In
Haynes v. United States, 390 U. S.
85, the Court held invalid under the Self-Incrimination
Clause of the Fifth Amendment provisions of the National Firearms
Act, which constituted parts of an interrelated statutory scheme
for taxing certain classes of firearms primarily used for unlawful
purposes, and made the potentially incriminating information
available to state and other officials. To eliminate the defects
revealed by
Haynes, Congress amended the Act so that only
a possessor who lawfully makes, manufactures, or imports firearms
can and must register them. The transferor must identify himself,
describe the firearm, and give the name and address of the
transferee, whose application must be supported by fingerprints and
a photograph and a law enforcement official's certificate
identifying them as those of the transferee and stating that the
weapon is intended for lawful uses. Only after the transferor's
receipt of the approved application form may the firearm transfer
be legally made. A transferee does not and cannot register, though
possession of an unregistered firearm is illegal. No information or
evidence furnished under the Act can be used as evidence against a
registrant or applicant
"in a criminal proceeding with respect to a violation of law
occurring prior to or concurrently with the filing of the
application or registration, or the compiling of the records
containing the information or evidence,"
and no information filed is, as a matter of administration,
disclosed to other federal, local, or state agencies. Appellees,
who had been indicted under the amended Act for possessing and
conspiring to possess unregistered hand grenades, filed motions to
dismiss, which the District Court granted on the ground that the
amended Act, like its predecessor, compels self-incrimination and
that the indictment contravenes due process requirements by failing
to allege
scienter. Appellees also contend that the
provisions relating to fingerprints and photographs will cause
future incrimination.
Held:
1. The revised statutory scheme of the amended Act, which
significantly alters the scheme presented in
Haynes, does
not involve any violation of the Self-Incrimination Clause of the
Fifth Amendment. Pp.
401 U. S.
605-607.
Page 401 U. S. 602
2. The amended Act fully protects a person against incrimination
for past or present violations, and creates no substantial hazards
of future incrimination. P.
401 U. S.
606.
3. The amended Act's prohibition against a person's "receiv[ing]
or possess[ing] a firearm which is not registered to him," requires
no specific intent, and the absence of such a requirement in this
essentially regulatory statute in the area of public safety does
not violate due process requirements either as respects the
substantive count or the conspiracy count. Pp.
401 U. S.
607-610.
Reversed.
DOUGLAS J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACK, HARLAN, BRENNAN (as to Part I), STEWART, WHITE,
MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, J., filed an opinion
concurring in the judgment,
post, p.
401 U. S.
610.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Following our decision in
Haynes v. United States,
390 U. S. 85,
Congress revised the National Firearms Act with the view of
eliminating the defects in it which were revealed in
Haynes. [
Footnote
1]
At the time of
Haynes "only weapons used principally by
persons engaged in unlawful activities would be subjected to
taxation."
Id. at
390 U. S. 87. Under the Act, as amended, all possessors
of firearms as defined in the Act [
Footnote 2]
Page 401 U. S. 603
are covered, except the Federal Government. 26 U.S.C. § 5841
(1964 ed., Supp. V).
At the time of
Haynes, any possessor of a weapon
included in the Act was compelled to disclose the fact of his
possession by registration at any time he had acquired possession,
a provision which we held meant that a possessor must furnish
potentially incriminating information which the Federal Government
made available to state, local, and other federal officials.
Id. at
390 U. S.
95-100. Under the present Act, [
Footnote 3] only possessors who lawfully
Page 401 U. S. 604
make, manufacture, or import firearms can and must register
them;
the transferee does not and cannot register. It is,
however, unlawful for any person "to receive or possess a firearm
which is not registered to him in the National Firearms
Registration and Transfer Record." [
Footnote 4]
At the time of
Haynes, as already noted, there was a
provision for sharing the registration and transfer information
with other law enforcement officials.
Id. at
390 U. S.
97-100. The revised statute explicitly states that no
information or evidence provided in compliance with the
registration or transfer provisions of the Act can be used,
directly or indirectly, as evidence against the registrant or
applicant
"in a criminal proceeding with respect to a violation of law
occurring prior to or concurrently with the filing of the
application or registration, or the compiling of the records
containing the information or evidence. [
Footnote 5] The scope of the privilege extends, of
course, to the hazards of prosecution under state law for the same
or similar offenses.
See Malloy v. Hogan, 378 U. S. 1;
Marchetti v. United States, 390 U. S.
39,
390 U. S. 54. And the
appellees, apparently fearful that the Act, as written, does not
undertake to bar the use of federal filings in state prosecutions,
urge that those risks are real in this case. It is said that
California statutes [
Footnote
6] punish the possession of grenades, and that federal
registration will incriminate appellees under that law."
The Solicitor General, however, represents to us that
no
information filed is, as a matter of practice, disclosed to
any law enforcement authority except as the fact of nonregistration
may be necessary to an investigation or prosecution under the
present Act.
The District Court nonetheless granted the motion to dismiss on
two grounds: (1) the amended Act, like the
Page 401 U. S. 605
version in
Haynes, violates the Self-Incrimination
Clause of the Fifth Amendment, and (2) the conspiracy "to possess
destructive devices" and the possession charged do not allege the
element of
scienter. The case is here on direct appeal. 18
U.S.C. § 3731.
And see United States v. Spector,
343 U. S. 169;
United States v. Nardello, 393 U.
S. 286.
I
We conclude that the amended Act does not violate the
Self-Incrimination Clause of the Fifth Amendment, which provides
that no person "shall be compelled in any criminal case to be a
witness against himself." As noted, a lawful transfer of a firearm
may be accomplished only if it is already registered. The
transferor -- not the transferee -- does the registering. The
transferor pays the transfer tax and receives a stamp [
Footnote 7] denoting payment which he
affixes to the application submitted to the Internal Revenue
Service. The transferor must identify himself, describe the firearm
to be transferred, and the name and address of the transferee. In
addition, the application must be supported by the photograph and
fingerprints of the transferee and by a certificate of a local or
federal law enforcement official that he is satisfied that the
photograph and fingerprints are those of the transferee and that
the weapon is intended for lawful uses. [
Footnote 8] Only after receipt of the approved
application form is it lawful for the transferor to hand the
firearm over to the transferee. At that time, he is to give the
approved application to the transferee. [
Footnote 9] As noted, the Solicitor General advises us
that the information in the hands of Internal Revenue Service, as a
matter of practice, is not available to state or other federal
authorities
Page 401 U. S. 606
and, as a matter of law, cannot be used as evidence in a
criminal proceeding with respect to a prior or concurrent violation
of law. [
Footnote 10]
The transferor -- not the transferee -- makes any incriminating
statements. True, the transferee, if he wants the firearm, must
cooperate to the extent of supplying fingerprints and photograph.
But the information he supplies makes him the lawful, not the
unlawful, possessor of the firearm. Indeed, the only transferees
who may lawfully receive a firearm are those who have not committed
crimes in the past. The argument, however, is that furnishing the
photograph and fingerprints will incriminate the transferee in the
future. But the claimant is not confronted by "substantial and
real,'" but merely "trifling or imaginary hazards of
incrimination" -- first by reason of the statutory barrier against
use in a prosecution for prior or concurrent offenses, and second
by reason of the unavailability of the registration data, as a
matter of administration, to local, state, and other federal
agencies. Marchetti v. United States, supra, at
390 U. S. 53-54.
Cf. Minor v. United States, 396 U. S.
87, 396 U. S. 94.
Since the state and other federal agencies never see the
information, he is left in the same position as if he had not given
it, but "had claimed his privilege in the absence of a . . . grant
of immunity." Murphy v. Waterfront Comm'n, 378 U. S.
52, 378 U. S. 79.
This, combined with the protection against use to prove prior or
concurrent offenses, satisfies the Fifth Amendment requirements
respecting self-incrimination. [Footnote 11]
Appellees' argument assumes the existence of a periphery of the
Self-Incrimination Clause which protects
Page 401 U. S. 607
a person against incrimination not only against past or present
transgressions but which supplies insulation for a career of crime
about to be launched. We cannot give the Self-Incrimination Clause
such an expansive interpretation.
Another argument goes to the question of entrapment. But that is
an issue for the trial, not for a motion to dismiss.
II
We also conclude that the District Court erred in dismissing the
indictment for absence of an allegation of
scienter.
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."
[
Footnote 12] By the lower
court decisions at the time that requirement was written into the
Act, the only knowledge required to be proved was knowledge that
the instrument possessed was a firearm.
See Sipes v. United
States, 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,
342 U. S. 251)
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
342 U. S. 254.
The statutory offense of embezzlement, borrowed from the common law
where
scienter was historically required, was in a
different category. [
Footnote
13]
Id. at
342 U. S.
260-261.
"[W]here Congress borrows terms of art in which are accumulated
the legal tradition and meaning
Page 401 U. S. 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
342 U. S.
263.
At the other extreme is
Lambert v. California,
355 U. S. 225, 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
355 U. S. 228.
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
355 U. S.
229-230.
Page 401 U. S. 609
In
United States v. Dotterweich, 320 U.
S. 277,
320 U. S. 284,
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 wrongdoing 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. [
Footnote 14]
They are highly dangerous offensive weapons, no less dangerous than
the narcotics involved in
United States v. Balint,
258 U. S. 250,
258 U. S. 254,
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,
Page 401 U. S. 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
258 U. S.
253-254.
Reversed.
[
Footnote 1]
See S.Rep. No. 1501, 90th Cong., 2d Sess., 26, 42, 48,
52; H.R.Conf.Rep. No.1956, 90th Cong., 2d Sess., 35.
[
Footnote 2]
26 U.S.C. § 5845(f) (1964 ed., Supp. V) defines "destructive
device" to include "grenades" which are involved in the present
case.
[
Footnote 3]
Title 26 U.S.C. § 5812(a) (1964 ed., Supp. V) provides:
"A firearm shall not be transferred unless (1) the transferor of
the firearm has filed with the Secretary or his delegate a written
application, in duplicate, for the transfer and registration of the
firearm to the transferee on the application form prescribed by the
Secretary or his delegate; (2) any tax payable on the transfer is
paid as evidenced by the proper stamp affixed to the original
application form; (3) the transferee is identified in the
application form in such manner as the Secretary or his delegate
may by regulations prescribe, except that, if such person is an
individual, the identification must include his fingerprints and
his photograph; (4) the transferor of the firearm is identified in
the application form in such manner as the Secretary or his
delegate may by regulations prescribe; (5) the firearm is
identified in the application form in such manner as the Secretary
or his delegate may by regulations prescribe; and (6) the
application form shows that the Secretary or his delegate has
approved the transfer and the registration of the firearm to the
transferee. Applications shall be denied if the transfer, receipt,
or possession of the firearm would place the transferee in
violation of law."
Title 26 U.S.C. § 5812(b) (1964 ed., Supp. V) provides:
"The transferee of a firearm shall not take possession of the
firearm unless the Secretary or his delegate has approved the
transfer and registration of the firearm to the transferee as
required by subsection (a) of this section."
Title 26 U.S.C. § 5841(b) (1964 ed., Supp. V) provides:
"Each manufacturer, importer, and maker shall register each
firearm he manufactures, imports, or makes. Each firearm
transferred shall be registered to the transferee by the
transferor."
[
Footnote 4]
26 U.S.C. § 5861(d) (1964 ed., Supp. V).
[
Footnote 5]
26 U.S.C.§ 5848 (1964 ed.,Supp. V);
and see 26 CFR §
179.202.
[
Footnote 6]
Penal Code § 12303 (1970).
[
Footnote 7]
26 U.S.C. § 5811 (1964 ed., Supp. V).
[
Footnote 8]
26 U.S.C. § 5812(a) (1964 ed., Supp. V); 26 CFR §§
179.98-179.99.
[
Footnote 9]
26 CFR § 179.100.
[
Footnote 10]
26 U.S.C. § 5848 (1964 ed., Supp. V); 26 CFR § 179202.
[
Footnote 11]
We do not reach the question of "use immunity," as opposed to
"transactional immunity,"
cf. Piccirillo v. New York,
400 U. S. 548, but
only hold that, under this statutory scheme, the hazards of
self-incrimination are not real.
[
Footnote 12]
26 U.S.C. § 5861(d) (1964 ed., Supp. V).
[
Footnote 13]
As respects the
Morissette case, J. Marshall, Intention
-- In Law and Society 138 (1968), says:
"The defendant wished to take government property from a
government bombing range, he had the capacity to take it, he had
the opportunity, he tried and succeeded in taking it (his wish was
fulfilled, his act accomplished). For recovery in a tort action, no
more would have to be shown to establish liability, but the court
held that, to make his action criminal, 'a felonious intent,'
mens rea, had to be established. This could not be
presumed from his actions, which were open, without concealment,
and in the belief -- according to his statement -- that the
property had been abandoned. In other words, for the happening to
be criminal, the wish had to be to accomplish something criminal.
So, in discussing intent, we may have wishes of two different
characters: one giving a basis for civil liability (the wish to
take property not one's own) and another which would support
criminal liability, as well as civil (taking property with criminal
intent)."
[
Footnote 14]
We need not decide whether a criminal conspiracy to do an act
"innocent in itself" and not known by the alleged conspirators to
be prohibited must be actuated by some corrupt motive other than
the intention to do the act which is prohibited and which is the
object of the conspiracy. An agreement to acquire hand grenades is
hardly an agreement innocent in itself. Therefore, what we have
said of the substantive offense satisfies on these special facts
the requirements for a conspiracy.
Cf. United States v.
Mack, 112 F.2d 290.
MR. JUSTICE BRENNAN, concurring in the judgment of reversal.
I agree that the amendments to the National Firearms Act, 26
U.S.C. § 1-5872 (1964 ed., Supp. V), do not violate the Fifth
Amendment's privilege against self-incrimination, and join Part I
of the opinion of the Court. However, I do not join
401 U.
S. although I reach the same result as the Court on the
intent the Government must prove to convict, I do so by another
route.
I join Part I on my understanding of the Act's new immunity
provision. 26 U.S.C. § 5848 (1964 ed., Supp. V). The amended
registration provisions of the National Firearms Act do not pose
any realistic possibility of self-incrimination of the transferee
under federal law. An effective registration of a covered firearm
will render the transferee's possession of that firearm legal under
federal law. It is only appellees' contention that registration or
application for registration will incriminate them under California
law that raises the Fifth Amendment issue in this case.
Specifically, appellees assert that California law outlaws
possession of hand grenades, and that registration under federal
law would therefore incriminate them under state law. Assuming that
appellees correctly interpret California law, I think that the
Act's immunity provision suffices to supplant the
Page 401 U. S. 611
constitutional protection. Section 5848 provides in pertinent
part:
"No information or evidence obtained from an application . . .
shall . . . be used, directly or indirectly, as evidence against
that person in a criminal proceeding with respect to a violation of
law occurring prior to or concurrently with the filing of the
application. . . ."
In my judgment, this provision would prevent a State from making
any use of a federal registration or application, or any fruits
thereof, in connection with a prosecution under the State'
possession law. [
Footnote 2/1] This
would be true even if the State charged a transferee with
possession of the firearm on a date after the date the application
was filed, because possession is a continuing violation. [
Footnote 2/2] Therefore, for purposes of
the State's possession law, a transferee's continued possession of
a registered firearm would constitute "a violation of law occurring
. . . concurrently with the filing of the application."
I agree with the Court that the Self-Incrimination Clause of the
Fifth Amendment does not require that immunity be given as to the
use of such information in connection with crimes that the
transferee might possibly commit in the future with the registered
firearm. The only disclosure required under the amended Act is that
the transferee has received a firearm and is in possession of it.
Thus, in connection with the present general registration scheme,
"[t]he relevant class of activities
permeated
Page 401 U. S.
612
with criminal statutes,'" Mackey v. United States,
post at 401 U. S. 710
(BRENNAN, J., concurring in judgment), is limited to the class of
activities relating to possession of firearms. Id. at
401 U. S.
707-711. Since I read the statute's immunity provision
to provide immunity coextensive with the privilege in that regard,
I find no Fifth Amendment bar to the enforcement of the federal
statute.
The Court's discussion of the intent the Government must prove
to convict appellees of violation of 26 U.S.C. § 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
Page 401 U. S. 613
to the third element to declare that the offense falls within
the "regulatory" category.
Following the analysis of the Model Penal Code, [
Footnote 2/3] 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,
341 U. S. 500
(1951) (Vinson, C.J., announcing judgment);
Smith v.
California, 361 U. S. 147,
361 U. S. 150
(1959); [
Footnote 2/4] 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. [
Footnote 2/5] To
determine the mental element required for conviction, each material
element of the offense must be examined, and the determination made
what
Page 401 U. S. 614
level of intent Congress intended the Government to prove,
taking into account constitutional considerations,
see Screws
v. United States, 325 U. S. 91
(1945), as well as the common law background, if any, of the crime
involved.
See Morissette v. United States, 342 U.
S. 246 (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
342 U. S. 250,
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
Page 401 U. S. 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. [
Footnote 2/6] 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
Page 401 U. S. 616
are material to the offense."
Model Penal Code § 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, antitank 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.
[
Footnote 2/1]
No question of transactional immunity is raised here, since the
case involves incrimination under the laws of a jurisdiction
different from the one compelling the incriminating information.
Piccirillo v. New York, 400 U. S. 548,
400 U. S. 552
(BRENNAN, J., dissenting).
[
Footnote 2/2]
The result would be the same if a transferee moved from a State
where possession was legal to a State where possession was illegal.
The time when the possession became illegal cannot affect the
continuing nature of the act of possession.
[
Footnote 2/3]
ALI Model Penal Code § 2.02, Comment 123-132 (Tent.Draft No. 4,
1955).
[
Footnote 2/4]
"Still, it is doubtless competent for the [government] to create
strict criminal liabilities by defining criminal offenses without
any element of
scienter -- though . . . there is precedent
in this Court that this power is not without limitations.
See
Lambert v. California, 355 U. S. 225."
Smith v. California, 361 U. S. 147,
361 U. S. 150
(1959). The situations in which strict liability may be imposed
were stated by Judge, now MR. JUSTICE, BLACKMUN:
"[W]here a federal criminal statute omits mention of intent and
where it seems to involve what is basically a matter of policy,
where the standard imposed is, under the circumstances, reasonable
and adherence thereto properly expected of a person, where the
penalty is relatively small, where conviction does not gravely
besmirch, where the statutory crime is not one taken over from the
common law, and where congressional purpose is supporting, the
statute can be construed as one not requiring criminal intent."
Holdridge v. United States, 282 F.2d 302, 310 (CA8
1960).
[
Footnote 2/5]
These different levels of intent are defined in the code. ALI
Model Penal Code § 2.02 (Prop. Official Draft 1962). This Court has
relied on the code's definitions.
Leary v. United States,
395 U. S. 6,
395 U. S. 46 n.
93 (1969);
Turner v. United States, 396 U.
S. 398,
396 U. S. 416
n. 29 (1970).
[
Footnote 2/6]
Proof of some crimes may include a requirement of proof of
actual knowledge that the act was prohibited by law, or proof of a
purpose to bring about the forbidden result.
See James v.
United States, 366 U. S. 213
(1961);
Boyce Motor Lines v. United States, 342 U.
S. 337 (1952).
United States v. Murdock,
290 U. S. 389
(1933).
See generally Note, Counseling Draft Resistance:
The Case for a Good Faith Belief Defense, 78 Yale L.J. 1008,
1022-1037 (1969).
Cf. Model Penal Code § 2.02(2)(a) (Prop.
Official Draft 1962) (definition of "purposely").