812; 91 S Ct 1056; 28 L Ed 2d 493 (1971).
Lastly, I am aware of the maxim that “ignorance of the law is no excuse.” That idea
is difficult to apply when the Legislature incorporates by reference an entire regulatory
scheme into a criminal statute without providing clarity as to how the mens rea of the
offense should function. But that maxim is not absolute; ignorance of the law is not a
defense except when the Legislature says it is. The Legislature has said so in terms of this
statute, and this can be squared with my resolution of this case as it was in Rehaif:
This maxim, however, normally applies where a defendant has the
requisite mental state in respect to the elements of the crime but claims to be
“unaware of the existence of a statute proscribing his conduct.” 1 W. LaFave
& A. Scott, Substantive Criminal Law § 5.1(a), p 575 (1986). In contrast,
the maxim does not normally apply where a defendant “has a mistaken
impression concerning the legal effect of some collateral matter and that
seems we have revealed “the expectations that individuals may legitimately have in dealing
with the regulated items.”
7
mistake results in his misunderstanding the full significance of his conduct,”
thereby negating an element of the offense. Ibid.; see also Model Penal Code
§ 2.04, at 27 (a mistake of law is a defense if the mistake negates the
“knowledge . . . required to establish a material element of the offense”).
Much of the confusion surrounding the ignorance-of-the-law maxim stems
from “the failure to distinguish [these] two quite different situations.”
LaFave, Substantive Criminal Law § 5.1(d), at 585. [Rehaif, 588 US at ___;
139 S Ct at 2198.]
Accordingly, I concur in the majority’s result.
Megan K. Cavanagh
8
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 159371
GERALD MAGNANT,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 159373
JOHN FRANCIS DAVIS
Defendant-Appellant.
ZAHRA, J. (dissenting).
I dissent from the Court’s decision to reverse Part II(A) of the judgment of the Court
of Appeals and quash the district court’s bindover decision. Michigan State Police stopped
defendants in a pickup truck towing a utility trailer found to contain 672,000 untaxed
cigarettes. 1 This conduct alone constitutes prima facie 2 evidence that could sustain a jury
verdict on several charges brought under the Tobacco Products Tax Act, MCL 205.421 et
seq. (the TPTA), including the offense charged in this case under MCL 205.428(3). I
would affirm the Court of Appeals’ decision and remand to the circuit court for further
proceedings.
The TPTA is comprehensive and contains a subsection providing, in relevant part,
that “[a] person who possesses, acquires, transports, or offers for sale contrary to [the
TPTA] 3,000 or more cigarettes . . . is guilty of a felony, punishable by a fine of not more
than $50,000.00 or imprisonment for not more than 5 years, or both.” 3 The prosecution
concedes that a person must “knowingly” violate this subsection. This “knowingly”
requirement, pursuant to Rambin v Allstate Ins Co, 4 applies to each element of a statutory
crime. 5 Under a Rambin framework, MCL 205.428(3) contains three general elements.
The defendant must knowingly:
1. Possess or transport cigarettes;
1
The Legislature has underscored that “[i]t is the intent of [the TPTA] to impose the tax
levied under this act upon the consumer of the tobacco products by requiring the consumer
to pay the tax at the specified rate.” MCL 205.427a.
2
“Sufficient to establish a fact or raise a presumption unless disproved or rebutted; based
on what seems to be true on first examination, even though it may later be proved to be
untrue .” Black’s Law Dictionary (11th ed).
3
MCL 205.428(3).
4
Rambin v Allstate Ins Co, 495 Mich 316; 852 NW2d 34 (2014).
5
Id. at 327-328.
2
2. Do so contrary to the TPTA; and
3. Possess or transport 3,000 or more cigarettes.
The parties disagree on the meaning of the second element, “contrary to [the
TPTA].” The prosecution initially questions whether “contrary to [the TPTA]” is an actual
element of the statutory crime. The prosecution maintains that this language is a statement
placed within every subsection of MCL 205.428 that prohibits the possession,
transportation, or sale of untaxed cigarettes and merely incorporates all the TPTA’s
provisions. Contrary to the prosecution’s position, I conclude that the statutory language
“contrary to [the TPTA]” has some meaning other than legal boilerplate; it is, in fact, an
element of the crime.
In my view, this “contrary to [the TPTA]” language has purpose. Given that
language, in addition to proving the first and third express elements of MCL 205.428(3),
the prosecution must also prove that the defendant was acting contrary to a separate
provision of the TPTA. In this case, the parties identified such a provision under the TPTA
that provides for various licenses, 6 some of which, if acquired, would “authorize[] [a
person] to do some act or series of acts that would otherwise be impermissible.” 7 Indeed,
the prosecution acknowledged this provision as an element of the charged statutory offense
when filing charges against defendants for committing the statutory offense without a
license.
6
MCL 205.423(1) to (3).
7
See Black’s Law Dictionary (11th ed) (defining “license”).
3
I view the “contrary to [the TPTA]” language in MCL 205.428(3) as referring to a
license. Accordingly, I would submit that the distinct elements of this offense are that the
defendant must knowingly:
1. Possess or transport cigarettes;
2. Without a license;
3. In a quantity of 3,000 or more.
Like the majority, I, too, would not wade into the “dangers posed by overreliance
on the general-intent/specific-intent distinction.” Rather, I would focus on the term
“knowingly” itself. In Bryan v United States, 8 the United States Supreme Court discussed
this term at length and made clear that
the 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, 110 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, 254–255, 118 S.Ct. 673, 674–676, 139 L.Ed.2d 686 (1998)
(plurality opinion). Thus, unless the text of the statute dictates a different
8
Bryan v United States, 524 US 184; 118 S Ct 1939; 141 L Ed 2d 197 (1998).
4
result, the term “knowingly” merely requires proof of knowledge of the facts
that constitute the offense.[9]
Both defendants argue that “MCL 205.428(3) requires proof that [each] knew that
he was transporting cigarettes in a manner ‘contrary to’ the TPTA, i.e., that he had
knowledge that he was required to obtain a transporter license (but did not do so).” 10
However, as Bryan makes clear, “the term ‘knowingly’ does not necessarily have any
reference to a culpable state of mind or to knowledge of the law.” 11 Rather, the “term
‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.” 12
9
Bryan, 524 US at 192-193. Internal footnotes were removed from the above quoted text,
although I believe that footnote 14 is helpful enough to republish in this note:
In his opinion dissenting from the Court’s decision upholding the
constitutionality of a statute authorizing punishment for the knowing
violation of an Interstate Commerce regulation, Justice Jackson wrote:
“It is further suggested that a defendant is protected against
indefiniteness because conviction is authorized only for knowing violations.
The argument seems to be that the jury can find that defendant knowingly
violated the regulation only if it finds that it knew the meaning of the
regulation he was accused of violating. With the exception of Screws v.
United States, 325 U.S. 91[; 65 S Ct 1031; 89 L Ed 1495 (1945)], which rests
on a very particularized basis, the knowledge requisite to knowing violation
of a statute is factual knowledge as distinguished from knowledge of the law.
I do not suppose the Court intends to suggest that if petitioner knew nothing
of the existence of such a regulation its ignorance would constitute a
defense.” Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 345, 72
S.Ct. 329, 333, 96 L.Ed. 367 (1952) [(Jackson, J., dissenting)].
10
Formatting and capitalization altered.
11
Bryan, 524 US at 192.
12
Id. at 193.
5
In my view, defendants’ “argument seems to be that the jury can find that defendant[s]
knowingly violated the [statute] only if it finds that [they] knew the meaning of the [statute]
[they were] accused of violating.” 13 Defendants’ interpretation runs afoul of the long-
accepted jurisprudential meaning of “knowingly.” The only “fact” of which a person must
be aware in regard to the second element of this statutory offense is whether they
“knowingly” were without a license. 14
13
Boyce Motor Lines, Inc, 342 US at 345 (Jackson, J., dissenting).
14
In her concurrence, Justice CAVANAGH implies that my analysis of this element is
narrow. She writes that under my reading, friends playing cards for cigarettes could be a
misdemeanor, MCL 205.426(4), whether a person realized the conduct violated the TPTA
or not. Of course, this is a highly unlikely scenario, discussion of which is not helpful
because it does not appear that the TPTA provides for a license to engage in that conduct.
I also find unhelpful that Justice CAVANAGH “bears noting that 3,000 cigarettes is
the equivalent of 15 cartons of cigarettes” when this case involves well over 3,000 cartons
of cigarettes. And while it might be argued that “knowing that you are transporting 15
cartons of cigarettes is not a fact that would necessarily alert a reasonable person that they
had crossed the line from innocent conduct to conduct punishable by a five-year felony,”
this argument is not very persuasive when considering that those 15 cartons of cigarettes
are all ostensibly untaxed. I submit that very few innocent persons, if any, have knowingly
possessed or transported, knowingly over 15 cartons of untaxed cigarettes without
knowingly having proper licensure.
Moreover, my reading of the element does provide a significant defense for any
defendant who does possess a validly obtained license by allowing them to maintain that
they did not know that their license was invalid for any of a host of reasons. This is a
compelling defense in a highly regulatory regime. However, as discussed later in this
opinion, I do not believe that a defendant who has never possessed a valid license may
present this defense.
Justice VIVIANO’s dissent agrees that the majority properly states the second
element of the offense, although he would not require the prosecution to establish that
defendants were aware of this element. Yet, I do not find Justice VIVIANO’s position on
the elements of this offense much different than the majority’s interpretation of MCL
6
But the majority accepts defendants’ invitation to reinvent MCL 205.428(3) and
does just that by interpreting the second element to require that defendants must “[know]
of facts that conferred ‘transporter’ status or [know] of the specific licensing requirement
of MCL 205.423(1).” The TPTA does indeed provide that “[a]s used in [the TPTA],”
“[t]ransporter” means a person importing or transporting into this state, or
transporting in this state, a tobacco product obtained from a source located
outside this state, or from any person not duly licensed under [the TPTA].
Transporter does not include an interstate commerce carrier licensed by the
interstate commerce commission to carry commodities in interstate
205.428(3). In sum, their positions both turn on whether a statutorily defined “transporter”
has violated the TPTA. This approach is flawed because the statute expressly provides that
no “person” may possess or transport untaxed cigarettes notwithstanding the statutorily
defined license to legally operate as a “transporter.” There is no such thing as an unlicensed
“transporter” under the TPTA, so no legal basis provides for an unlicensed person to claim
that “(a) the tobacco is obtained from an out-of-state source or from a source not duly
licensed under the TPTA, and (b) the individual is not licensed by the Interstate Commerce
Commission (the ICC) or an out-of-state operator of a business or warehouse licensed
under the TPTA. MCL 205.422(y); MCL 205.423(1).” In this sense, both the majority’s
and Justice VIVIANO’s positions are misguided for additional reasons discussed later in this
opinion.
Justice VIVIANO seeks to distinguish his position from the majority by maintaining
that the prosecution need not prove that a defendant intended to commit this element. And
perhaps his contention in theory might lessen the majority’s effective blockade to enforcing
MCL 205.428(3). Yet, even without requiring any mens rea aspect to the element, I still
believe it nearly impossible for the prosecution to establish that “(a) the tobacco [was]
obtained from an out-of-state source or from a source not duly licensed under the TPTA,
and (b) the individual is not licensed by the Interstate Commerce Commission (the ICC)
or an out-of-state operator of a business or warehouse licensed under the TPTA. MCL
205.422(y); MCL 205.423(1).” In this case, the troopers did not actually witness
defendants loading the trailer with untaxed cigarettes, so the proofs would be insufficient
for failure to establish the “source” of the cigarettes. Further, Justice VIVIANO’s strict-
liability approach to the element would deprive any defendant who does possess a validly
obtained license of a significant defense by precluding argument that they did not know
their license had become invalid for any of a host of legitimate reasons.
7
commerce, or a licensee maintaining a warehouse or place of business
outside of this state if the warehouse or place of business is licensed under
[the TPTA].[15]
This provision, however, in no way creates a status on its own, as the majority
opinion suggests. By its plain terms, this provision describes conduct in which a person
who has a transporter license may lawfully engage. Obviously, if a person acquires a
transporter license, that person may act as a transporter and lawfully engage in the
“importing or transporting into this state, or transporting in this state, a tobacco product
obtained from a source located outside this state, or from any person not duly licensed
under [the TPTA].” But a person who has never sought a transporter license does not
spontaneously become a “transporter” by engaging in this described conduct, which, as
previously explained, is unlawful without having first acquired a license. After all, a person
does not become married merely by filing a joint tax return, just as a person does not
become a lawyer, doctor, veterinarian, certified public accountant, etc., by conducting
themselves as the like. Rather, those are persons criminally liable for engaging in the
unauthorized practice of those licensed professions.
The flaw in the majority’s “status” argument is also revealed by the very case on
which the majority heavily relies to support its construction of the second element. In
Rehaif v United States, 16 the petitioner attended a university on a nonimmigrant student
visa and was expelled for poor grades. Apparently, he was told that his immigration status
would be terminated unless he enrolled in a different university or left the country. After
15
MCL 205.422(y).
16
Rehaif v United States, 588 US ___; 139 S Ct 2191; 204 L Ed 2d 594 (2019).
8
his immigration status was terminated, the petitioner was arrested for possessing firearms
as an undocumented immigrant. The key question was whether the prosecution was
required to “show that the defendant knew he possessed a firearm and also that he knew he
had the relevant status when he possessed it.” 17 The Court concluded that the prosecution
must show both knowledge of possession and knowledge of his relevant immigration
status. 18
But had the petitioner in that case never acquired any immigration status, the Court
would have lacked any basis to construe “status [as] the ‘crucial element’ separating
innocent from wrongful conduct,” because the petitioner could not have claimed any status
that would render his conduct innocent. 19 The same is true in this case. Had defendants
actually acquired a transporter license, perhaps the majority’s opinion could reasonably
embrace an argument that they had “a mistaken impression concerning the legal effect of
some collateral matter and that mistake results in [their] misunderstanding the full
significance of [their] conduct, thereby negating an element of the offense.” 20 But because
defendants never sought or acquired a license, the majority’s argument lacks the requisite
legal foundation to draw a comparison between the instant case and Rehaif.
Further, the majority improperly construes the phrase “contrary to” as requiring the
prosecution to establish that defendants knew of “status” facts that would apparently
17
Id. at ___; 139 S Ct at 2194.
18
Id. at ___; 139 S Ct at 2194.
19
Id. at ___; 139 S Ct at 2197 (citation omitted).
20
Id. at ___; 139 S Ct at 2198 (quotation marks and citation omitted).
9
prompt a person to be aware that a transporter license is required. Specifically, the majority
requires that the prosecution prove beyond a reasonable doubt not only that the accused
person knowingly possessed or transported over 3,000 cigarettes but also that this “person
is aware that the cigarettes were obtained from an out-of-state source or from a source not
duly licensed under the TPTA.” But these two so-called “status” facts are, in fact,
provisions of law that the majority incorporates from the legal description of a “transporter”
provided under the TPTA. The inescapable conclusion is that the majority requires that an
accused person know the law and engage in conduct knowing it to be unlawful. In other
words, the majority requires the prosecution to establish, in regard to the second element,
a “willful” violation of MCL 205.428(3). Nothing in the text of MCL 205.428(3) or any
common-law presumption of criminal mens rea justifies this conclusion. Indeed, the
majority’s opinion is inconsistent with the Court’s decision in Rambin, which presumes
the same mens rea for each element of the offense.
Moreover, how the prosecution can ever establish beyond a reasonable doubt that
defendants were “aware that the cigarettes were obtained from an out-of-state source or
from a source not duly licensed under the TPTA” is a mystery. The majority makes great
efforts to dispel the notion that its holding is not inconsistent with the well-known maxim
that “ignorance of the law is no excuse,” but the opinion only incentivizes another well-
known idiom: “Ignorance is bliss.” Simply stated, someone who actually does intend to
violate the TPTA would not admit to being “aware that the cigarettes were obtained from
an out-of-state source or from a source not duly licensed under the TPTA.” And someone
who is interested in complying with the TPTA would glean from the majority’s opinion
that they are better off not being aware of the origin of the untaxed cigarettes. As in this
10
case, any person’s ideal “status” to avoid criminal liability for smuggling cigarettes is to
say, “I’m just a worker.” The majority’s opinion renders the TPTA not just confusing but
also largely unenforceable. Accordingly, I would affirm the Court of Appeals’ decision
and remand this case to the circuit court for further proceedings.
Brian K. Zahra
11
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 159371
GERALD MAGNANT,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 159373
JOHN FRANCIS DAVIS,
Defendant-Appellant.
VIVIANO, J. (dissenting).
I agree with the majority’s construction of the elements of MCL 205.428(3) and that
this statutory crime is not a strict-liability offense. I disagree, however, that a mens rea
requirement attaches to the disputed element requiring a license to transport cigarettes in
certain circumstances. For the reasons that follow, I dissent.
Defendants were charged with violating the Tobacco Products Tax Act (the TPTA),
MCL 205.421 et seq. Specifically, the criminal information asserted that defendants “did
possess, acquire, transport, or offer for sale 3,000 or more cigarettes, in the State of
Michigan, without obtaining/possessing a Michigan Tobacco license as required by MCL
205.423; contrary to MCL 205.428(3).” The latter statute provides the relevant elements
of the offense and the penalty:
A person who possesses, acquires, transports, or offers for sale
contrary to this act 3,000 or more cigarettes . . . is guilty of a felony,
punishable by a fine of not more than $50,000.00 or imprisonment for not
more than 5 years, or both. [MCL 205.428(3).]
Here, the prosecution alleged that defendants’ conduct was “contrary to this act” because
they did not have a license, as required by MCL 205.423(1). 1 That statute provides, in
pertinent part, that “a person shall not purchase, possess, acquire for resale, or sell a tobacco
product as a . . . transporter in this state unless licensed to do so.” Finally, “transporter” is
defined as
a person importing or transporting into this state, or transporting in this state,
a tobacco product obtained from a source located outside this state, or from
any person not duly licensed under this act. Transporter does not include an
interstate commerce carrier licensed by the interstate commerce commission
to carry commodities in interstate commerce, or a licensee maintaining a
warehouse or place of business outside of this state if the warehouse or place
of business is licensed under this act. [MCL 205.422(y).]
As the majority concludes, the definition of “transporter” must be an element of the
offense as charged. If the definition is not met, then no license is required to transport
1
Justice CAVANAGH states that my interpretation narrowly focuses on the crime as charged
and therefore overlooks the fact that there are many ways for a defendant to violate the act.
We are, of course, limited to interpreting the crime as charged. Here the relevant element
is somewhat unique in that it simply incorporates whatever portion of the act the defendant
is charged in the information with violating. So it is necessarily the case that the content
of that element will change when a defendant is charged with violating a different section
of the act. Therefore, while the same analytical framework will apply, our conclusion on
whether there is a mens rea requirement may differ as well.
2
cigarettes. And because that definition is limited to certain circumstances—specifically
here, obtaining tobacco products from out-of-state sources or from individuals not licensed
under the TPTA—it is possible a person might transport these products without needing a
license. In the present case, for instance, if the cigarettes were obtained in Michigan from
a duly licensed person, then a defendant transporting them would not be a “transporter”
under MCL 205.422(y). And if a person is not a “transporter,” then ipso facto he or she
has not possessed the cigarettes without a license “as a . . . transporter” under MCL
205.423(1). In those circumstances, the individual has not acted “contrary to this act”
under MCL 205.428(3) and could not be convicted of the charge here. Thus, the
prosecution must prove that each defendant was a “transporter” as defined by the statute.
The dispositive issue is whether the statute and all its elements require a showing of
criminal intent. “[T]o determine whether a statute imposes strict liability or requires proof
of a guilty mind, the Court first searches for an explicit expression of intent in the statute
itself.” People v Tombs, 472 Mich 446, 451; 697 NW2d 494 (2005), citing People v Quinn,
440 Mich 178, 185; 487 NW2d 194 (1992). The Legislature did not include an express
mens rea element in the statute creating this offense. 2 But “[s]tatutes that create strict
liability for all their elements are not favored.” Tombs, 472 Mich at 451, citing Quinn, 440
2
For this reason, Rehaif v United States, 588 US ___; 139 S Ct 2191; 204 L Ed 2d 594(2019), a case on which the majority heavily relies, is readily distinguishable. In Rehaif,
the statute creating the offense contained an express mens rea requirement. Id. at ___; 139
S Ct at 2195-2196, citing 18 USC 924(a)(2). The Court explained that the term
“knowingly” introduced the list of elements and that, as an ordinary matter of grammar,
that term applied to all the elements. Id. at ___; 139 S Ct at 2195-2196. As noted, the
statute at issue in the present case does not include any express mens rea requirement, let
alone one that grammatically applies to each element.
3
Mich at 187. “Hence, we tend to find that the Legislature wanted criminal intent to be an
element of a criminal offense, even if it was left unstated.” Tombs, 472 Mich at 451.
Various factors are considered in determining whether mens rea attaches to a statute.
See Quinn, 440 Mich at 190 n 14. The one I find dispositive here is the severity of the
punishment provided for by the statute. See, e.g., Staples v United States, 511 US 600,
618; 114 S Ct 1793; 128 L Ed 2d 608 (1994) (explaining that a severe punishment, in
particular a felony, “is a further factor tending to suggest that Congress did not intend to
eliminate a mens rea requirement”). 3 The gun offense in Staples was a felony punishable
by up to 10 years in prison, which confirmed the Court’s reading that the statute included
a mens rea requirement. Id. at 616. The offense here is a felony punishable by a fine of
not more than $50,000 or imprisonment for not more than 5 years, or both. MCL
205.428(3). Although the Staples Court was careful to clarify that felonies do not
categorically require a mens rea element—and the carceral punishment here is only half as
long as the punishment in Staples—I agree with the majority that the Legislature did not
intend to create a strict-liability crime.
I cannot, however, follow the majority’s next step and conclude that, because the
offense is not one of strict liability, all its elements must contain an intent requirement. It
3
The other factors include the statute’s history and title, other statutes, the severity of the
harm posed to the public by the proscribed acts, “the opportunity to ascertain the true facts,”
and “the difficulty encountered by prosecuting officials in proving a mental state.” Quinn,
440 Mich at 190 n 14. As will be discussed, this is a regulatory taxing statute with licensure
requirements, not the sort of common-law crime that has traditionally required mens rea.
And, somewhat oddly, the Legislature has included an express mens rea requirement for a
lesser offense in this very statutory section, MCL 205.428(11). These other factors,
standing alone, would not support a mens rea requirement.
4
is normally true that the “presumption in favor of a criminal intent or mens rea requirement
applies to each element of a statutory crime.” Rambin v Allstate Ins Co, 495 Mich 316,
327-328; 852 NW2d 34 (2014), citing Tombs, 472 Mich at 454-455. The presumption,
however, does not always control. Certain “statute[s] require[] a criminal mind for some
but not all of [the] elements . . . .” Quinn, 440 Mich at 187. In such cases, the statute “is
not one of strict liability.” Id. In Quinn, the Court interpreted MCL 750.227c, which sets
forth the offense of transporting or possessing a loaded firearm other than a pistol. The
Court determined that “the Legislature intended to hold a person liable for knowing
transportation of a firearm that is in fact loaded, irrespective of whether the individual
actually knew the fact that it is his duty to ascertain.” Id. at 194. United States v Freed,
401 US 601; 91 S Ct 1112; 28 L Ed 2d 356 (1971), provides another example. Justice
Brennan explained in his concurrence that the government must prove three material
elements: “(1) that appellees possessed certain items; (2) that the items possessed were
hand grenades; and (3) that the hand grenades were not registered.” Id. at 612 (Brennan,
J., concurring in the judgment). And while the Court held that “no intent at all need be
proved in regard to one element of the offense—the unregistered status of the grenades—
knowledge must still be proved as to the other two elements,” so it is not a crime of strict
liability. Id. 4
4
See also Staples, 511 US at 609 (recognizing that “different elements of the same offense
can require different mental states”). Another example is the recently enacted MCL 8.9,
which expressly contemplates that courts will sometimes determine that certain elements
impose strict liability while others have a mens rea requirement. MCL 8.9 does not apply
to the offense here because the offense occurred before the statute’s effective date.
5
I would conclude that the presumption in favor of applying a mens rea requirement
to each element has been overcome and that the Legislature did not intend to require
knowledge of the attendant circumstances set forth in the definition of transporter, i.e.,
whether the tobacco is obtained from an out-of-state or unlicensed source. MCL
205.422(y). As an initial matter, the licensure requirement at the heart of the definition of
“transporter” is a far cry from the sorts of criminal conduct that traditionally have been
found to require mens rea. Indeed, we have found that a similar licensure requirement was
not even an element of a statutory offense. See People v Henderson, 391 Mich 612, 616;
218 NW2d 2 (1974). 5
5
In Henderson, we read the licensure requirement as simply acknowledging that a person
may be authorized to do an act that would otherwise be illegal. Henderson, 391 Mich at
616. We explained, in relevant part:
We are satisfied that the operative words of the statute as they pertain to this
defendant are:
“* * * any person who shall carry a pistol * * * in any vehicle
operated or occupied by him * * * shall be guilty of a felony.”
The language in the statute “without a license to so carry said pistol
as provided by law” does not add an element to the crime, but simply
acknowledges that a person may be authorized so to carry a pistol. This is of
the essence of a license.
A license is the permission by competent authority to do an act which,
without such permission, would be illegal. [Id.]
The difference in this case is that transportation of cigarettes is an act that is ordinarily
legal. A license is required only if certain attendant circumstances exist. In addition, our
conclusion in Henderson was bolstered by an additional statute that placed on the defendant
the burden of proving exceptions to the offense, such as having the appropriate license. Id.
at 616-617, citing MCL 776.20. No such statute exists for the offense here. For these
reasons, I conclude that licensure is an element here. Nonetheless, I believe that Henderson
6
Further, as the United States Supreme Court has explained, the surest indicator that
criminal intent is required is when the statute codifies a common-law crime. In holding
that a federal conversion statute silent on intent nonetheless required a showing of mens
rea, the Court explained that “[c]ongressional silence as to mental elements in an Act
merely adopting into federal statutory law a concept of crime already so well defined in
common law and statutory interpretation by the states may warrant quite contrary
inferences than the same silence in creating an offense new to general law, for whose
definition the courts have no guidance except the Act.” Morissette v United States, 342
US 246, 262; 72 S Ct 240; 96 L Ed 288 (1952). The conversion offense fell into the former
category, and the Court found no grounds to infer an instruction from Congress to eliminate
intent from the crime. Id. at 273.
By contrast, regulatory tax statutes containing criminal offenses without any
common-law antecedents have been found not to require mens rea. One such statute was
at issue in United States v Balint, 258 US 250, 253; 42 S Ct 301; 66 L Ed 604 (1922). The
Court noted that the emphasis of the narcotics act at issue was “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.” Id. at 254.
Individuals dealing in those drugs were not, the Court held, required to know that the drugs
were regulated. Id. “Doubtless considerations as to the opportunity of the seller to find
provides some support for my conclusion that licensing requirements are not traditional
elements that require mens rea.
7
out the fact and the difficulty of proof of knowledge contributed to this conclusion,” the
Court concluded. Id.I believe that the court’s analysis in United States v Carlos-Colmenares, 253 F3d
276 (CA 7, 2001), which examined an element similar to the one at issue here, is
instructive. In that case, “[t]he defendant pleaded guilty to the crime of having been found
in the United States, without the express consent of the Attorney General to be here, after
having been deported . . . . 8 U.S.C. § 1326(a)(2).” Id. at 277. The court held that intent
to reenter the country is an element but that intent to reenter without the Attorney General’s
permission is not. Id. at 278. “Nothing in the statute’s language or background suggests
that an illegally returning deportee cannot be convicted unless he knew he lacked the
Attorney General’s express consent to reenter.” Id. The court noted that nine other circuits
had considered the issue and unanimously reached the same conclusion. It continued to
reject defendant’s argument that this interpretation created a strict-liability crime,
explaining: “Liability would be strict if the returning alien could be punished even if he
had been returned involuntarily. What is at issue is whether the government, in addition to
having to prove that the alien was deported and knowingly returned and did not have the
express consent of the Attorney General to return, must prove that he knew he didn’t have
that consent, or, alternatively, whether the alien may try to prove that he didn’t know.” Id.
at 279. The court explained that the crime at issue was more of a regulatory offense:
“Regulatory” offenses are those that arise out of optional activities, such as
having sex with very young women (who may be minors), or engaging in
business activities that can cause great harm (such as the manufacture of
foods or drugs)—or coming back to the United States after having been
deported. The risk of violating a statute that regulates an optional activity
can be eliminated simply by not engaging in the regulated activity. A person
8
who has been deported from the United States can avoid any risk of violating
8 U.S.C. § 1326 just by not returning to the United States; he knows he is not
welcome. If nevertheless he decides to return, he had better make sure he
has the Attorney General’s express consent. [Id. at 279-280.]
In this case, the lack of an intent requirement for the “transporter” element does not
make MCL 205.428(3) a strict-liability offense because, as stated by the majority, the
statute requires knowledge of the possession of the cigarettes and the quantity of the
cigarettes. See Quinn, 440 Mich at 187. A strict-liability offense would allow convictions
even if a defendant had no knowledge that there were cigarettes in his trailer at all. Cf.
Carlos-Colmenares, 253 F3d at 279. 6 Given that this offense was not a common-law
crime, there is no well-defined analogous offense from which we might infer a mens rea
requirement. See Morissette, 342 US at 262. Instead, this is a case in which the Legislature
“creat[ed] an offense new to general law, for whose definition the courts have no guidance
except the Act.” Id. It is a licensing offense. As the majority notes, the Legislature enacted
the TPTA “to provide for a tax upon the sale and distribution of tobacco products; to
regulate and license manufacturers, wholesalers, secondary wholesalers, vending machine
operators, unclassified acquirers, transportation companies, transporters, and retailers of
tobacco products; . . . [and] to prescribe penalties and provide remedies for the violation of
this act[.]” 1993 PA 327, title; see also MCL 205.427a (“It is the intent of this act to impose
6
And even if the Legislature did intend that an intent requirement attach to this element,
there is no evidence that the Legislature intended the heightened mens rea requirement
adopted by the majority. See Rehaif, 588 US at ___; 139 S Ct at 2212 (Alito, J., dissenting)
(“And if Congress wanted to require proof of some mens rea with respect to the categories
in [the statute], there is absolutely no reason to suppose that it wanted to impose one of the
highest degrees of mens rea—actual knowledge. Why not require reason to know or
recklessness or negligence? To this question, neither petitioner nor the majority has any
answer.”).
9
the tax levied under this act upon the consumer of the tobacco products by requiring the
consumer to pay the tax at the specified rate.”).
Moreover, the TPTA is primarily a “taxing act” like the one at issue in Balint. Here,
as in Balint, the emphasis on the statute is the supervision of the regulated industry, and
the criminal penalties are used as adjuncts to give the regulations teeth. The TPTA taxes
and regulates tobacco products, and the Legislature created criminal penalties as a means
of enforcement. In holding that the prosecution did not need to prove that the defendant
knew that the drugs he sold were “narcotics” within the ambit of the statute, the Balint
Court also noted that Congress doubtless gave consideration to “the opportunity of the
seller to find out the fact and the difficulty of proof of knowledge . . . .” Balint, 258 US at
254. This rationale applies to the TPTA, too. People wishing to transport a large quantity
of cigarettes or to engage in any other activity regulated by the TPTA have a similar
opportunity to assess whether they meet the statutory definition of “transporter.”
Moreover, as the court in Carlos-Colmenares observed, “[t]he risk of violating a
statute that regulates an optional activity can be eliminated simply by not engaging in the
regulated activity.” Carlos-Colmenares, 253 F3d at 279. A person can avoid any risk of
violating the TPTA by staying out of the tobacco business altogether. As the majority
recognizes, “A reasonable person would expect to be subject to regulation when
transporting 3,000 or more cigarettes across state lines or from an unlicensed source.” If a
person decides to transport or sell a large quantity of cigarettes, he had better make sure he
is familiar with the regulations.
The difficulty of proving that a defendant knew that the tobacco was obtained from
an out-of-state or unlicensed source also supports my conclusion that proving knowledge
10
is not required. See note 3 of this opinion (noting that under Staples, the difficulty of proof
is a consideration in determining whether a crime imposes strict liability). Proving
knowledge of these circumstances would be just as challenging as it was in Balint, which
relied on this factor to find that the statute contained no mens rea requirement. It is the
type of case in which “requiring the prosecutor to prove knowledge would frustrate the
regulatory purposes of the statute.” Quinn, 440 Mich at 189. See also 1 LaFave,
Substantive Criminal Law (3d ed, October 2020 update), § 5.5(a) (“The greater the
difficulty, the more likely it is that the legislature intended to relieve the prosecution of that
burden so that the law could be effectively enforced.”). Although not impossible, proving
that a defendant knew the tobacco was obtained from a source located outside this state
would be difficult. MCL 205.422(y). And it would be nearly impossible for the
prosecution to prove that a defendant knew he or she was transporting a tobacco product
from a person not duly licensed under the TPTA. These considerations lend weight to the
conclusion that the Legislature did not intend to require mens rea as to the transporter
element.
In sum, while I agree with the majority that the definition of transporter is an element
of the offense charged in this case, I would hold that MCL 205.428(3) does not require the
prosecution to prove knowledge of the circumstances that make a person a “transporter.”
MCL 205.428(3) contains no express mens rea requirement and is not a codification of any
common-law offense to which a mens rea requirement would normally attach. It is,
instead, a regulatory tax statute, and when regulated persons or entities fail to comply with
that type of statute, they usually do so at their own peril. And although the offense, as a
11
whole, is not one of strict liability, the transporter element is regulatory in nature, and
requiring the prosecution to prove knowledge with regard to this element would be nearly
impossible. For these reasons, I respectfully dissent.
David F. Viviano
12