Donald FREED and Shirley Jean Sutherland

Supreme Court of the United States
401 U.S. 601 (1971)

 Mr. Justice DOUGLAS delivered the opinion of the Court.

[Appeal from an order of the United States District Court for the Central District of California, granting motion to dismiss indictment charging appellees with possession of unregistered hand grenades in violation of 26 U.S.C. § 5861(d), on the ground that the indictment did] not allege the element of scienter.  The case is here on direct appeal. . . .

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[p. 607]

 The Act requires no specific intent or knowledge that the hand grenades were unregistered.  It makes it unlawful for any person 'to receive or possess a firearm which is not registered to him.' [n. 12] By the lower court decisions at the time that requirement was witten into the Act the only knowledge required to be proved was knowledge that the instrument possessed was a firearm.  See Sipes v. United States, 8 Cir., 321 F.2d 174, 179, and cases cited.

 The presence of a 'vicious will' or mens rea (Morissette v. United States, 342 U.S. 246, 251, 72 S.Ct. 240, 243, 96 L.Ed. 288) was long a requirement of criminal responsibility.  But the list of exceptions grew, especially in the expanding regulatory area involving activities affecting public health, safety, and welfare. Id., at 254, 72 S.Ct. at 245.  The statutory offense of embezzlement, borrowed from the common law where scienter was historically required, was in a different category.  Id., at 260--261, 72 S.Ct., at 248--249.

'(W)here Congress borrows terms of art in which are accumulated the legal tradition and meaning [p. 608] of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.' Id., at 263, 72 S.Ct., at 250.

 At the other extreme is Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228, in which a municipal code made it a crime to remain in Los Angeles for more than five days without registering if a person had been convicted of a felony.  Being in Los Angeles is not per se blameworthy.  The mere failure to register, we held, was quite 'unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.' Id., at 228, 78 S.Ct., at 243.  The fact that the ordinance was a convenient law enforcement technique did not save it.

'Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process.  Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.' Id., at 229--230, 78 S.Ct., at 243--244.

 [p. 609] In United States v. Dotterweich, 320 U.S. 277, 284, 64 S.Ct. 134, 138, 88 L.Ed. 48, a case dealing with the imposition of a penalty on a corporate officer whose firm shipped adulterated and misbranded drugs in violation of the Food and Drug Act, we approved the penalty 'though consciousness of wrong-doing be totally wanting.'

 The present case is in the category neither of Lambert nor Morissette, but is closer to Dotterweich. This is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act. [n. 14] They are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint, 258 U.S. 250, 254, 42 S.Ct. 301, 303, 66 L.Ed. 604, where a defendant was convicted of sale of narcotics against his claim that he did not know the drugs were covered by a federal act.  We say with Chief Justice Taft in that case:

'It is very evident from a reading of it that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic.  Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, [p. 610] and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided.' Id., at 253--254, 42 S.Ct., at 302--303.


 MR. JUSTICE BRENNAN, concurring in the judgment of reversal.

 . . . . I do not join Part II of the opinion; although I reach the same result as the Court on the intent the Government must prove to convict, I do so by another route.

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 The Court's discussion of the intent the Government must prove to convict appellees of violation of 26 U.S.C. s 5861(d) (1964 ed. Supp. V) does not dispel the confusion surrounding a difficult, but vitally important, area of the law.  This case does not raise questions of 'consciousness of wrongdoing' or 'blameworthiness.'  If the ancient maxim that 'ignorance of the law is no excuse' has any residual validity, it indicates that the ordinary intent requirement--mens rea--of the criminal law does not require knowledge that an act is illegal, wrong, or blameworthy.  Nor is it possible to decide this case by a simple process of classifying the statute involved as a 'regulatory' or a 'public welfare' measure.  To convict appellees of possession of unregistered hand grenades, the Government must prove three material elements: (1) that appellees possessed certain items; (2) that the items possessed were hand grenades; and (3) that the hand grenades were not registered.  The Government and the Court agree that the prosecutor must prove knowing possession of the items and also knowledge that the items possessed were hand grenades.  Thus, while the Court does hold that no intent at all need be proved in regard to one element of the offense--the unregistered status of the grenades--knowledge must still be proved as to the other two elements. Consequently, the National Firearms Act does not create a crime of strict liability as to all its elements.  It is no help in deciding what level of intent must be proved as [p. 613] to the third element to declare that the offense falls within the 'regulatory' category.

 Following the analysis of the Model Penal Code, [n. 3] I think we must recognize, first, that '(t)he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.'  Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951) (Vinson, C.J., announcing judgment); Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959); [n. 4] second, that mens rea is not a unitary concept, but may vary as to each element of a crime; and third, that Anglo-American law has developed several identifiable and analytically distinct levels of intent, e.g., negligence, recklessness, knowledge, and purpose. [n. 5]  To determine the mental element required for conviction, each material element of the offense must be examined and the determination made what [p. 614] level of intent Congress intended the Government to prove, taking into account constitutional considerations, see Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), as well as the common-law background, if any, of the crime involved.  See  Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

 Although the legislative history of the amendments to the National Firearms Act is silent on the level of intent to be proved in connection with each element of the offense, we are not without some guideposts.  I begin with the proposition stated in Morissette v. United States, 342 U.S., at 250, 72 S.Ct., at 243, that the requirement of mens rea 'is no provincial or transient notion.  It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.'  In regard to the first two elements of the offense, (1) possession of items that (2) are hand grenades, the general rule in favor of some intent requirement finds confirmation in the case law under the provisions replaced by the present amendments.  The cases held that a conviction of an individual of illegal possession of unregistered firearms had to be supported by proof that his possession was 'willing and conscious' and that he knew the items possessed were firearms. E.g., Sipes v. United States, 321 F.2d 174, 179 (CA8 1963); United States v. Decker, 292 F.2d 89 (CA6 1961). Congress did not disapprove these cases, and we may therefore properly infer that Congress meant that the Government must prove knowledge with regard to the first two elements of the offense under the amended statute.

 The third element--the unregistered status of the grenades--presents more difficulty.  Proof of intent with regard to this element would require the Government to show that the appellees knew that the grenades were [p. 615] unregistered or negligently or recklessly failed to ascertain whether the weapons were registered. It is true that such a requirement would involve knowledge of law, but it does not involve 'consciousness of wrongdoing' in the sense of knowledge that one's actions were prohibited or illegal. [n. 6] Rather, the definition of the crime, as written by Congress, requires proof of circumstances that involve a legal element, namely whether the grenades were registered in accordance with federal law.  The knowledge involved is solely knowledge of the circumstances that the law has defined as material to the offense.  The Model Penal Code illustrates the distinction:

'It should be noted that the general principle that ignorance or mistake of law is no excuse is usually greatly overstated; it has no application when the circumstances made material by the definition of the offense include a legal element.  So, for example, it is immaterial in theft, when claim of right is adduced in defense, that the claim involves a legal judgment as to the right of property.  It is a defense because knowledge that the property belongs to someone else is a material element of the crime and such knowledge may involve matter of law as well as fact. * * * The law involved is not the law defining the offense; it is some other legal rule that characterizes the attendant circumstances that [p. 616] are material to the offense.'  Model Penal Code s 2.02, Comment 131 (Tent.  Draft No. 4, 1955).

 Therefore, as with the first two elements, the question is solely one of congressional intent.  And while the question is not an easy one, two factors persuade me that proof of mens rea as to the unregistered status of the grenades is not required.  First, as the Court notes, the case law under the provisions replaced by the current law dispensed with proof of intent in connection with this element.  Sipes v. United States, supra. Second, the firearms covered by the Act are major weapons such as machineguns and sawed-off shotguns; deceptive weapons such as flashlight guns and fountain pen guns; and major destructive devices such as bombs, grenades, mines, rockets, and large caliber weapons including mortars, anti-tank guns, and bazookas.  Without exception, the likelihood of governmental regulation of the distribution of such weapons is so great that anyone must be presumed to be aware of it.  In the context of a taxing and registration scheme, I therefore think it reasonable to conclude that Congress dispensed with the requirement of intent in regard to the unregistered status of the weapon, as necessary to effective administration of the statute.