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Rehaif - Part III -- What Does "Willfully" Mean?

by: Don Samuel

Anybody who has tried to research the question, “What does it mean when a statute says that the government must prove that the defendant acted willfully?” knows that virtually every appellate decision starts with the observation, “The term ‘willfully’ has many meanings, and its construction is often influenced by its context.” (Imagine, at this point, a string of citations a mile long). The problem is that figuring out which of “many meanings” applies for any particular statute is a crap shoot. And announcing that the meaning is “influenced by its context” provides no guidance at all.

In the previous post about Rehaif, we focused on when is the government required to prove that the defendant had knowledge about a specific element of the offense. In this reflection on Rehaif the question is broader: When is the government required to prove that the defendant knew that he was engaged in criminal conduct, regardless of how many elements of the offense he knew about? That is often how the courts distinguish between the “knowledge” aspect of mens rea and the “willfulness” aspect. One acts with knowledge when he or she acts with knowledge about certain facts (though, as pointed out last week, it may well be that one of the elements that must be known is the existence of a regulation or a license requirement). One acts willfully, on the other hand, when one acts with the purpose to violate the criminal law, or at least with the knowledge that jail may be the consequence of engaging in the particular conduct.

Not so fast, though. These may be law school distinctions but given that we are cautioned that “willfully” has many meanings we should hesitate to ascribe just one meaning. Consider, for example, some of these criminal code sections (i.e., the “context” which might influence the meaning):

18 U.S.C. § 1735(a) Whoever-- (1)willfully uses the mails for the mailing … of any sexually oriented advertisement in violation of section 3010 of title 39, or willfully violates any regulations of the Board of Governors issued under such section [is guilty of a felony].
18 U.S.C. § 1520(b) Whoever knowingly and willfully violates subsection (a)(1), or any rule or regulation promulgated by the Securities and Exchange Commission under subsection (a)(2), shall be fined under this title, imprisoned not more than 10 years.
29 U.S.C. § 666(e): Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations [is guilty of criminal OSHA violation).
18 U.S.C. § 1001: Whoever shall knowingly and willfully … make any false or fraudulent statement [is guilty of a felony].
26 U.S.C. § 7201: Any person who willfully attempts … to evade or defeat any tax [is guilty of tax evasion].
15 U.S.C. § 1990c (repealed): “[a]ny person who knowingly and willfully commits any act or causes to be done any act that violates any provision of this subchapter [is guilty of odometer fraud offense].
47 U.S.C. § 501: Any person who willfully and knowingly does or causes or suffers to be done any act, matter, or thing, in this chapter prohibited or declared to be unlawful [is guilty of violating licensing provisions relating to radio transmissions].

With regard to each of these statutes, does the term “willfully” mean that the defendant purposely must violate the criminal statute? Is it sufficient if the defendant knowingly engages in certain conduct, regardless of whether he or she knows the criminal law consequences? How about if the defendant knows he is violating an underlying regulatory order or licensing requirement, but does not know that it is a crime to violate the order or the licensing requirement? And when the statute requires that the defendant “knowingly and willfully” do something that the law forbids, what added aspect of the defendant’s state of mind is required to be shown by these seemingly separate (or are they redundant?) requirements. Similarly, if the defendant must “knowingly and willfully” violate the law, can the defendant be innocent if he acts knowingly but not willfully? Or willfully but not knowingly? In the first statute cited above, 18 USC § 1735, is there a difference between “willfully using the mails” and “willfully violating a regulation” as far as the required proof of the defendant’s knowledge of the criminality of the conduct? With regard to § 1001, is there any requirement that the defendant know about the criminal nature of the conduct? So many questions; so few answers.

The decisions from the Supreme Court and the federal appellate courts just accentuate the muddle.

One of the significant cases to discuss this topic was Cheek v. United States, 498 U.S. 192 (1991). The Supreme Court held that 26 U.S.C. § 7201, requires not just that the defendant fail to report income, but that he knew he was required to report his income and failed to do so, knowing that he was violating the criminal law by failing to do so. The Court held that this level of proof was necessary because of the complexity of the tax code and to avoid criminal penalties being imposed on unsuspecting citizens. It is worth noting that Mr. Cheek, an airline pilot, did not report his income, because he thought that his paycheck was the “barter” that he received in exchange for his time in the cockpit and a simple exchange (or sale) of assets -- including his time -- did not qualify as income. Not exactly the most complex aspect of the criminal code.

The Supreme Court also held that the then-existing anti-structuring law also required this heightened proof of mens rea in Ratzlaf v. United States, 510 U.S.135 (1994). Again, the Court held that the complexity of the anti-structuring law required this level of proof. Congress responded almost immediately by deleting “willfully” from the anti-structuring statute. 31 U.S.C. § 5324(d).

The next step in the “willfulness” jurisprudence in the Supreme Court occurred in Bryan v. United States, 524 U.S. 184 (1998). Bryan held that the “willfulness” requirement in the firearm licensing statute (18 U.S.C. § 922(a)(1)(A) and § 924(a)(1)(D)) did not require proof that the defendant was either aware of the licensing statute or intentionally violated a known legal duty. Rather, all that is required is proof that the defendant knew in a general sense that his or her conduct was unlawful. The Supreme Court approved the instruction given by the District Court that tracked the Eleventh Circuit Pattern Instruction:

A person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law. Now, the person need not be aware of the specific law or rule that this conduct may be violating. But he must act with the intent to do something that the law forbids.

Justice Scalia expressed outrage: He queried whether a defendant could be found guilty of willfully violating the firearm licensing requirement (selling a firearm without having a license to do so), if the defendant had no idea about the licensing requirement that applied to him, but was aware that he had double-parked in a no-parking zone when he sold the firearm, or violated the speed limit law when he rushed to the scene of the planned sale of the firearms. Was that a sufficient “intent to do something the law forbids” that would support a conviction for willfully violating the firearm licensing statute? Id. at 202.

So much for SCOTUS’s contribution to the definition of “willfulness” in criminal statutes. Next stop, the federal appellate courts. Those courts have formulated a number of tests to determine the level of criminal culpability that should be required in order to be convicted of willfully committing the offense. Here are some of the tests, assuming the statute is not clear on its face:

  1. If the statute is very complicated, then the government must prove more about the defendant’s knowledge. Other than the tax code, few statutes have earned the status of complexity under this standard, though the Eleventh Circuit recently held that the Armed Export Control Act was sufficiently complex that a conviction required proof that the defendant knew the criminal law and licensing requirements she was violating. United States v. Wenxia Man, 891 F.3d 1253, 1267–68 (11th Cir. 2018).
  2. If the statute involves a dangerous activity, the government is required to prove less about the defendant’s knowledge.
  3. If the statute involves obviously evil conduct (or malum in se), the government is required to prove less.

Of course, these are not easy tests to apply. For example, is the entire tax code complicated? Is it complicated to understand that if you receive a W-2 from your employer, you have income that should be reported and that your time in the cockpit is not “traded” for your weekly salary (like selling your old refrigerator for $50 does not result in $50 income on your tax return)? In other words, is a statute either all or nothing? Or can certain aspects of a criminal law be complicated, while other aspects not?

And what if a case involves conduct that is dangerous – exporting military equipment to China, for example – but also involves a complex statutory scheme, two criteria that point in opposite directions. Again, the recent Xenia Man case exemplifies this problem. See also United States v. Adames, 878 F.2d 1374, 1377 (11th Cir. 1989).

How do we reconcile the cases that involve statutes that require proof of “willful” violation, but uphold a conviction if the government proves only that the defendant knew what he was doing, regardless of whether he had any knowledge whatsoever about the illegality of his conduct? The Eleventh Circuit held that the term “willfully” in 29 U.S.C. § 186(d) (Taft-Hartley Act) only requires proof of general intent. United States v. Phillips,19 F.3d 1565 (11th Cir. 1994). This law proscribes certain improper payments from an employer to a representative of an employee, or a union. The court held that the “willfully” element of the offense only requires proof that the defendant was aware that a payment was being made. The government is not required to prove that the defendants were aware of the specific provisions in the Taft-Hartley Act which proscribe these payments.

Rehaif, having overruled all twelve Circuits when it insisted that the government prove the defendant knows his immigration status, has proven that the mens rea requirements are not easy to divine, and certainly not by simply reading the statute.

So, the answer to the question, “What does ‘willfully’ mean in a criminal statute?” the most cogent response is, “The term ‘willfully’ has many meanings.”