Mimesis Law
19 February 2019

In This Post, Have I Committed A Federal Crime?

May 25, 2016 (Mimesis Law) — I herewith use the 4-H Club logo:

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Have I just committed a federal crime?  See 18 U.S.C. § 707 (second paragraph*; providing for a fine and imprisonment for using the logo without authorization; no knowledge or intent standard is required to be guilty).

My 4-H Club example is not exceptional. A 2010 study by the Heritage Foundation and the National Association of Criminal Defense Lawyers found that 25 percent of nonviolent offenses proposed in the House or Senate during the 109th Congress had no mens rea requirement at all. Brian W. Walsh and Tiffany Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, Heritage Foundation Special Report No. 77 at 12 (May 5, 2010). Nonviolent offenses are the type of offense for which criminal intent standards are perhaps most important, because such offenses often deal with conduct that is not inherently wrongful.

Now, Congress has a proposal to fix this nonsense. For example, The House Judiciary Committee’s Criminal Code Improvement Act of 2015 sets a default standard:

11. Default state of mind proof requirement in Federal criminal cases

If no state of mind is required by law for a Federal criminal offense—

(1) the state of mind the Government must prove is knowing; and

(2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.

Senate bill, S. 2298, Mens Rea Reform Act of 2015, introduced by Senator Hatch, sets a default standard that is similar to the House bill, but his legislation is more rigorous.

However, many Democrats and some Republicans oppose these measures, stating that the bill would make it harder for the government to prosecute corporate crimes. That is apparently DOJ’s position as well. Senator Grassley is wary of adding mens rea reform to the Senate’s crime reform legislation probably because he fears being labeled by members of the other team as a shill for corporations. This opposition represents Thomas Hobbes’ Leviathan at its worst.

Here is the important point:  If Congress or the administrative agencies want to create strict liability crimes, all they have to do is say so.  It is not too much to ask that Congress and the regulators who make criminal non-violent behavior speak clearly as to whether a particular state of mind is required.  If they fail to do so, a gap-filler law like the ones referred to above can save real people endless and unfair heartache.

Richard G. Kopf
Senior United States District Judge (Nebraska)

*The second paragraph of the statute reads as follows:

Whoever, whether an individual, partnership, corporation or association, other than the 4-H clubs and those duly authorized by them, the representatives of the United States Department of Agriculture, the land grant colleges, and persons authorized by the Secretary of Agriculture, uses, within the United States, such emblem or any sign, insignia, or symbol in colorable imitation thereof, or the words “4-H Club” or “4-H Clubs” or any combination of these or other words or characters in colorable imitation thereof

– Shall be fined under this title or imprisoned not more than six months, or both.

12 Comments on this post.

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  • Griff
    25 May 2016 at 9:25 am - Reply

    That’s all well and good, but if this post is a Federal crime now, it would still be a Federal crime under the new mens rea; you have actual knowledge of the statute criminalizing use of the logo. Looks to me like you’re courting impeachment here!

    Seriously, what is up with this statute? Some kind of fraud element would have to be imported into the word “uses” in order to save it, right? Or does the final sentence totally nullify the statute? “This section shall not make unlawful the use of any such emblem, sign, insignia or words which was lawful on the date of enactment of this title.” — if there was no law against using the logo before, then ANY use was lawful on the date of enactment and the statute is a nullity, right?

    • Richard G. Kopf
      26 May 2016 at 10:59 am - Reply

      Griff,

      There are two sections to the law. One section does require some type of fraudulent use.

      As for “what’s up with the law,” why the hell to I have to have all the answers.

      All the best.

      RGK

  • TMM
    25 May 2016 at 11:25 am - Reply

    I think that the issue on mens rea turns more on the second part of the statute (at least from the view of those who typically practice in state courts).

    In the typical crime (e.g., murder, rape, arson, burglary, theft), the prosecution only has to prove that the person knew what they were doing (e.g., killing the person, having sex without consent, setting a fire, entering a building, taking property that did not belong to them). For these offenses, the law assumes that people know the law.

    The second part of this proposed mens rea statute, however, does away with the presumption that people know the law. It says that for some, unspecified crimes, ignorance of the law nullifies the men rea element. The fear is that such a defense is most likely to be raised by businesses and corporations. The current statutes create an incentive for businesses to investigate the relevant law before acting. The new statute creates a disincentive to discover the law.

    There may be some circumstances in which the legislature sees a need to require proof that the defendant affirmatively know the illegality of their conduct. The general rule, however, is that such knowledge is conclusively presumed.

    Again, thinking of things from the state level, a lot of the rules governing hunting and fishing are contained in regulations drafted by the state agency with authority over such things. Most hunters and fishers generally know that these rules exist, but may not bother to read them. If they violate the rules,it is pretty easy to demonstrate that the hunter/fisher knew the act that they were taking (i.e. that they killed a deer or caught a fish or spread bait to hunt ducks). It is much harder to prove that they were aware of the particular regulations (e.g., requiring fish to be a certain size or forbidding certain unsporting techniques)that they violated. The current system places some burden on hunters to know the rules (with the result that most hunters know the main rules). The proposed reform, if applied at the state level, would remove that burden, potentially reducing the effectiveness of the rules.

    • Richard G. Kopf
      26 May 2016 at 11:03 am - Reply

      TMM,

      I’m an idiot. I responded to Jim when I intended to reply to you. See below.

      All the best.

      RGK

  • Jim
    25 May 2016 at 1:13 pm - Reply

    “Here is the important point: If Congress or the administrative agencies want to create strict liability crimes, all they have to do is say so. It is not too much to ask that Congress and the regulators who make criminal non-violent behavior speak clearly as to whether a particular state of mind is required. If they fail to do so, a gap-filler law like the ones referred to above can save real people endless and unfair heartache.”

    So why can’t Congress just go into these dumb laws like the 4-H example, and change the intent standard on a case-by-case basis? That way we would get rid of strict liability where it’s a bad public policy, without throwing it out where it’s a good public policy. And this would address the concerns about unintentionally making it harder to prosecute corporate crime.

    To me the answer is “Because most of these legislators don’t actually care about criminal justice reform, and are just using it as a convenient excuse to favor corporations.” But doubtless that’s just cynicism, and the gap-filler law will be promptly followed up by the kind of targeted Congressional action that the Judge suggests.

    • Richard G. Kopf
      26 May 2016 at 11:02 am - Reply

      Jim,

      Great point. Some laws should be “strict liability” laws. But, it is not too much to require the writers to be clear about such things. By the way, Congress has no firm idea of how many criminal laws they enacted or authorized via regulation.

      All the best.

      Rich Kopf

    • Richard G. Kopf
      26 May 2016 at 11:05 am - Reply

      Jim,

      In a perfect world, Congress would do exactly as you suggest. But, practically speaking Congress does not want to go to the effort you describe, hence the reason for the “gap-filler.”

      All the best.

      Rich Kopf

      PS Also see my response to TMM.

  • Anonymous
    25 May 2016 at 5:10 pm - Reply
    • Richard G. Kopf
      26 May 2016 at 10:57 am - Reply

      Anon.,

      Thanks very much. I wish I had known that before I wrote the post.

      All the best.

      Rich Kopf

  • Skink
    31 May 2016 at 6:33 pm - Reply

    Rich–

    I don’t do criminal law. When I read decisions, which is every day, I usually guess wrong as to the ultimate holding. Often, I confuse the issue with something that might make sense.

    I also don’t know criminal law. Who could? Federal, state, agencies. With all that, I probably violated several today. I might have done so yesterday, when I watered my brown grass in complete defiance of the South Florida Water Management District. Who knows who controls the watering of my brown grass?

    Despite my lack of knowledge and unlimited confusion, I do know one thing: given the right audience, I could convincingly argue that you didn’t know a goddamn thing before making this post.

    • Richard G. Kopf
      1 June 2016 at 7:47 am - Reply

      Skink,

      I have not known a goddam thing for a long time. Keep watering the grass!

      All the best.

      Rich Kopf

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