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Rehaif Part II: What Is the Government Required to Prove about the Defendant's Knowledge?

by: Don Samuel

In the introductory post about Rehaif, we reviewed some of the basic problems that the courts face in deciding what the government must prove about a defendant’s knowledge. What must the defendant know about the facts that are identified as the essential elements of the offense? And when focusing on whether the defendant harbored a criminal state of mind, what does Congress mean when it says that the defendant must act “willfully”? In this post – part 2 of 3 – the focus is entirely on the question of what the defendant must be shown to know about the different elements of the charged offense. In part 3, the focus will be on whether the government must prove that the defendant knew that what she was doing was a crime. Thus, here we address the defendant’s knowledge about specific elements of the offense; in part 3, we address the overall knowledge of the defendant regarding the criminality of her conduct.

Consider this hypothetical crime: “It is a crime for a defendant to knowingly sell to a senior citizen a security that is not registered at the SEC.” Is the government required to prove that the defendant know that what she sold was within the legal definition of a “security”? Is the government required to prove that the defendant knew the security was not registered at the SEC? Is the government required to prove that the defendant knew the buyer was a senior citizen?

Assuming the answers are not obvious – and they are not – there are various criteria the courts have used to answer the questions, sometimes depending on what type of element is in contention, sometimes depending on the wording of the criminal statute. In the broadest terms, the courts will generally draw different conclusions depending on (1) whether the element is a simple fact, such as the light was green or red, or the suitcase contained cocaine; (2) whether the fact is such that absent proof of that fact, the defendant’s conduct would not be illegal at all; (3) whether the element of the offense is simply a jurisdictional requirement for federal jurisdiction; (4) whether the element relates to the age or occupation of a victim or accomplice, (5) whether the element requires knowledge of the legal status of the defendant or an accomplice, (6) whether the crime with which the defendant is charged includes an element that requires knowledge of another federal statute or regulation that was alleged to have been violated, such as the tax code, or a regulation governing the proper disposal of hazardous material.

Here are examples of the tests that the courts use, and the reason the court reaches a conclusion about what the government must prove:

  1. Consider sentence structure. Try diagramming the sentence. It really does not help much, because one is left with the same questions, just asked in a way that sounds more like your high school English teacher would ask: How many objects does the word “knowingly” modify? How far down the list of objects (or elements of the offense) does the word travel before it expires? And does it automatically cover the first in a series of elements (In case you miss high school English, read Justice Alito’s dissent in Rehaif which devotes considerable attention to the sentence structure of §§ 922 and 924). In our hypothetical security fraud case, does it matter that “selling to a senior citizen” is the first of several elements that follows the “knowingly” modifier? Is the answer to the hypothetical question different if we change the structure of the sentence and move “to a senior citizen” to the end of the criminal statute? In Flores-Figueroa v. United States, 556 U.S. 646, 652 (2009), the Court wrote, "[C]ourts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word 'knowingly' as applying the word to each element." Except when the courts do not.
  2. It should be noted, though, that there are times when Congress leaves nothing to the imagination when it comes to divining its intent. In connection with health care fraud, for example, Congress added this language to the statute: "With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section." 18 U.S.C. 1347(b).
  3. A frequent question (and one which was dominant in the Rehaif case) is deciding whether the element is necessary to prove that a crime occurred at all; absent that element, in other words, the defendant’s conduct would be entirely legal. Thus, in Rehaif, there is nothing illegal about possessing a gun, unless you are a prohibited person. And therefore, you must be shown to know that you are a prohibited person, otherwise you would not know that you are committing a crime. But in our hypothetical sale of an unregistered security case, the age of the purchaser is certainly not what distinguishes innocent from criminal conduct. So using this test, the age of the purchaser is not a fact that the government must prove that the defendant knew.
  4. Is there legislative history including prior versions of the statute that have been amended to show a legislative intent to include or exclude the particular element that the government must prove that the defendant knew?
  5. If the victim of a crime must have a certain occupation, the prosecution is not required to prove that the defendant knew the victim’s occupation. Thus, a defendant who kills a DEA agent, or a federal judge is guilty of that crime, regardless of whether the defendant knew the victim’s occupation. United States v. Feola, 420 U.S. 671 (1975); United States v. Berki, 936 F.2d 529 (11th Cir. 1991); United States v. Benitez, 741 F.2d 1312 (11th Cir. 1984). The Feola Court held that because the statute outlawing assaulting a federal officer is not designed as an obstruction statute, but rather, a statute that is designed to protect federal officials, there is no requirement that the defendant have knowledge of the intended victim of the assault.
  6. Similarly, the age of the victim or accomplice is not a fact that the defendant must know, even if the victim’s or accomplice’s age is an element of an offense. United States v. Daniels, 685 F.3d 1237 (11th Cir. 2012); United State v. Williams, 922 F.2d 737 (11 Cir. 1991). However, in United States v. X-Citement Video, 513 U.S. 64 (1994), the Court held that in a prosecution for knowingly possessing or transporting child pornography, the government is required to prove that the defendant knew the age of the child portrayed in the video. And it is well known to lawyers in state court prosecutions that the crimes of child molestation and statutory rape do not require proof that the defendant knows the age of the child.
  7. What about proof that a defendant knew that a gun he possessed in connection with a drug offense was a machine gun? The Eleventh Circuit has held that there is no requirement that the government prove that the defendant even knew the characteristics of the weapon in order to “trigger” an enhanced mandatory minimum sentence. United States v. Haile, 685 F.3d 1211 (11th Cir. 2012). There, the court held that even if an element is a mandatory sentencing factor that must be proven at trial, the defendant need not know that element of the offense.
  8. Rehaif represented a dramatic change in the law in situations where the defendant’s legal status is an element of the offense. Yet, in other cases, where the defendant is charged with assisting an illegal alien enter the country, the courts have always held that the defendant must be proven to know the other person’s legal status. United States v. Lopez, 590 F.3d 1238 (11th Cir. 2009); United States v. Dominguez, 661 F.3d 1051 (11th Cir. 2011).
  9. In a hazardous waste case, the court has held that the government is not required to prove that the defendant had knowledge that the contents of the containers were defined by the EPA as “hazardous waste” but the defendant must generally know of the hazardous character of the chemical. United States v. Goldsmith, 978 F.2d 643 (11th Cir. 1992).
  10. The hazardous waste cases and the "legal status" cases involve “facts” that are not like the typical “historical facts” in the earlier examples. Instead, these cases focus on whether the defendant must know certain legal requirements, such as the EPA definition of what qualifies as “hazardous" and when is a person defined as an "illegal alien?" These cases introduce the topic of what law the defendant must be proven to know (or not). One of the early cases to address this topic was Liparota v. United States, 471 U.S. 419 (1985). In that case, the defendant was charged with “knowingly using coupons . . . in a manner not authorized by the Food Stamp Act.” Was the government required to prove that the defendant knew the food stamp laws that prohibited a store owner from purchasing coupons from a customer at a discount rate? The Supreme Court held that the government was required to prove the defendant’s knowledge of the regulations. Justice Brennan, writing for a 6-person majority relied on the Rule of Lenity in holding that the knowledge requirement applied to the “not authorized” clause. Justice Brennan feared that because of the complexity of the Food Stamp Act, any other holding would potentially criminalize the behavior of defendants who had no idea that their use of Food Stamps might be against the law. Again, however, Congress can bleach this knowledge requirement out of the statute, as it did in the health care fraud statute when it wrote, "With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section." 18 U.S.C. 1347(b).

It should be apparent that knowing what must be known defies simple answers. And to the list of problems that confront us should be added, as well, questions of what it means to “know” something in the first place? Deliberate ignorance? Negligence? Recklessness? Knowledge of a co-conspirator being attributed to the defendant? Those are questions for another day.

Part 3 will address the issue: Does the government have to prove that the defendant knew the conduct was criminal?