Authentically innocent: Juries and federal regulatory crimes

Hastings Law Journal

Volumn 59, Issue 1, 2007, Pages 137-194

  Meyer, Jeffrey A ^a  

^a QUINNIPIAC UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 38349143466     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (278)

1. Morissette v. United States, 342 U.S. 246, 276 (1952).
2. AKHIL REED AMAR. THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 122 (1997).
3. Id. at 123; see also Stephanos Bibas, Harmonizing Substantive-Criminal-Law Values and Criminal Procedure: The Case of Alford and Nolo Contendere, 88 CORNELL L. REV. 1361, 1401 (2003) ("The jury serves as the chorus of a Greek tragedy, 'the conscience of the community.' It applies the community's moral code, pronounces judgment [and with its] solemn pronouncement of guilt confront[ing] the offender at length with his wrongful deeds ... driv[es] home in undeniable detail the wrongfulness of the crime." (citations and footnotes omitted)); Daryl K. Brown, Plain Meaning, Practical Reason, and Culpability: Toward a Theory of Jury Interpretation of Criminal Statutes, 96 MICH. L. REV. 1199, 1207-08 (1998) ("a guilty verdict is at bottom a moral assessment of blameworthiness" and "the verdict serves criminal law's expressive function of assessing the moral quality of his judgment, and thereby his character").
4. See discussion infra Part II.A.
5. See discussion infra Part II.B.
6. See discussion infra Part I.
7. See discussion infra Part II.C.
8. See discussion infra Part I.
9. Liparota v. United States, 471 U.S. 419, 426 (1985).
10. United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994).
11. Carter v. United States, 530 U.S. 255, 269 (2000) (quoting X-Citement Video, 513 U.S. at 72).
12. John Shepard Wiley, Jr., Not Guilty by Reason of Blamelessness: Culpability in Criminal Interpretation, 85 VA. L. REV. 1021, 1022 (1999) (describing and praising the apparent innocence approach as "a method of statutory construction that [he calls] the rule of mandatory culpability" and that is "an important and welcome development" over the traditional public welfare doctrine); see Richard Singer & Douglas Husak, Of Innocence and Innocents: The Supreme Court and Mens Rea Since Herbert Packer, 2 BUFF. CRIM. L. REV. 859, 888 (1999) (praising apparent innocence rule as "breathfing] new life into [the Court's] oft-repeated view that mens rea is an essential part of criminal law"); Stephen F. Smith, Proportionality and Federalization, 91 VA. L. REV. 879, 889 (2005) (noting that "[t]he Supreme Court has a satisfactory record-lately, at least-of construing federal statutes to exempt morally blameless conduct from criminal condemnation" and that it "uses heightened mens rea requirements to hard-wire into the definition of the crime judicially enforceable protections for blameless conduct"); cf. Joseph E. Kennedy, Making the Crime Fit the Punishment, 51 EMORY L. J. 753, 756-63, 842-47 (2002) (approving results reached by the "apparent innocence" cases but critiquing Wiley and arguing that the result of these cases is explained by the Supreme Court's wish to avoid incarceration of a defendant who did not know he was doing wrong); Note, The New Rule of Lenity, 119 HARV. L. REV. 2420, 2434-35 (2006) (describing apparent innocence rule as part of a "new rule of lenity" generally applied by the Rehnquist Court when confronted with ambiguous statutes).
13. A blameless defendant does not know that her conduct violated either a particular law or a societal standard that she believed would likely be the subject of some legal prohibition. Of course, true "moral blameworthiness" for conduct may not turn exclusively on a defendant's state of mind as to the elements of an offense but depend instead on the existence of extenuating circumstances that are not sufficiently severe to support a legal defense of necessity or duress-for example, the poor mother who steals a loaf of bread to feed her hungry-but-not-starving children. This Article does not attempt to address all such choice-of-two-evil situations in which a defendant might be said to be morally blameless; it focuses more narrowly on the conviction of defendants who are ignorant or misled about aspects of the elements of the offense.
14. Morissette v. United States, 342 U.S. 246, 276 (1952).
15. For articles suggesting constitutional limits on the authority of Congress to impose strict liability, see Alan C. Michaels, Constitutional Innocence, 112 HARV. L. REV. 828, 829 (1999), and Ann Hopkins, Comment, Mens Rea and the Right to Trial by Jury, 76 CAL. L. REV. 391, 397 (1988).
16. See Ronald Wright, Trial Distortion and the End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79, 90-91 (2005) (reviewing statistics showing increase in federal guilty pleas to historic high of more than 95% of cases in 2002); cf. Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 YALE L. J. 1097, 1099 (2001) ("The reigning academic orthodoxy is preoccupied with jury trials, making them the center of attention and devoting countless articles to them.").
17. United States v. Gaudin, 515 U.S. 506, 522-23 (1995).
18. Cunningham v. California, 127 S. Ct. 856, 860 (2007); United States v. Booker, 543 U.S. 220, 235 (2005); Blakely v. Washington, 542 U.S. 296, 305 (2004); Apprendi v. New Jersey, 530 U.S. 466, 484 (2000).
19. 26 U.S.C. §§ 5861(d), 5871 (2000).
20. See 26 U.S.C. § s84s(a)-(f) (2000) (defining "firearm" to include eight broad categories of dangerous weapons, principally including machine guns, shotguns with barrels less than eighteen inches in length, rifles with barrels less than sixteen inches in length, silencers, and destructive devices such as bombs, grenades, and other explosive devices).
21. William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 HARV. L. REV. 2548, 2568 (2004).
22. As distinct from a "specific intent" crime, a "general intent" crime prohibits certain conduct but without explicitly requiring that the defendant have intended or desired by her conduct to break the law or to do wrong (such as to defraud). See SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES 230 (1989) (defining "general intent" offense to include situations where "it is sufficient to convict when the defendant did what in ordinary speech we would call simply an intentional action," without proof that the defendant intended further consequences from his action). Of course, in light of the more refined mental state definitions set forth in the Model Penal Code, the terms "general intent" and "specific intent" have fallen into some disfavor. See United States v. Bailey, 444 U.S. 394, 403 (1980). However, the terms have not fallen into disuse. See, e.g., Carter v. United States, 530 U.S. 255, 268-69 (2000). The term "regulatory" offense also defies precise definition but ordinarily refers to "a broad collection of statutes dealing with matters within the purview of federal, state, and local administrative agencies, such as the environment, product and workplace safety, labor and employment, transportation, trade, the issuance of securities, the collection of taxes, housing, and traffic and parking." Stuart P. Green, Why It's a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 EMORY L. J. 1533; 1544 (1997); accord Susan L. Pitcher, Ignorance, Discretion and the Fairness of Notice: Confronting 'Apparent Innocence' in the Law, 33 AM. CRIM. L. REV. 1, 32 (1995) ("Estimates suggest that over three hundred thousand federal regulations are punishable by criminal penalties enforceable through the combined efforts of as many as two hundred different federal agencies.").
23. See BUREAU OF JUSTICE STATISTICS, FEDERAL CRIMINAL JUSTICE TRENDS 1 tbl.1 (2003) [hereinafter JUSTICE STATISTICS] (showing upward historical trends from 1994 for drug, weapons, and immigration arrests, while showing relatively flat level of property and violent crime cases), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/fcjtO3.pdf. The most commonly charged statutes in each of these categories are "general intent" offenses, as I define that term. See id. at 8-10 figs.9, 11 & 13; see also 8 U.S.C. § 1326 (2000) (illegal reentry into the United States by a previously deported alien); 18 U.S.C. § 922(g)(1) (2000) (illegal possession of a firearm by a convicted felon); 21 U.S.C. § 841 (2000) (drug dealing); UNITED STATES SENTENCING COMMISSION, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS fig.A (2005) [hereinafter SENTENCING COMMISSION] (indicating that for fiscal year 2005, drug cases (34.2%), immigration cases (25.0%), and firearms cases (12.2%) total 71.4%), available at http://www.ussc.gov/ANNRPT/2005/Fig-a.pdf.
24. See JUSTICE STATISTICS, supra note 23, at 20 tbl.15 (2003).
25. A specific intent requirement "demands that the government prove that a defendant had general knowledge of the law which forbade his actions and acted with the specific intent to circumvent that law. But the government need not prove the defendant had knowledge of the specific regulation governing the conduct engaged in-in other words, a defendant cannot avoid prosecution by claiming that [he or she] had not brushed up on the law." United States v. Brodie, 403 F.3d 123,147 (3d Cir. 2005) (internal quotations and citations omitted); accord Samuel W. Buell, Novel Criminal Fraud, 81 NYU L. REV. 1971, 2032 (2006) ("Criminal fraud laws, like most other important white-collar prohibitions, require a showing of 'specific intent' (a purpose to defraud, to obstruct justice, to falsify government reports, etc.)."). Examples of such common federal "specific intent" offenses-ones that expressly require in their text a defendant's knowledge, purpose, or intent to do wrong-include mail, wire, and bank fraud, 18 U.S.C. §§ 1341, 1343, 1344 (2000), robbery and larceny, 18 U.S.C. § 2113(a)-(b) (2000), money laundering, 18 U.S.C. § 1956 (2000), and obstruction of justice. See, e.g., Arthur Anderson LLP v. United States, 544 U.S. 696, 696 (2005) (interpreting "knowingly . . . corruptly" requirement of federal obstruction of justice statute, 18 U.S.C. §1512(b)). To the extent that a general intent crime may be charged as a conspiracy, attempt, or aiding-and-abetting offense, a defendant's purpose or knowledge to do wrong is also required. See, e.g., Braxton v. United States, 500 U.S. 344, 350-51 (1991) (noting that a charge of attempt to kill a federal officer under 18 U.S.C. § 1114 requires proof of defendant's intent to kill the officer); United States v. Feola, 420 U.S. 671, 691 (1975) (noting prevailing rule that "a conspiracy, to be criminal, must be animated by a corrupt motive or a motive to do wrong"); Nye & Nissen v. United States, 336 U.S. 613, 620 (1949) (finding that aiding and abetting liability established where defendant "consciously shares in any criminal act").
26. See, e.g., 8 U.S.C. § 1326 (2000) (unlawful reentry by alien); 18 U.S.C. § 1955 (2000) (conducting an illegal gambling business); 26 U.S.C. § 5861 (2000) (possession of certain types of firearms without a permit).
27. See, e.g., 18 U.S.C. §922(g)(1) (2000) (unlawful gun possession by a previously convicted felon); 18 U.S.C. § 2252A(a)(1) (2000) (mailing, transporting, or shipping child pornography); 21 U.S.C. § 841(3) (2000) (drug dealing). One notable exception is a recent amendment by Congress to an anti-terrorism statute that specifies the type of knowledge a defendant must be proved to have had. See 18 U.S.C. § 2339B(a)(1) (2000) (prohibiting "knowingly provid[ing] material support or resources to a foreign terrorist organization" and further specifying that "[t]o violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization . . . that the organization has engaged or engages in terrorist activity . . . or that the organization has engaged or engages in terrorism"). Congress added the specific knowledge description to § 2339B only after a court challenge to the law and in light of the government's litigating position that a donor could be convicted for materially supporting a terrorist organization even if the donor did not know of the organization's terrorist activities. See 18 U.S.C. § 23396, as amended by Pub. L. 108-458, § 6603(c) (2000); Humanitarian Law Project v. U.S. Dept. of Justice, 352 F.3d 382, 399-403 (gth Cir. 2003), vacated on other grounds, 382 F.3d 1154 (9th Cir. 2004).
28. See Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 SUP. CT. REV. 345, 369 (1994) [hereinafter Kahan, Lenity]; see also Dan M. Kahan, Ignorance of the Law Is an Excuse-But Only for the Virtuous, 96 MICH. L. REV. 127, 153 (1997) [hereinafter Kahan, Ignorance of the Law] (noting that despite the maxim "that legislatures alone are responsible for defining crimes . .. criminal statutes typically emerge from the legislature only half-formed and must be completed through contentious, norm-laden modes of interpretation that are functionally indistinguishable from common-law making").
29. See Staples v. United States, 511 U.S. 600, 605 (1994).
30. United States v. U.S. Gypsum Co., 438 U.S. 422, 438 (1978).
31. Bryan v. United States, 524 U.S. 184, 196 (1998) (noting the "traditional rule that ignorance of the law is no excuse"); see also Kahan, Ignorance of the Law, supra note 28 (discussing "classic" Holmesian view for disallowance of "mistake of law" doctrine and proposing alternative "anti-Holmesian" view).
32. See Matthew P. Harrington, The Law Finding Function of the American Jury, 1999 WISC. L. REV. 377, 434-35 (1999); William E. Nelson, Marbury v. Madison, Democracy, and the Rule of Law, 71 TENN. L. REV. 217, 220 (2004).
33. See, e.g., Cheek v. United States, 498 U.S. 192, 200-01 (1991) (requiring violation of "known legal duty" for "willfulness" ); United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971).
34. See Dixon v. United States, 126 S. Ct. 2437, 2441 (2006) ('"Unless the text of the statute dictates a different result, the term "knowingly" merely requires proof of knowledge of the facts that constitute the offense.'" (quoting Bryan, 524 U.S. at 193) (emphasis added)); Staples, 511 U.S. at 605 (referring in passing to "a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal") (emphasis added). As shown below, despite these statements, the Supreme Court has not actually required a defendant to have knowledge of every fact that renders her conduct illegal.
35. H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW 31 (Oxford Univ. Press 1968) (noting that a "strict liability" crime is one "where it is not defence to show that the accused, in spite of the exercise of proper care, was ignorant of the facts that made his act illegal"); Kenneth W. Simons, When Is Strict Criminal Liability Just?, 87 J. CRIM. L. & CRIMINOLOGY 1075, 1079 (1997) ("Strict criminal liability is conventionally understood as criminal liability that does not require the defendant to possess a culpable state of mind."); Wiley, supra note 12, at 1031-33 (noting "one common meaning" of strict liability "that refers to a crime that has at least one element as to which no mental state is required" and a "second meaning of 'strict liability' [that] describes criminal liability that arises upon proof that a defendant has done a forbidden act, without any proof about that defendant's mental state," but adopting third definition of "strict liability" to mean "liability without proof of culpability, not liability without proof of mental state").
36. Morissette v. United States, 342 U.S. 246, 253-56 (1952) (describing advent of crimes without "any ingredient of intent" in light of the "industrial revolution," the "[c]ongestion of cities," the "[t]raffic of velocities, volumes and varieties unheard of [that] came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct," and the "[w]ide distribution of goods [that] became an instrument of wide distribution of harm"). See generally Francis B. Sayre, Public Welfare Offenses, 33 COLUM. L. REV. 55 (1933).
37. United States v. Dotterweich, 320 U.S. 277, 284-85 (1943) (noting that "[h]ardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting," and "[o]ur system of criminal justice necessarily depends on 'conscience and circumspection in prosecuting officers'" (quoting Nash v. United States, 229 U.S. 373, 378 (1913))).
38. 258 U.S. 250, 254 (1922).
39. 320 U.S. at 281.
40. 342 U.S. at 262.
41. 402 U.S. 558, 559, 563 (1971).
42. See Morissette, 342 U.S. at 248-49.
43. Id. at 250.
44. 401 U.S. 601 (1971).
45. See id.
46. Id. at 607.
47. Id. at 608.
48. Liparota v. United States, 471 U.S. 419, 420 (1985).
49. Id. at 421.
50. Id. at 422-23.
51. Id. at 425-26 (quoting United States v. U.S. Gypsum Co., 438 U.S. 422, 438 (1978)).
52. Id. at 426.
53. Id. at 426-27.
54. Id. at 433.
55. 511 U.S. 600, 602-03 (1994).
56. Id. at 603.
57. Id. at 601-02.
58. Id. at 615.
59. Id. at 609.
60. Id. at 610.
61. Id. (quoting Liparota v. United States, 471 U.S. 419, 426 (1985)).
62. Id. at 611.
63. Id. at 618.
64. Id. at 620.
65. 513 U.S. 64 (1994).
66. Id. at 67-68 (quoting 18 U.S.C. § 2252 (1988 & Supp. V 1993)).
67. Id. at 68.
68. Id. at 69.
69. Id. at 72.
70. Carter v. United States, 530 U.S. 255, 269 (2000) (quoting X-Citement Video, 513 U.S. at 72).
71. 510 U.S. 135, 140 (1994) (citing 31 U.S.C. § 5322(3) (1988 & Supp. V 1993)).
72. Id. at 150 (Blackmun, J., dissenting).
73. Id.; see also United States v. Ratzlaf, 976 F.2d 1280,1281-82 (9th Cir. 1992).
74. Ratzlaf, 510 U.S. at 150 (Blackmun, J., dissenting).
75. Id.
76. Id.
77. Id.
78. Id.
79. Id. at 140 (majority opinion).
80. Id. at 138.
81. See id. at 142,148; see also Cheek v. United States, 498 U.S. 192 (1991).
82. Cheek, 498 U.S. at 202-03.
83. Ratzlaf, 510 U.S. at 146-47 11.17; see also id. at 158-59 (Blackmun, J., dissenting) (reviewing legislative history).
84. Id. at 144 (majority opinion).
85. Id. at 144, 145 (footnotes omitted).
86. Id. at 146.
87. Id. at 151 (Blackmun, J., dissenting). Blackmun urged that Cheek be limited to the complex context of the internal revenue code. Id. at 157.
88. Id. at 155.
89. Id. at 162. Congress was not amused by the Court's Ratzlaf decision and promptly amended the statute to make clear that a structurer need not know his conduct to be illegal. See Money Laundering Suppression Act of 1994, Pub. L. No. 103-325, § 411(3), (c)(1), 108 Stat. 2160, 2253 (codified at 31 U.S.C. §§ 5322(a)-(b), 5324(0) (1994)).
90. 524 U.S. 184 (1998).
91. Id. at 188-89.
92. Id. at 189.
93. Id.
94. Id.
95. Id. at 191 (citing Spies v. United States 317 U.S. 492, 497 (1943)).
96. Id. at 193.
97. Id. at 194.
98. Id. at 196.
99. Id. at 202 (Scalia, J., dissenting).
100. Id.
101. Id.
102. Id.
103. Id.
104. Id. at 202-03.
105. Id. at 205.
106. See Rogers v. United States, 522 U.S. 252, 254-55 (1998) (plurality opinion) ("[T]he mens rea element of a violation of § 5861(d) requires the Government to prove that the defendant knew that the item he possessed had the characteristics that brought it within the statutory definition of a firearm. It is not, however, necessary to prove that the defendant knew that his possession was unlawful, or that the firearm was unregistered." (footnote omitted)).
107. The same would hold true under the Model Penal Code, because the Code forecloses a "mistake of fact" defense as to any fact for which a defendant is not otherwise required to have had a culpable state of mind. See MODEL PENAL CODE § 2.044(1)(a) (1962); George Fletcher, Dogmas of the Model Penal Code, 2 BUFF. CRIM. L. REV. 3, 17 (1998) (noting that, under the Code "[i]f no state mental [sic] is required for the particular element, then a mistake as to that element is irrelevant," and this "eliminates the problem of mistake as an independent arena of moral and theoretical inquiry").
108. See V.F. Nourse, Hearts and Minds: Understanding the New Culpability, 6 BUFF. CRIM. L. REV. 361, 365 (2002).
109. Id. at 365-66 (2002); see also Kyron Huigens, What Is and Is Not Pathological in Criminal Law, 101 MICH. L. REV. 811, 815 (noting how "culpability provisions of the [Model Penal] Code did not merely simplify and consolidate traditional mens rea categories" but "also eschewed the kind of frank normative assessments featured in traditional criminal fault concepts such as 'implied malice' and 'depraved heart'").
110. United States v. Bailey, 444 U.S. 394, 406 (1980) (noting that "[c]lear analysis requires that the question of the kind of culpability required to establish the commission of an offense be faced separately with respect to each material element of the crime" (internal quotation marks ommitted)); MODEL PENAL CODE AND C OMMENTARIES § 2.02 at 229 (1985).
111. Hopkins, supra note 15, at 401.
112. E.g., Rachel E. Barkow, Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. PA. L. REV. 33, 49-51 (2003) (noting that "[t]he Fifth Amendment's Double Jeopardy Clause protects the jury's general verdict of acquittal, whether it is because the jury disagrees that the facts establish legal guilt or because the jury believes that, although the defendant is guilty under the letter of the law, she should not be deemed morally blameworthy because of some higher principle of justice"); see also Lawrence M. Solan, Jurors as Statutory Interpreters, 78 CHI.-KENT L. REV. 1281, 1282-83 (2003) ("Deciding whether a statute applies to a given set of facts is what judges do when they interpret statutes, and it is part of the jury's job as well."); cf. Brown, supra note 3, at 1204 (noting that juries "must interpret law in order to apply it, and that interpretive process occurs in a broad context of considerations beyond the text's plain meaning or the legislature's intent"); Nancy L. Marder, The Myth of the Nullifying Jury, 93 NW. U. L. REV. 877, 882, 908-10 (1999) (discussing jury's unreviewable power to nullify and arguing that juries have legal gap-filling interpretive role akin to judges). In defense of the commentators, I should note that the Supreme Court has also proclaimed the jury's historical role to be more than mere fact finding and to apply the law to facts. See United States v. Gaudin, 515 U.S. 506, 513 (1995) (noting that "[j]uries at the time of the framing could not be forced to produce mere 'factual findings,' but were entitled to deliver a general verdict pronouncing the defendant's guilt or innocence" and noting "the historical and constitutionally guaranteed right of criminal defendants to demand that the jury decide guilt or innocence on every issue, which includes application of the law to the facts"). But the Court has not taken account of the instructional practice in the federal courts today as described above. So, for example, in Gaudin, the Court held that the jury-not the judge-must determine the element of "materiality" in a federal false statement case, yet without suggesting that juries may freely interpret the meaning of "materiality"; in fact, standard jury instructions particularize the definition of "material" to mean a statement that is naturally capable of influencing the decision of the relevant decisionmaker. See, e.g., KEVIN F. O'MALLEY ET AL., FEDERAL JURY PRACTICE AND INSTRUCTIONS § 40.03 (6th ed. 2006); see also Kungys v. United States, 485 U.S. 759, 770 (1988) (defining materiality).
113. 18 U.S.C. § 922(g) (2000).
114. See, e.g., United States v. Aguirre, 108 F.3d 1284, 1288-90 (10th Cir. 1997); United States v. Gillespie, 61 F.3d 457,459 (6th Cir. 1995).
115. See United States v. Wilkerson, 411 F.3d 1, 9-10 (1st Cir. 2005) (collecting cases); United States v. Shambry, 392 F.3d 631, 634-35 n.1 (3d Cir. 2004) (same); O'MALLEY ET AL., supra note 112, at § 39.14. The common instructional formbooks include O'MALLEY ET AL., supra note 112, and LEONARD SAND ET AL., MODERN FEDERAL JURY INSTRUCTIONS (Matthew Bender 2005).
116. O'MALLEY ET AL., supra note 112, at § 20.07 (describing manner in which court should respond to questions from jury during deliberations).
117. Horning v. District of Columbia, 254 U.S. 135, 138 (1925).
118. See, e.g., United States v. Carr, 424 F.3d 213, 219-20 (2d Cir. 2005) ("[A] trial court is not required to inform a jury of its power to nullify. . . . [T]he power of juries to 'nullify' or exercise a power of lenity is just that-a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent." (citations omitted)); United States v. Edwards, 101 F.3d 17, 19-20 (2d Cir. 1996) (collecting cases to the effect that "juries have the power to ignore the law in their verdicts, [but] courts have no obligation to tell them they may do so"); United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993) ("[W]hile jurors may choose to flex their muscles, ignoring both law and evidence in a gadarene rush to acquit a criminal defendant, neither the court nor counsel should encourage jurors to exercise this power.").
119. O'MALLEY ET AL., supra note 112, at § 12.01 ("It is your duty as jurors to follow the law as stated in all of the instructions of the Court and to apply these rules of law to the facts as you find them to be from the evidence received during the trial."); accord NINTH CIRCUIT MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS 3.1 (2003); PATTERN CRIMINAL FEDERAL JURY INSTRUCTIONS FOR THE SEVENTH CIRCUIT 1.01 (1998) (instructing that "[y]our first duty is to decide the facts from the evidence in this case," and "[y]our second duty is to apply the law that I give you to the facts," and "[y]ou must follow these instructions, even if you disagree with them").
120. Shari Seidman Diamond, Beyond Fantasy and Nightmare: A Portrait of a Jury, 54 BUFF. L. REV. 717, 749 (2006).
121. See United States v. Thomas, 116 F.3d 606,616 (2d Cir. 1997).
122. O'MALLEY ET AL., supra note 112, at § 12.01 (emphasis added).
123. See FED. R. EVID. 401, 402. The concern is more than theoretical, as reflected by examples of such successful motions in limine to preclude evidence of a defendant's innocent state of mind in Part II.A below.
124. See SENTENCING COMMISSION, supra note 23.
125. See Federal Justice Statistics Resource Center, Number of Defendants in Cases Filed, http://fjsrc.urban.org/analysis/t_sec/title.cfm? stat=i&year=2oo5&t_ch=tsec&str_title=+8&title=+8 (check "All sections" box and choose display option) (showing 11,652 cases charged under 8 U.S.C. §§ 1326, 1326(a), and 1326(b) in 2005 of 17,371 total immigration cases charged) (last visited Oct. 31, 2007); JUSTICE STATISTICS, supra note 23, at 8 fig.g (showing increase in immigration cases from 5,526 in 1994 to 20,341 in 2003, with nearly 12,000 immigration cases in 2003 being illegal reentry prosecutions).
126. See JUSTICE STATISTICS, supra note 23, at 8 fig.9.
127. See SENTENCING COMMISSION, supra note 23, at fig.E (including average sentence for post-Blakely immigration cases in FY2004 and pre-Booker cases in FY2005 of 22.9 months' imprisonment), available at http://www.ussc.gov/ANNRPT/2005/Fig-e-post.pdf.
128. 8 U.S.C. § 1326(a)(2) (2000).
129. See United States v. Johnson, 87 F. App'x. 195, 196 (2d Cir. 2004) (rejecting argument that defendant "should have been allowed to present evidence that he believed in good faith that his past military service in the United States armed forces qualified him for naturalization, and he consequently did not know that he was not permitted to reenter the United States"); see also United States v. Sotelo, 109 F.3d 1446, 1447-48 (9th Cir. 1997) (holding that defendant's belief that he was a national and not an alien was not a defense to unlawful reentry charge). This Article cites unpublished cases such as Johnson above, not because they are binding as precedent, but because they indicate how the courts will treat particular claims; indeed, the fact that the courts have disposed of some claims by unpublished opinion is indicative of the court's view that the issues decided are well-settled by precedent and not worthy of formal publication. See, e.g., 2ND CIR. R. 0.23 (providing for use of summary orders where "no jurisprudential purpose would be served by a written opinion"), available at http://www.ca2.uscourts.gov/Docs/Rules/LR.pdf.
130. United States v. Martinez-Morel, 118 F.3d 710, 713 (10th Cir. 1997) (affirming preclusion of defense that defendant believed his prior departure from country had been voluntary and not by deportation, despite alien's proffer of a form he had received from the INS advising him of his right to voluntary departure rather than deportation).
131. See United States v. Reyes-Medina, No. 94-1923, 1995 WL 247343, at *2 (1st Cir. Apr. 25, 1995) ("Although it is true that many people do not realize that Puerto Rico is a U.S. possession, the sincerity or reasonableness of Reyes' beliefs are irrelevant."). But see United States v. Salazar-Gonzalez, 458 F.3d 851, 856 (9th Cir. 2006) (noting that illegal reentry defendant must know he has reentered the United States); United States v. Carlos-Colmenares, 253 F.3d 276, 278 (7th Cir. 2001) ("Intent to reenter is an element-it is hardly likely that Congress would have made it a crime to be transported involuntarily to the United States, say by an airplane hijacker . . . ." (internal citations omitted)).
132. See Carlos-Colmenares, 253 F.3d at 277, 278 (collecting cases and concluding that "intent to reenter the country without the Attorney General's express consent is not an element of section 1326"); United States v. Hernandez-Cruz, No. 96-4338,1997 WL 137991, at *1 (4th Cir. Mar. 27,1997) (per curiam) (barring defendant from raising the defense that he believed that a government document sent to him gave him permission to reenter the country); United States v. Asibor, 109 F.3d 1023, 1035-36 (5th Cir. 1997) (noting that despite fact that INS had approved defendant's request for Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa, no good faith defense available); United States v. Soto, 106 F.3d 1040, 1041 (1st Cir. 1997) (noting that the fact that alien obtained visa to reenter not a defense); United States v. Trevino-Martinez, 86 F.3d 65, 68 (5th Cir. 1996) (noting that defendant was not entitled to jury instruction that American consulate's decision to issue him nonimmigrant visa satisfied requirement that he obtain express consent of Attorney General). Prior to Carlos-Colmenares, it had long been the rule in the Seventh Circuit that a defendant's reasonable though mistaken belief that he had the consent of the Attorney General to reenter the country was a defense to a prosecution under § 1326. See United States v. Anton, 683 F.2d ion (7th Cir. 1982); see also Larry Kupers, Aliens Charged with Illegal Re-Entry Are Denied Due Process and, Thereby, Equal Treatment Under the Law, 38 U.C. DAVIS L. REV. 861, 874-76 (2005) (contending that Anton was correctly decided and aliens should have right to assert defense of belief that entry was legal).
133. Martinez-Morel, 118 F.3d at 716 (quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 71 (1994).
134. Id. at 716 (internal quotation marks omitted).
135. See United States v. Morales-Palacios, 369 F.3d 442, 448 (5th Cir. 2004) ("[U]pon being deported, an alien has been given both oral and written notice that he or she cannot reenter without the express permission of the Attorney General."); United States v. Torres-Echevaria, 129 F.3d 692, 697-98 (2d Cir. 1997) (noting "the practice of the INS is to advise them that they face criminal liability for an unlawful return" and that "deportation itself is sufficient to impress upon the mind of the deportee that return is forbidden," so that "[t]he statute simply, and logically, makes the presumption of unlawful intent conclusive").
136. See United States v. Ramirez-Valencia, 202 F.3d 1106, 1109 (9th Cir. 2002) (precluding defense on basis of bad advice in INS form given to alien upon prior departure that suggested that the alien could reenter the country without criminal consequence after five years); see also United States v. Aquino-Chacon, 109 F.3d 936, 939 (4th Cir. 1997). The INS form also misadvised aliens that they faced a penalty of only two years' imprisonment for reentry, when in fact they faced a penalty of up to twenty years of imprisonment; nevertheless, the federal appeals courts have declined to authorize a downward departure on this ground. See, e.g., United States v. Miranda-Ramirez, 309 F.3d 1255, 1261 (10th Cir. 2002) (finding a downward departure improper where Congress did not contemplate this situation).
137. See, e.g., Morales-Palacios, 369 F.3d at 449 (affirming district court's grant of motion in limine "to exclude evidence of Morales's subjective belief that he had the consent of the Attorney General to reenter the United States"); see also United States v. Gonzalez-Chavez, 122 F.3d 15, 17-18 (8th Cir. 1997) (affirming district court's preclusion of defendant from testifying to his good faith belief that he could reenter the United States and that he was permitted to do so when he presented his green card at the border); United States v. Leon-Leon, 35 F.3d 1428, 1432 (9th Cir. 1994) (affirming trial court's preclusion of defendant's green card to show that he believed he had consent of Attorney General for readmission).
138. United States v. Mancebo-Santiago, 875 F. Supp. 1030,1032 (S.D.N.Y. 1995).
139. See id.
140. Id. at 1036-37.
141. See United States v. Mancebo-Santiago, No. 96-1128, 1996 WL 560754, at *1 (2nd Cir. Oct. 3, 1996).
142. See United States v. Champegnie, 925 F.2d 54, 55-56 (2d Cir. 1991) (per curiam); United States v. Espinoza-Leon, 873 F.2d 743, 746 (4th Cir. 1991) (finding that mistaken belief as to the legality of reentry is no defense because only general intent must be proven under § 1326); United States v. Miranda-Enriquez, 842 F.2d 1211, 1212-13 (10th Cir. 1988) (holding there is no defense of mistaken belief of legality of reentry under § 1326 because the crime is a general intent crime and a mistake instruction is appropriate only if criminal intent plays a part in the crime charged).
143. BUREAU OF JUSTICE STATISTICS, FEDERAL JUSTICE STATISTICS RESOURCE CENTER: OUTCOMES FOR DEFENDANTS IN CASES TERMINATED (FY20O5), http://fjsrc.urban.org/analysis/t_sec/title.cfm?stat=3&year= 2005&t_ch=tsec&str_title=+8&title=+8 (highlight title "08-Aliens and Nationality"; highlight sections "8 1236," "8 1236A," "8 1326B"; and click desired display option) (last visited Oct. 31, 2007).
144. Id.
145. Compare United States v. Rodriguez, 416 F.3d 123, 125 (2d Cir. 2005) ("[T]he offense of attempted illegal reentry under § 1326(3) does not require the government to allege or prove that a defendant had the specific intent to reenter the United States without the expressed permission of the Attorney General."), cert, denied, 545 U.S. 1140 (2006), United States v. Morales-Palacios, 369 F.3d 442, 449 (5th Cir. 2004), United States v. Peralt-Reyes, 131 F.3d 956 (11th Cir. 1997) (per curiam), and United States v. Reyes-Medina, 53 F.3d 327 (1st Cir. 1995) (per curiam), with United States v. Smith-Baltiher, 424 F.3d 913, 923-26 (9th Cir. 2005) (holding that a defendant charged with attempted illegal reentry may assert defense that he reasonably believed he was a United States citizen upon seeking to reenter
146. Morales-Palacios, 369 F.3d at 448.
147. Rodriguez, 416 F.3d at 128.
148. United States v. Figueroa, 165 F.3d III, 112 (2d Cir. 1998).
149. Id. at 113.
150. Id.
151. Id.
152. Id. at 112 (quoting 8 U.S.C. § 1327 (1994)).
153. Id. at 118 (citing 8 U.S.C. § 1324(1)(A)(iv) (1994)).
154. Id. at 118-19.
155. Id. at 118; see also United States v. Flores-Garcia, 198 F.3d 1119, 1122 (9th Cir. 2000).
156. See Figueroa, 165 F.3d at 118-19.
157. See id.
158. Figueroa, 165 F.3d at 117 (citing United States v. X-Citement Video, Inc., 513 U.S. 64, 71 (1994)).
159. See United States v. Cook, 76 F.3d 596, 601 (4th Cir. 1996) (defendant convicted for use of minor to engage in drug offense need not have known that he was using a minor "for the obvious reason that receiving illegal drugs is not otherwise innocent conduct"); United States v. LaPorta, 46 F.3d 152, 158-59 (2d Cir. 1994) (convicting defendant under 18 U.S.C. § 1361 for "willfully injur[ing] or commit[ting] any depredation against any property of the United States" and finding defendant need not have known property belonged to the United States because "arson is hardly 'otherwise innocent conduct'").
160. Stephen J. Morse, Reason, Results, and Criminal Responsibility, 2004 U. ILL. L. REV. 363, 400 (2004).
161. Id. at 395.
162. Id. at 385, 404. Morse cites the example of "two drag-racing agents who drive into facing traffic at an extraordinarily high speed" but who cause different harms: "In one case an approaching driver is killed; in the second, death is narrowly averted by the unforeseeably great skill of the approaching driver who avoids the crash by an exceptional maneuver. What justifiable difference in culpability could there be?" Id. at 379-80.
163. 18 U.S.C. §922(g)(1) (2000); BUREAU OF JUSTICE STATISTICS, FEDERAL JUSTICE STATISTICS RESOURCE CENTER, http://fjsrc.urban.org/analysis/t_sec/stat. cfm?stat=1 (last visited Oct. 31, 2007) (select radio button "Number of defendants in cases filed"; highlight year "2005"; select radio button "Select-by title and section within U.S.C."; click "Select"; highlight title "18-Crimes and Criminal Procedure"; highlight section "18 9226"; click desired display option) (offenses charged under Title 18 in 2005). Although there are a range of federal firearm criminal statutes, by far the most commonly charged is the felon-in-possession statute, 18 U.S.C. § 922(g)(i). Id. According to the Bureau of Justice Statistics, 5,513 defendants were charged in 2005 with felon-in-possession or other unlawful firearm possession under § 922(g); this was 15% of all defendants (38,427) charged in 2005 with offenses under the general federal criminal code (Title 18) and comprised more cases than charged with any other single provision in the general federal criminal code. Id. According to the U.S. Sentencing Commission, for fiscal year 2005, more than 8,600 defendants (about 12% of all federal criminal cases) were charged with various federal firearms offenses. See SENTENCING COMMISSION, supra note 23, at tbl.3, available at http://www.ussc.gov/ANNRPT/2005/table3.pdf. The mean incarceration term for a federal weapons offense in fiscal year 2005 was 71.8 months. See id. at tbl.i3 (statistics from Oct. i, 2004 to Jan. 11, 2005), available at http://www.ussc.gov/ANNRPT/2005/table13_pre.pdf.
164. 18 U.S.C. § 922(g)(1) (2000).
165. Id. § 924(a)(2) (2000).
166. See, e.g., O'MALLEV ET AL., supra note 112, at § 39.09; see also United States v. Allen, 383 F.3d 644, 646-47 (7th Cir. 2004); United States v. Colonna, 360 F.3d 1169, 1178 (10th Cir. 2004); United States v. Smith, 320 F.3d 647, 655 (6th Cir. 2003).
167. See, e.g., United States v. Jones, 471 F.3d 535, 539-40 (4th Cir. 2006) (noting "a large body of circuit precedent recognizing that a statutory mens rea requirement does not always apply to each factual element of a criminal offense" and that "the United States must prove the defendant's knowledge with respect to possession of the firearm but not with respect to other elements of the offense"); United States v. Enslin, 327 F.3d 788, 798 (9th Cir. 2003) (noting that the knowledge requirement "only applies to the possession element" and rejecting defendant's argument, in reliance on Staples and X-Citement Video, that defendant must be alleged and proved to have known of his prior felony); United States v. Langley, 62 F.3d 602, 604 (4th Cir. 1995) (en banc) ('"[T]he defendant's knowledge of the weapon's interstate nexus or of his felon status was irrelevant.'" (quoting United States v. Dancy, 861 F.2d 77, 81 (5th Cir. 1988))).
168. See, e.g., United States v. Yermian, 468 U.S. 63, 68-09 (1984) (holding that defendant need not have known of federal agency jurisdiction in order to be convicted for making a false statement within the jurisdiction of a federal agency and that "jurisdictional language need not contain the same culpability requirement as other elements of the offense"); United States v. Feola, 420 U.S. 671, 676 n.9 (1975) (holding that defendant charged with assault of undercover federal law enforcement officer need not know his victim was federal law enforcement officer and that "the existence of the fact that confers federal jurisdiction need not be one in the mind of the actor at the time he perpetrates the act made criminal by the federal statute").
169. See United States v. Jackson, 120 F.3d 1226, 1229 (11th Cir. 1997) (per curiam) (finding that defendant could not present defense that he believed his prior convictions were under terms of first-offender state statute for which record was expunged after service of term of probation); United States v. Capps, 77 F.3d 350, 352-53 (10th Cir. 1996) (finding that defendant could not present defense that he believed his civil rights had been restored following prior felony conviction).
170. See United States v. Etheridge, 932 F.2d 318, 320-21 (4th Cir. 1991).
171. See United States v. Powell, 513 F.2d 1249, 1250-51 (8th Cir. 1975).
172. See United States v. Bruscantini, 761 F.2d 640, 641-42 (11th Cir. 1985) (convicting defendant despite reliance on advice of state judge and state prosecutor that prior nolo contendere plea to a burglary charge did not constitute a prior conviction); United States v. Goodie, 524 F.2d 515, 517-18 (5th Cir. 1975) (finding probation officer's advice irrelevant to conviction but allowing it as a defense against defendant's related specific intent offense of making a false statement on a federal firearms form regarding his conviction history, for which defendant was thereby acquitted).
173. 26 U.S.C. § 5861(1) (2000). A silencer is defined by statute to be a "firearm." 26 U.S.C. § 5845(a)(7) (2000).
174. See United States v. Ruiz, 253 F.3d 634, 638-39 (11th Cir. 2001); see also United States v. Turnbough, Nos. 9602531, 96-2677, 1997 U.S. App. WL 264475, at *2 (7th Cir. May 14, 1997); cf. United States v. Smith, No. 96-10044, 1997 WL 222328, at *1 (9th Cir. Apr. 30, 1997) (machine gun without serial number).
175. Compare United States v. Holt, 464 F.3d F.3d 101, 107 (1st Cir. 2006) (rejecting "innocent possession" defense), cert, denied, 127 S. Ct. 2031 (2007), United States v. Gilbert, 430 F.3d 215, 220 (4th Cir. 2005), and United States v. Hendricks, 319 F.3d 993, 1007 (7th Cir. 2003), with United States v. Mason, 233 F.3d 619,623 (D.C. Cir. 2000) (allowing an "innocent possession" defense to a felon-in-possession charge where the facts show that "(1) the firearm was attained innocently and held with no illicit purpose and (2) possession of the firearm was transitory- i.e., in light of the circumstances presented, there is a good basis to find that the defendant took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible").
176. Michael O'Hear, Sentencing the Green Collar Offender: Punishment, Culpability, and Environmental Crime, 95 J. CRIM. L. & CRIMINOLOGY 133, 140 (2004) (listing most common federal environmental statutes that are basis for criminal enforcement).
177. 33 U.S.C. § 1319(c)(2) (2000). The Clean Water Act ("CWA") prescribes up to three years' imprisonment for any person who "knowingly violates ... any permit condition ... in a permit issued" under the Clean Water Act. Id.
178. 42 U.S.C. § 6928(d)(2) (2000). The federal hazardous waste law, known as the Resource Conservation and Recovery Act ("RCRA"), prescribes up to five years of imprisonment and a $50,000 fine for every day of violation for any person who "knowingly treats, stores, or disposes" of "hazardous waste" without a permit. Id. See generally Michael Vitiello, Does Culpability Matter?: Statutory Construction Under 42 U.S.C. §6928, 6 TUL. ENVTL. L. J. 187, 192-95 (1993) (describing the history and scope of RCRA statute).
179. See United States v. Technic Servs., Inc., 314 F.3d 1031, 1043 (9th Cir. 2002) (noting that the Clean Water Act "allows criminal penalties ... regardless of whether the polluter is cognizant of the requirements of or even the existence of the permit," and therefore "[defendants' belief that permits were in place is irrelevant to the determination of whether they knowingly engaged in conduct" that violated the Clean Water Act); United States v. Kelley Technical Coatings, Inc., 157 F.3d 432, 437-39 (6th Cir. 1998) (holding that defendant need not know that he lacked a permit to dispose hazardous waste); United States v. Laughlin, 10 F.3d 961, 966 (2d Cir. 1993) (same). But see United States v. Wilson, 133 F.3d 251, 264 (4th Cir. 1997) (holding that the government must show defendant's knowledge that he did not have a permit for water discharge).
180. 40 C.F.R. § 261.3 (2006); see also Am. Chemistry Council v. EPA, 337 F.3d 1060, 1062-63 (D.C. Cir. 2003) (describing RCRA statutory scheme).
181. Kathleen F. Brickey, Environmental Crime at the Crossroads: The Intersection of Environmental and Criminal Law Theory, 71 TUL. L. REV. 487, 527-28 (1996); see also Richard J. Lazarus, Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming Environmental Criminal Law, 83 GEO. L. J. 2407, 2434 (1995) (noting the complexity of environmental regulations and testimony of one EPA official to the effect that there were only "five people in the agency who understand what 'hazardous waste' is" and that "[w]hat's hazardous one year isn't [the next] - [and what] wasn't hazardous yesterday, is hazardous tomorrow, because we've changed the rules").
182. 40 C.F.R. § 261.21(a)(1) (2006). Highly detailed testing procedures are similarly required to show that a substance is some other form of characteristic waste, such as corrosive, reactive, or toxic. See id. § 261.22-24.
183. See, e.g., United States v. Kelly, 167 F.3d 1176,1181 (7th Cir. 1999).
184. See Singer & Husak, supra note 12, at 859 n.1.
185. 273 F.3d 139, 142 (2d Cir. 2001). I was one of the trial prosecutors in the case and defended the case for the government on appeal.
186. See 40 C.F.R. § 61.141 (2006) (defining "friable asbestos material" and "regulated asbestos-containing material").
187. See Weintraub, 273 F.3d at 144-45.
188. See id. at 151.
189. See MODEL PENAL CODE § 1.13(10) (1962). If the legislature has not given element-by-element guidance as to the required mental state, a statute that contains a general "knowing" requirement would require "knowledge" as to each material element; a statute that is textually silent as to mental state would require at least recklessness as to each material element. See Id. § 2.02(3)-(4).
190. 18 U.S.C. § 2113(b), (f) (2000). For the theft of more than $1,000, a defendant is subject to a felony penalty of up to ten years' imprisonment; for the theft of less than $1,000, a defendant is subject to a misdemeanor penalty of one year imprisonment. See id. § 2113(b).
191. Indeed, Sally's argument would be strengthened by the fact that the current state of Commerce Clause law does not require Congress even to include an express jurisdictional element. The courts routinely infer the existence of federal jurisdiction simply from the nature of the class of commercial activities regulated, rather than any case-specific jurisdictional link. See, e.g., United States v. Moghadam, 175 F.3d 1269,1275-76 (11th Cir. 1999); United States v. Bird, 124 F.3d 667, 676-77 (5th Cir. 1997).
192. Morissette v. United States, 342 U.S. 246, 25011.4 (1952) (quoting Roscoe Pound, Introduction to FRANCIS BOWES SAYRE, A SELECTON OF CASES ON CRIMINAL LAW (1927)).
193. United States v. Wilson, 159 F.3d 280, 293 (7th Cir. 1998) (Posner, C.J., dissenting).
194. See, e.g., Peter Arenella, Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability, 39 UCLA L. REV. 1511, 1529(1992) (noting that retributivist viewpoint runs contrary to "legal positivist" conceptions that "eschew[] any necessary connection between legal liability rules and 'private' moralities"); Donald A. Dripps, Fundamental Retribution Error: Criminal Justice and the Social Psychology of Blame, 56 VAND. L. R. 1383, 1424-26 (2003) (comparing types of retributivist and utilitarian theories in light of psychological evidence that blame is disproportionately attributed to the character of the accused rather than the circumstances she faced); Huigens, supra note 109, at 818-19 (2002) (discussing historical shift away from consequentialist theories of punishment); Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw. U. L. REV. 453, 456 (1997) (contrasting utilitarian and retributivist theories of punishment and contending that retributivist policy-"a criminal law that assigns punishment in ways that closely reflects the community's intuitions about appropriate condemnation and punishment"-ends up promoting utilitarian concerns for "effectiveness in controlling crime," because of its "greater power to gain compliance with society's rules of lawful conduct").
195. See, e.g., State v. Crenshaw, 659 P.2d 488, 493 (Wash. 1983) ("[I]n discussing the term 'moral' wrong, it is important to note that it is society's morals, and not the individual's morals, that are the standard for judging moral wrong under M'Naghten."); see also State v. Cole, 755 A.2d 202, 209-11 (Conn. 2000) (holding that defendant's knowledge of illegality not enough to establish knowledge of wrong if defendant believed society's morals would allow his conduct).
196. People v. Schmidt, 110 N.E. 945, 950 (N.Y. 1915) ("The anarchist is not at liberty to break the law because he reasons that all government is wrong. The devotee of a religious cult that enjoins polygamy or human sacrifice as a duty is not thereby relieved from responsibility before the law.").
197. See Crenshaw, 659 P.2d at 493 ("If wrong meant moral wrong judged by the individual's own conscience, this would seriously undermine the criminal law, for it would allow one who violated the law to be excused from criminal responsibility solely because, in his own conscience, his act was not morally wrong.").
198. Huigens, supra note 109.
199. Because the jury is assigned a decision-making role under either my approach or the apparent innocence rule, this Article does not explore the empirical evidence concerning the general accuracy of a criminal jury's findings. See, e.g., HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 55-59 (Little, Brown, & Co. 1966) (suggesting 75.4% agreement rate between juries and judges).
200. Duncan v. Louisiana, 391 U.S. 145, 156 (1968).
201. Ring v. Arizona, 536 U.S. 584, 615 (2002) (Breyer, J., concurring in the judgment) (quoting Spaziano v. Florida, 468 U.S. 447, 481, 486 (1984) (Stevens, J., concurring in part and dissenting in part)). Because of the multi-individual and deliberative-process nature of the jury, this argument applies with less force in the relatively rare cases where judges serve as the fact finder at trial. See Sean Doran et al., Rethinking Adversariness in Nonjury Criminal Trials, 23 AM. J. CRIM. L. 1, 9 (1995) (noting difficulty in obtaining federal data on number of non-jury trials and extrapolating from available data that only 14% of federal criminal trials are not before a jury).
202. Barkow, supra note 112, at 47-83; Jenia lontcheva Turner, Jury Sentencing as Democratic Process, 89 VA. L. REV. 311, 341-42 (2003); see also Andrew M. Levine, The Confounding Boundaries of 'Apprendi-toid': Statutory Minimums and the Federal Sentencing Guidelines, 29 AM. J. CRIM. L. 377, 451 (2002) (noting that "jury verdicts communicate important communal judgments" and the role of the jury as "conscience of the community").
203. See Pierre H. Bergeron, En Banc Practice in the Sixth Circuit: An Empirical Study, 68 TENN. L. REV. 771, 771 (2000) ("In 1998 and 1999, for example, en bane dispositions accounted for only one-third of one percent of the cases decided by the federal appellate courts."); Jeffrey O. Cooper & Douglas A. Berman, Passive Virtues and Casual Vices in the Federal Courts of Appeals, 66 BROOK. L. REV. 685, 721-22 (2001) (noting the "rarity of en bane review" in federal appeals courts); The Justices' Caseload, www.supremecourtus.gov/about/justicecaseload.pdf (last visited Oct. 31, 2007) (noting certiorari review for approximately one hundred cases of seven thousand presented each term).
204. Wiley, supra note 12, at 1072.
205. Id. at 1074.
206. Id. at 1075.
207. PAUL H. ROBINSON & JOHN M. DARLEY, JUSTICE, LIABILITY, AND BLAME: COMMUNITY VIEWS AND THE CRIMINAL LAW 1 (Westview Press 1995).
208. Green, supra note 22, at 1554.
209. U.S. Const, amend. VI.
210. Stanton D. Krauss, Thinking Clearly About Guilt, Juries, and Jeopardy, 70 IND. L. J. 921, 922 (1995).
211. Taylor v. Louisiana, 419 U.S. 522, 538 (1975).
212. See FED. R. CRIM. P. 24(b)(2) (peremptory challenges).
213. See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 698 (1975); In re Winship, 397 U.S. 358, 364 (1970).
214. United States v. Bailey, 444 U.S. 394, 408 (1980).
215. See generally Michaels, supra note 15; Hopkins, supra note 15.
216. See, e.g., United States v. Svoboda, 347 F.3d 471, 477 (2d Cir. 2003); United States v. Bieganowski, 313 F.3d 264, 276 (5th Cir. 2002).
217. See, e.g., 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), 2113(c) (knowing receipt of stolen bank property), 1956 (money laundering requiring knowledge of transactions as involving proceeds from some form of unlawful activity).
218. Bryan v. United States, 524 U.S. 184, 202 (1998) (Scalia, J., dissenting).
219. Regina v. Cunningham, [1954] 2 Q-B- 396, 398.
220. Id. at 398-99.
221. Id.
222. Id. at 401.
223. See Hopkins v. Medeioros, 724 N.E.2d 336, 348 n.19 (Mass. App. Ct. 2000) (quoting jury instruction); see also Stafford v. Borden, 625 N.E.2d 12, 15 (111. App. Ct. 1993) (finding that defendant's sale of third-party gasoline in type of container prohibited by law was not basis for recovery by a plaintiff who was a victim of third-party's arson because "[t]he requirement that gasoline be sold only in an approved container, however, bears no relationship to the prevention of arson").
224. See, e.g., United States v. Feola, 420 U.S. 671, 687 (1975).
225. Regina v. Smith, [1974] 1 Q.B. 354.
226. Id.; see also Gerald Leonard, Rape, Murder, and Formalism: What Happens if We Define Mistake of Law?, 72 U. COLO. L. REV. 507, 518 (2001) (noting that "a mistaken view of civil property law can exculpate if it leads the defendant to believe he has a right to the property" and that "such a mistake of property law is always a defense to larceny").
227. See, e.g., PAUL H. ROBINSON, CRIMINAL LAW DEFENSES 380 n.26 (1984); Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV. 591, 630-33 (1981); Leonard, supra note 226, at 519. The Model Penal Code excuses both mistakes of law and mistakes of fact if the mistake negates a material element of the offense. Model Penal Code, § 2.04(1)(a) (1962).
228. SANFORD H. KADISH & STEPHEN J. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 599 (7th ed. 2001).
229. Id.
230. Id.
231. "We made too many wrong místakes!" remarked Yogi Berra, the famously quotable baseball catcher, when asked why the New York Yankees lost the 1960 World Series. See Yogi Berra Official Website, http://yogiberra.com/yogi-isms.html (last visited Oct. 31, 2007).
232. Bryan v. United States, 524 U.S. 184, 193 (1998) (declining to require defendant's knowledge of actual law charged against him even where statute required that defendant act "willfully").
233. For law review articles making this point that the Court has resurrected a mistake-of-law defense, see Richard S. Murphy and Erin A. O'Hara, Mistake of Federal Criminal Law: A Study of Coalitions and Costly Information, 5 SUP. CT. ECON. REV. 217, 218 (1997), and Bruce R. Grace, Ignorance of the Law as an Excuse, 86 COLUM. L. REV. 1392, 1399-1400 (1986).
234. Kahan, Ignorance of the Law, supra note 28, at 127-28.
235. Id. at 128-29 (emphasis omitted).
236. Id. at 129 (emphasis omitted).
237. Id.
238. Id.
239. Id.
240. Ratzlaf v. United States, 510 U.S. 135, 137 (1994).
241. Id. at 149.
242. See OLIVER WENDELL HOLMES, THE COMMON LAW 48 (Little, Brown & Co. 1963).
243. Kahan, Lenity, supra note 28, at 415.
244. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 700 (1995); accord Andrew Leipold, Rethinking Jury Nullification, 82 VA. L. REV. 253, 253 (1996) ("Nullification occurs when the defendant's guilt is clear beyond a reasonable doubt, but the jury, based on its own sense of justice or fairness, decides to acquit."); see also Todd E. Pettys. Evidentiary Relevance, Morally Reasonable Verdicts, and Jury Nullification, 86 IOWA L. REV. 467, 498 (2001) (discussing variants of jury nullification).
245. See, e.g., O'MALLEY ET AL., supra note 112, at § 12.01 (2005); NINTH CIRCUIT MANUAL OF MODEL JURY INSTRUCTIONS: CRIMINAL 3-1 (2003).
246. See Brown, supra note 3, at 1239-49 (discussing case of Leroy Reed); Marder, supra note 112, at 923-25 (same).
247. Marder, supra note 112, at 890.
248. Id. at 890-91.
249. Id. at 891.
250. Id.
251. Id.
252. John T. Parry, The Virtue of Necessity: Reshaping Culpability and the Rule of Law, 36 HOUS. L. REV. 397, 460 (1999).
253. United States v. Wilson, 159 F.3d 280, 283 (7th Cir. 1998). Violation of the statute, 18 U.S.C. § 922(g)(8), may result in a sentence of up to ten years' imprisonment. 18 U.S.C. § 924(a)(2) (2000). The statute was enacted in 1994, and at the time of the Wilson case, "the number of prosecutions for violating it ha[d] been miniscule." Wilson, 159 F.3d at 294 (Posner, C.J., dissenting).
254. Id. at 283 (majority opinion).
255. Id. at 284.
256. Id.
257. Id. at n.1.
258. Id. at 294-95 (Posner, C.J., dissenting).
259. Id. at 284 (majority opinion); id. at 294 (Posner, C.J., dissenting).
260. Id. at 294.
261. Id.
262. Id. at 295.
263. Id. at 293.
264. Id. at 289 (majority opinion).
265. Id. at 288-89.
266. Id. at 296 (Posner, C.J., dissenting).
267. Id.
268. Id. at 295 (internal citation omitted).
269. Samuel Buell, supra note 25, at 1981-82.
270. GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 1 (Harvard Univ. Press 1982).
271. Id. at 165-66.
272. See, e.g., Green, supra note 22, at 1555 ("[S]ociety's views of morality change over time and ... what one generation views as morally wrongful or socially harmful frequently deviates from the views of an earlier or succeeding generation.").
273. See, e.g., Neal Feigenson, Emotions, Risk Perceptions and Blaming in 9/11 Cases, 68 BROOK. L. REV. 959, 960 (2003) (discussing likely effects of 9/11 terrorism, including juries' "increased tendency to interpret ambiguous behavior as blameworthy").
274. Cf. Leipold, supra note 244, at 314-15 (proposing that legislatures create statutory jury nullification defense in cases where the jury does not believe conduct occasioned the harm or risk intended by a statute).
275. See, e.g., United States v. Ables, 167 F.3d 1021, 1031 (6th Cir. 1999). As noted in Part I, for specific intent statutes and other general intent statutes where Congress requires "willful" conduct the prosecution would be required to show the absence of good faith.
276. See, e.g., United States v. Harris, 185 F.3d 999, 1007 (9th Cir. 1999); United States v. Doyle, 130 F.3d 523,540-41 (2d Cir. 1997).
277. Dixon v. United States, 126 S. Ct. 2437, 2441 (2006).
278. Id. at 2442.