Willfulness and Ignorance in Federal Criminal Law

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Volume 37 Issue 4 Article
1989
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Michael E. Tigar
The University of Texas at Austin
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Michael E. Tigar, Willfulness and Ignorance in Federal Criminal Law, 37 Clev. St. L. Rev. 525 (1989)
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol37/iss4/3
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"WILLFULNESS" AND "IGNORANCE" IN
FEDERAL CRIMINAL LAW
MICHAEL E. TIGAR*
I. THE FAILURE OF ACADEMIC DISTINCTIONS BETWEEN
GENERAL AND SPECIFIC INTENT ............................... 527
II. Morissette: JUSTICE JACKSON'S BASIC TEXT ON
INTENT IN FEDERAL CRIMINAL LAW .......................... 533
III. A COHERENT APPROACH TO DEFINING "WILLFULLY"....... 534
A. Intentional Violation of Known Legal Duty:
The Most Stringent Test ................................... 534
1. Incom e Tax Cases ....................................... 534
2. Civil Rights Cases ....................................... 536
3. Intent and the First Amendment ..................... 536
4. Hand Grenades and Other Obvious Devices ......... 537
B. How to Define the Intent Element of Federal Crimes ... 539
1. The Liparota Approach: Parsing the Statute ........ 539
2. The Gypsum Approach ................................. 541
IV. CONCLUDING OBSERVATIONS ................................... 546
My interest in this topic was piqued as I reread the oldest entrapment
case in literature, that of Oedipus Rex. The Oedipus cycle consists of three
plays, written at different parts of the poet's life. He probably wrote
Antigone first, then followed with King Oedipus more than a decade later,
then Oedipus at Colonus toward the end of his life.' In King Oedipus,
Sophocles shows us Oedipus's relationship with his mother, the killing
of his father, and his being cast out of civilized society. It is quite clear
that Oedipus did not know any of the facts that would have made his
conduct a violation of secular or god-made law. Yet he is punished.
In Oedipus at Colonus, we see the old king near the end of his life. He
meets Theseus, King of Athens, and rages about the injustice of punishing
people who do not know or appreciate the wrongfulness of their conduct.
Was I the sinner?
Repaying wrong for wrong-that was no sin,
Even were it wittingly done, as it was not.
I did not know the way I went. They knew;
They, who devised this trap for me, they knew!2
Why the change from one play to another? George Thomson, the em-
inent classical scholar, suggests an answer in his book Aeschylus and
Athens3 that I find persuasive: Greek philosophy, at the point somewhere
between the authorship of these two plays, began to explore the difference
between nature and norm, physis and nomos. Thomson ties the intro-
*Joseph D. Jamail Chair in Law, The University of Texas at Austin. J.D.,
Boalt Hall School of Law, University of California, Berkeley.
'SOPHOCLES, THE THEBAN PLAYS 12-13 (E. Watling trans. 1947).
2 Id. at 79.
3 G. THOMSON, AESCHYLUS & ATHENS (1941), discussed in M. TIGAR, LAW &
THE RISE OF CAPITALISM 278-79 (1977).
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CLEVELAND STATE LAW REVIEW [Vol. 37:4
duction of this distinction between norms we make up and the reality of
the world around us to the introduction of money as the abstraction of
commodities in the Greek economy.4
Whether or not one agrees with Thomson, the shift in emphasis between
the plays is striking. Oedipus arraigns the system of punishment based
upon whether it takes account of the supposed ability to choose between
right and wrong courses of conduct. While there may be debate over the
ability of people to choose the right, Oedipus's argument is that the system
of justice must treat actors "as if't hey could choose.5 A system that
punishes without providing such an opportunity simply gives over the
function of identifying targets of punishment to blind forces of fate or
chance, or worse yet, to malign vengeance-seekers.
The debate found in the pages of Sophocles has continued through the
centuries. Modern scholars and sages of the criminal law have sought to
clarify its terms in the Model Penal Code.6
While the Code does not answer all the interpretive questions one might
raise, its comforting symmetry makes the onlooker's life easier than the
patchwork of federal criminal offenses. In confronting the system of fed-
eral crimes, no word has sown more confusion than "willfully." While the
term appears in literally dozens of offenses in Titles 18 and 26 of the
United States Code7, its meaning may vary considerably. Moreover, will-
fulness may be added to a statutory offense definition by judicial decision8
or to the indictments' allegations by prosecutorial practiceY However, the
absence of a unitary judicial and legislative definition of willfulness is
4 G. THOMSON, supra note 3, at 351-71.
5S ee generally Edgar, Mens Rea, in 3 ENCYCLOPEDIA OF CRIME & JUSTICE 1028-
40 (S.K adish ed. 1983).
6 MODEL PENAL CODE §§ 2.01-2.13 (1985). However, the language of particular
offenses may bedevil courts in trying to identify which element should be modified
by a particular intent. See Alvarado v. State, 841 F.2d 394 (5th Cir. 1988), cert.
denied, 109 S. Ct. 125 (1988). See also infra notes 78-115 and accompanying
discussion.
7 18 U.S.C. §§ 656, 657, 1001 (1982); 26 U.S.C. §§ 6672, 7201, 7206 (1982); 26
U.S.C. § 7213 (1982 & Supp. IV 1986).
8 See, e.g., Screws v. United States, 325 U.S. 91 (1945), infra notes 54-59 and
accompanying text.
9Indictments often contain the word "willfully" even though that term is not
in the definition of the statutory offense. If one concludes that the term is un-
necessary, the solution is not to strike it out. Amending an indictment, even to
delete arguable surplusage, is fraught with peril. Federal Rule of Criminal Pro-
cedure 7(d) permits surplusage to be deleted only on motion of a defendant, and
the Advisory Committee Notes cite Ex parte Bain, 121 U.S. 1 (1887) for the
proposition that amending an indictment is forbidden without the accused's con-
sent. Amendment cases in the Fifth Circuit include United States v. Salinas, 601
F.2d 1279 (5th Cir. 1979).
One conclusion of this essay, however, is that pattern jury instructions should
not provide a single, separate definition of "willfully," but should separately define
the intent element of each offense. This view has been adopted in the draft of
revised pattern jury instructions for the Fifth Circuit, for which I served as
Reporter. See Federal Criminal Jury Instructions of the Fifth Circuit (Proposed
Official Draft 1990) (available in the University of Texas at Austin School of Law
Library).
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1989, "WILLFULNESS" AND "IGNORANCE"
not a reason for throwing over well-established rules aboflt criminal in-
tent. Precision and differentiation, and not any single categorical imper-
ative, are the goals. All the slogans deployed in an effort to diminish the
role of intent in federal criminal law turn out, on examination, to be
seriously misleading.'
I. THE FAILURE OF ACADEMIC DISTINCTIONS BETWEEN GENERAL
AND SPECIFIC INTENT
The old "hornbook" definition of intent distinguishes between the spe-
cific desire to accomplish an unlawful result (specific intent) and the
voluntary commission of the act constituting the crime (general intent).1
Beyond these standards lie the so-called "strict liability" offenses, such
10A draft of revised pattern jury instructions for the Fifth Circuit, Id., sum-
marizes the confusion:
The word "willfully" is frequently included in the indictment, even
when not required by statute or case law. This practice should be
discouraged. The 1978 Fifth Circuit Criminal Pattern Jury Instruc-
tions inserted "willfully" as an element of almost every crime and
then supplied this definition of that term:
"The word 'willfully,' as that term has been used from time to time
in these instructions, means that the act was committed voluntarily
and purposely, with the specific intent to do something the law forbids;
that is to say, with bad purpose either to disobey or disregard the
law."
Court decisions indicate, however, that this definition is not accu-
rate in every situation. As stated in United States v. Granda, 565 F.2d
922,924 (5th Cir. 1978), the term "willfully" has "defied any consistent
interpretation by the courts." In United States v. Bailey, 444 U.S. 394,
403 (1980), the Court stated that "[Flew areas of criminal law pose
more difficulty than the proper definition of the mens rea required for
any particular crime." For example, in prosecutions under the Internal
Revenue Code, "willfully" has generally been defined as "a voluntary,
intentional violation of a known legal duty." United States v. Burton,
737 F.2d 439, 441 (5th Cir. 1984). This definition is taken primarily
from United States v. Pomponio, 429 U.S. 10 (1976). The Supreme
Court has discussed the various meanings of the term "willfulness,"
as used in the criminal tax statutes in United States v. Bishop, 412
U.S. 346, 93 S. Ct. 2008 (1973).
The notion that "willfully" requires a "bad purpose" derives from
the opinion in United States v. Murdock, 290 U.S. 389, 54 S. Ct. 223
(1933). Based on Murdock, the Fifth Circuit held in Wardlaw v. United
States, 203 F.2d 884 (5th Cir. 1953), that "willfully" included an evil
motive or bad purpose. Nevertheless, in McBride v. United States,
225 F.2d 249 (5th Cir. 1955), cert. denied, 350 U.S. 934 (1956), the
Fifth Circuit distinguished Murdock and Wardlaw as being cases of
alleged tax violations and held that "willful" had a different meaning
in a prosecution for making false records under 18 U.S.C. § 1001.
McBride approved an instruction specifically stating that proof of an
evil intent was not required and that "willful means no more than
that the forbidden act is done deliberately and with knowledge." 225
F.2d at 253. This definition has subsequently been approved on several
occasions in § 1001 prosecutions. United States v. Markham, 537 F.2d
187, 194 (5th Cir. 1976), cert. denied, 429 U.S. 1041, 97 S. Ct. 739
(1977).
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In United States v. Kerley, 643 F.2d 299 (5th Cir. Unit B 1981), the
court held that in a prosecution under 18 U.S.C. § 242, the failure to
charge the jury that "willfully" means acting with bad purpose or evil
motive was reversible error. The court again distinguished Pomponio
as being limited to tax violations but concluded that the "bad purpose
or evil motive" element was required because of Screws v. United
States, 325 U.S. 91 (1945).
In United States v. Hunt, 794 F.2d 1095 (5th Cir. 1986), a prose-
cution for mail fraud under 18 U.S.C. § 1341, the court approved a
definition that "willfully" meant an act "committed voluntarily and
purposely, with the specific intent to disobey or disregard the law."
794 F.2d at 1100. Hunt specifically rejected a contention that revers-
ible error is avoided "only if the judge utters the magic words 'with
bad purpose."' Id.
The Seventh and Ninth Circuits have recommended that "willfully"
not be defined unless the word appears in the statute allegedly violated
by the defendant. Federal Criminal Jury Instructions of the Seventh
Circuit § 6.03 (West 1980); Manual of Model Jury Instructions for the
Ninth Circuit § 5.07 (West 1985). See DEVITT & BLACKMAR, FEDERAL
JURY PRACTICE AND INSTRUCTIONS § 14.06 (West 1988 Cum. Supp.).
The Committee declines to go so far, because there are cases where
the courts have engrafted an element of "willfulness" even when that
term does not appear in the statute. For example, in United States v.
Kent, 608 F.2d 542 (5th Cir. 1979), cert. denied, 446 U.S. 936 (1980),
the court indicated that although the mail fraud statute, 18 U.S.C. §
1341, does not mention intent, an "implicit element of mail fraud is
a specific intent to commit fraud." 608 F.2d at 545, n.3. In United
States v. Salinas-Garza, 803 F.2d 834 (5th Cir. 1986), the court con-
sidered the currency reporting statute, 31 U.S.C. § 5316(a)(1)(A). Al-
though the statute only uses the term "knowingly," the court held
that the statute also requires the act be done "willfully," that is, the
defendant must be shown to have intentionally violated a known legal
duty. 803 F.2d at 838. Although the general conspiracy statute, 18
U.S.C. §§ 371-373 (1982 & Supp. IV 1986), contains no express intent
requirement, the Fifth Circuit held that a conviction under that stat-
ute requires proof of "at least the degree of criminal intent necessary
for the substantive offense itself." Ingram v. United States, 360 U.S.
672, 678 (1959), quoted in United States v. Harrelson, 754 F.2d 1153,
1172 (5th Cir. 1985), reh'g denied, 766 F.2d 186 (5th Cir. 1985), cert.
denied, 474 U.S. 908 (1985).
The Supreme Court has cautioned that the required mental state
may even be different for different elements of the same crime, and
that the mental element encompasses more than just the two possi-
bilities of "specific" and "general" intent. Liparota v. United States,
471 U.S. 419, 423 n.5 (1985). The Committee has therefore abandoned
the indiscriminate use of the term "willfully" accompanied by an in-
flexible definition of that term. Instead, we have followed the lead of
the Federal Judicial Center and have attempted to clearly define what
state of mind is required, i.e., what the defendant must know and
intend to be guilty of the particular crime charged. See Federal Ju-
dicial Center, Pattern Criminal Jury Instructions (1988).
We stress, however, that the judge will generally wish to make clear
the meaning of offense definitions in the context of the case at hand
by giving a "theory of the case" instruction based upon the parties'
submissions.
See generally G. FLETCHER, RETHINKING CRIMINAL LAW §6 6.5-6.5.5 (1978);
W. LAFAVE & A. SCOTT, CRIMINAL LAW § 3.4-3.11 (2nd ed. 1986); Cohen, Actus
Reus, in 1 ENCYCLOPEDIA OF CRIME & JUSTICE 15 (S. Kadish ed. 1983); Edgar,
supra note 5, at 1028; Tigar, Crime Talk, Rights Talk, and Double-Talk: Thoughts
on Reading Encyclopedia of Crime and Justice, 65 TEx. L. REV. 101 (1986).
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1989] "WILLFULNESS" AND "IGNORANCE"
as those involving public health and safety; generally, these are petty
offenses or at most misdemeanors.12 The path to understanding is also
strewn with a variety of other concepts designed to deal with such prob-
lems as the unintended result, or the proper treatment of the defendant
who knew a given result was likely but did not affirmatively "desire" it,
or the defendant who desired a particular harmful result but whose acts
created only a negligible risk that it would occur.
These academic distinctions have, in my view, contributed far more
confusion than clarity to the task of judges and lawyers who are trying
to figure out what to tell juries about the elements of offenses.13 To take
a common example of confusion, consider the cases in which the defendant
claims that the government must prove not only that he intended a spe-
cific unlawful result, but that he also knew the result was unlawful:
intentional violation of a known legal duty.
The prosecutor would probably respond that "ignorance of the law is
no excuse," and would cite Lambert v. California.4' A judge would agree
with the prosecutor in many cases. For example, with respect to unlawful
transportation of aliens, the Fifth Circuit has held that the government
need not prove that the defendant knew or believed that the aliens were
unlawfully in the United States.15 The Ninth Circuit has followed the
6
Fifth Circuit, but there is some contrary authority.'
As to many other federal offenses, however, the defense position would
be upheld. For example, in the prosecution of a taxpayer under 26 U.S.C.
Indeed, the Supreme Court has suggested that serious constitutional ques-
12
tions would be raised by classifying strict liability offenses as felonies. In Mor-
issette v. United States, 342 U.S. 246 (1952), Justice Jackson states:
The purpose and obvious effect of doing away with the requirement
of a guilty intent is to ease the prosecution's path to conviction, to
strip the defendant of such benefit as he derived at common law from
innocence of evil purpose, and to circumscribe the freedom heretofore
allowed juries. Such a manifest impairment of the immunities of the
individual should not be extended to common-law crimes on judicial
initiative.
Id. at 263.
George Fletcher reminds us that European systems focus more upon the risk
13
created by the actor's conduct than upon her desire that an unlawful result obtain.
G. FLETCHER, supra note 10, at §§ 6.5.1, 6.5.2. See also MODEL PENAL CODE § 2.02
(Proposed Official Draft 1962), cited with approval in Liparota v. United States,
471 U.S. 419, 424 n.5 (1985).
1,43 55 U.S. 225 (1957).
"5U nited States v. Merkt, 764 F.2d 266 (5th Cir. 1985) (Rubin, J., concurring
in part, dissenting in part); United States v. Merkt, 794 F.2d 950 (5th Cir. 1986),
cert. denied, 480 U.S. 946 (1987). Judge Rubin's dissent on this issue in Merkt I
is well reasoned.
16 United States v. Aguilar, 883 F.2d 662 (1989), petition for cert. filed, No. 89-
6214 (Dec. 1, 1989). The U.S. Supreme Court agreed with the Ninth Circuit in
another significant and related alien case, INS v. Cardoza-Fonseca, 480 U.S. 421
(1987) (aliens' unknowing waiver of their rights to suspend deportation and appeal
rendered subsequent deportation proceedings unreliable and felony indictments
for returning to U.S. were dismissed); see also United States v. Mendoza-Lopez,
481 U.S. 828 (1987) (alien must be permitted to challenge legality of prior de-
portation order); Bland v. United States, 299 F.2d 105 (5th Cir. 1962), discussed
infra at notes 106-07 and accompanying text.
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CLEVELAND STATE LAW REVIEW [Vol. 37:4
§ 7201 for income tax evasion, or under 26 U.S.C. § 7206(1) for making
a false statement on a return, "willfulness" means the intentional vio-
lation of a known legal duty. 17 Therefore, a taxpayer on trial for evasion
is entitled to present evidence that she intended to comply with the law
as she understood it. If such evidence raises a reasonable doubt, the jury
should acquit.8
However, a taxpayer will not be heard to say that he believed the entire
system of imposing taxes to be unconstitutional, and that he therefore
lacked specific intent.9 For the sake of completeness, one must also note
the Fifth Circuit's en banc opinion in United States v. Garber2,° which
holds that if a taxpaying requirement is sufficiently confusing that a
reasonable onlooker would be unable to decipher it, the taxpayer may
present evidence of that confusion as bearing upon the issue of intent.
Moreover, it is one of the curiosities of criminal jurisprudence that
courts and lawyers continue to say that ignorance of the law will not
excuse, and to cite Lambert for that proposition when the result in that
case points in just the opposite direction. Lambert struck down a felony
registration statute because it did not require proof that the defendant
knew she was required to register, and there was no evidence making it
probable that she knew of her obligation.
Nor, of course, does Lambert stand alone. For example, the Fifth Circuit
has held that a defendant may not be convicted of failing to report im-
portation of currency in an amount greater than $5,000 without proof
that she knew of the reporting obligation and intended not to comply
with it.21
These observations, coupled with the discussion below, should make
one hesitate before telling a jury that "ignorance of the law is not an
17U nited States v. Pomponio, 429 U.S. 10 (1976); Spies v. United States, 317
U.S. 492 (1943). See also United States v. Cox, 348 F.2d 294 (6th Cir. 1965);
United States v. Phillips, 217 F.2d 435 (7th Cir. 1954).
18U nited States v. Burton, 737 F.2d 439 (5th Cir. 1984). On the same basis,
an "advice of counsel" defense may be sustained. See also United States v. Cox,
348 F.2d 294 (6th Cir. 1965); United States v. Phillips, 217 F.2d 435 (7th Cir.
1954).
19S ee United States v. Garcia, 762 F.2d 1222 (5th Cir. 1985), cert. denied, 474
U.S. 907 (1985).
20 607 F.2d 92 (5th Cir. 1979). Garber sold her blood, which was of a rare type,
to a blood bank and did not report the money she received. She was convicted of
evading income tax. The Fifth Circuit held that the question of whether a sale
of blood constitutes a taxable event (as opposed to an exchange of equivalents)
was sufficiently recondite that Garber should have been permitted to adduce
expert testimony on the confusion among tax experts. This testimony could not
possibly have related to her state of mind, because the expert she wanted to call
had no knowledge of her actual mental state. Rather, the court reasoned that
when taxability is problematic as a matter of law, legal ambiguity is relevant to
show that the defendant herself may not have been aware of an obligation to
report. The opinion is justifiable in part because the criminal sanction for tax
evasion rests at the apex of a pyramid of civil, administrative, and penal provisions
and ought therefore to be narrowly drawn.
21 United States v. Granda, 565 F.2d 922, 926 (5th Cir. 1978). However, it may
be appropriate to give an "ostrich" instruction when knowledge is an element of
the offense. United States v. de Luna, 815 F.2d 301 (5th Cir. 1987).
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19891 "WILLFULNESS" AND "'IGNORANCE"
excuse." Indeed, although the Devitt & Blackmar treatise includes a
standard instruction to this effect,22 the 1988 supplement lists at least as
many cases holding the instruction (or one like it) to have been improper
as those upholding it.23 A jury instruction that has only a 50-50 chance
of being right is not a particularly good bet.
Of course, the prosecution must prove specific intent to violate a known
legal duty as an element of every conspiracy case, even if the underlying
offense-object is a so-called "general intent" crime.24 Conspiracy and at-
tempt are, as the Supreme Court has said, paradigmatic specific intent
25
offenses.
It might even be that specific intent would mean different things with
respect to the same offense in different settings. For example, a mail
fraud scheme based upon false statements would require the government
to prove that the accused acted with the intent to defraud or cheat, and
with knowledge of the falsity of his statements or reckless disregard of
whether he spoke the truth.26
Suppose, however, that the scheme were the type at issue in Carpenter
v. United States,27 where the defendant Winans violated his fiduciary duty
to maintain the secrecy of proprietary information belonging to his em-
ployer. Winans, it will be recalled, was a reporter for the Wall Street
Journal. He used his column in the Journal to promote stocks in which
he had invested or about which he had tipped his cohorts. In such a case,
the scheme to defraud does not necessarily involve falsehood: The gov-
ernment must prove that the accused sought to obtain money or property
through the willful violation of a legal duty that he knew he owed to his
employer. While the Court's earlier decision in McNally v. United States28
has cut back on the number of mail fraud cases based upon this kind of
violation of duty, Carpenterm akes clear that such theories are viable if
the defendant plans to impose financial harm on the victim.29
22 1 E. DEVITT & C. BLACKMAR, FEDERAL JURY PRACTICE & INSTRUCTIONS §
14.10 (3d ed. 1977).
23S ee, in addition to cases discussed elsewhere in this essay, United States v.
Winston, 558 F.2d 105 (2d Cir. 1977). See generally E. DEVITT & C. BLACKMAR,
supra note 22, at 268-71 (Supp. 1988).
24 See United States v. Harrelson, 754 F.2d 1153, 1171-73 (5th Cir. 1985), cert.
denied, 474 U.S. 908 (1985).
United States v. Bailey, 444 U.S. 394, 405 (1980).
25
See, e.g., United States v. Hunt, 794 F.2d 1095 (5th Cir. 1986); United States
26
v. Foshee, 569 F.2d 401 (5th Cir. 1978), modified, 578 F.2d 629 (5th Cir. 1978),
appeal after remand, 606 F.2d 111 (5th Cir. 1978), cert. denied, 444 U.S. 1082
(1980).
274 84 U.S. 19 (1987).
28 483 U.S. 350 (1987).
29 It is entirely possible that mail frauds based upon violation of a regulatory
or statutory duty will continue to be prosecutable even in the wake of McNally
and Carpenter.I f this is so, then such cases as United States v. Uni Oil, Inc., 646
F.2d 946 (5th Cir. 1981), cert. denied sub nom. Crude Co. v. United States, 455
U.S. 908 (1982), are still good law. In Uni Oil, the scheme to defraud consisted
in part of a plan to violate the oil price control statutes and regulations. To survive
McNally, the indictment in such a case would have to allege more than a simple
plan to defraud the agency of its right to have.its regulations obeyed. Rather, the
end object would have to involve taking money or property. Cf.T igar, Mail Fraud,
Morals and U.S. Attorneys, 11 LITIGATION 22 (Fall 1984).
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CLEVELAND STATE LAW REVIEW [Vol. 37:4
As a final illustration of the confusion that would attend an attempt
to craft a unitary definition of willfulness, consider Keegan v. United
States.30 In Keegan, the defendants were activists in the German-Amer-
ican Fund and were charged under the Selective Service Laws with con-
spiracy to counsel draft evasion. Their convictions were reversed by the
Supreme Court. The plurality faulted the trial judge's instructions as
having withdrawn from the jury critical issues concerning the defendants'
intent. The district court told the jury that innocent motives and a desire
to test the law were not defenses.31
Following what it believed to be Keegan's teaching, the Tenth Circuit
reversed convictions of Japanese-Americans charged under the same stat-
ute in Okamoto v. United States.2 In Okamoto, the district judge refused
a defense request to instruct the jury that the defendants' belief-that
the obligation of Japanese-Americans in relocation camps to compelled
military service was open to serious question-could be considered as
bearing upon their intent to disobey a known legal duty. The court of
appeals held this refusal was error.
Keegan and Okamoto could be read to suggest that every defendant
who believes a legal duty to be unconstitutional may not have the specific
intent to violate that legal duty. A more sensible reading would simply
harmonize these cases with the cases holding that the defendant must
act with knowledge of his duty, and that his genuine uncertainty about
that duty may negate a finding of knowledge.
The Model Penal Code has attempted to clarify the confusion by iden-
tifying four types of mental elements: intention, knowledge, recklessness
and negligence.33 The Model Penal Code also provides a means to deter-
mine which mental state attaches to which nonmental element of a
crime 4
The Code has been the basis for penal law changes in most of the states,
but has not had much influence on federal law. Congress has not been
consistent in salting the criminal code with mens rea requirements, nor
has it established any test for determining what a given element means
in a particular statute. For the sake of present-day clarity, therefore, one
must backtrack a bit to the cases on which current federal intent law has
been built.
The result in Carpenterc ould be sustained on the basis that Winans was "steal-
ing" his employer's confidential information, rather than simply violating a fi-
duciary duty. Such an analysis is subject to criticism, see Tigar, The Right of
Property and the Law of Theft, 62 TEx. L. REV. 1443 (1984). Morissette principles,
discussed below, require a finding of specific intent in the sense of knowledge and
desire.
303 25 U.S. 478 (1945).
31325 U.S. at 493-94.
32 152 F.2d 905 (10th Cir. 1945).
- MODEL PENAL CODE § 2.02(2) (1985), discussed in W. LAFAVE & A. SCO'Ir,
supra note 11, at § 3.4(c).
MODEL PENAL CODE § 2.02(4) (1985), discussed in W. LAFAVE & A. Scorr,
supra note 11, at § 3.4(c).
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1989] "WILLFULNESS" AND "IGNORANCE"
II. Morissette: JUSTICE JACKSON'S BASIC TEXT ON INTENT IN
FEDERAL CRIMINAL LAW
Morissette went deer hunting on a disused government bombing range.
He didn't get a deer, but thought to pay for the trip by loading spent bomb
casings on his truck, crushing them and selling them as scrap. He realized
a profit of $84.00. He was convicted under 18 U.S.C. § 641 of converting
government property.35 The trial judge instructed the jury that if Mor-
issette knew he was on government land and intended to take the shell
casings, he was guilty.
In an opinion by Justice Jackson, the Supreme Court reversed. Jackson
began with a disclaimer:
Neither this Court nor, so far as we are aware, any other has
undertaken to delineate a precise line or set forth comprehen-
sive criteria for distinguishing between crimes that require a
mental element and those that do not. We attempt no closed
definition, for the law on the subject is neither settled nor
36
static.
The Court then held: First, the absence of an intent requirement in a
felony statute is not dispositive. Second, when a federal crime is derived
from the common law, one will presume that Congress intended to adopt
the common law intent requirement as well. This rule of construction
will be applied even to an offense such as "conversion," which has no
precise common law antecedent but reflects an evident congressional in-
tention to fill in gaps in the common law of theft. Third, even with respect
to "an offense new to general law, for whose definition the courts have
no guidance except the Act,"'37 the Court will not lightly presume that
Congress intended to omit an intent requirement, for to do so would
"change the weights and balances in the scales of justice.'3
Of course, none of this tells us precisely how to define the intent re-
quirement in any given case. The Court simply acknowledges that Con-
gress "has at times required a specific intent or purpose which will require
some specialized knowledge or design for some evil beyond the common
law intent to do injury."9 In Morissette's case, the jury was to be told
that the government must prove that the defendant took the property
intending to "wrongfully" deprive the government of it.4o If the jury
formed a reasonable doubt based on Morissette's contention that he
thought the casings were abandoned, it should acquit.
35" Whoever embezzles, steals, purloins, or knowingly converts to his use or
the use of another, or without authority, sells, conveys or disposes of any record,
voucher, money, or thing of value of the United States or of any department or
agency thereof. ... " shall be guilty of an offense. Morissette v. United States,
342 U.S. 246, 248 (1952) (quoting 18 U.S.C. § 641 (1982)).
313 42 U.S. at 260.
11I d. at 262.
81d. at 263.
Id. at 264-65, 265 n.25 (citing 18 U.S.C. § 242; Screws v. United States, 325
U.S. 91 (1945)).
41 Id. U.S. at 275-76.
Published by EngagedScholarship@CSU, 1989 9