Tag Archives: mens rea

Sentence Reform – Wither Goest Thou? – Update for October 30, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


roadtrip171027We reported last Friday on our trip to Washington for the “Advancing Justice, An Agenda for Human Dignity & Public Safety,” a conference sponsored by the Charles Koch Institute.

Today’s installment is Part 2 of our coverage:


The Sentencing Reform and Corrections Act of 2017 (S.1917) is currently before a subcommittee of Senator Charles Grassley’s Judiciary Committee, but we’ve been there before. The 2015 version of the SRCA was approved by the Judiciary Committee, only to die on the Senate floor because leadership refused to bring it to a vote during a presidential election season.

Sen. Charles Grassley (R-Iowa), the man with his hand on the Judiciary Committee throttle.
Sen. Charles Grassley (R-Iowa), the man with his hand on the Judiciary Committee throttle.

What is lost in the story of the 2015-16 attempts to pass SRCA is that the bill that came out of the Committee was not the same bill that went in. Instead, a lot of the retroactivity written into the bill as drafted was taken out to please law-and-order conservatives like then-Sen. Jefferson Beauregard Sessions III (now Attorney General) and Sen. Tom Cotton (R-Arkansas).

Sen. Grassley, one of the SRCA sponsors, said at the Advancing Justice conference that the drafters of SRCA17 “kept the package balanced,” taking into account the views of the prior bill’s critics. He said that to those “wanting reasonable compromise, we will be willing partners.”

Sen. Grassley cited a number of pending criminal justice reform bills, including the Smarter Sentencing Act (S.1933), the Mens Rea Reform Act (S.1902) and the CORRECTIONS Act (S.1994), implying that one comprehensive piece of sentencing reform legislation may emerge from the Judiciary Committee that includes pieces of many or all of these bills.

Sen. Grassley’s favorable reference to the Smarter Sentencing Act is a lot different from what he thought two years ago, when he denounced “the arguments for the Smarter Sentencing Act [as] merely a weak attempt to defend the indefensible.” In fact, his complaint that mandatory minimum laws are “too severe” and give prosecutors too much discretion is a major change from 2015, when he complained in a Senate speech about the dangers of the “leniency industrial complex” and “a growing public misconception that mandatory sentences for drug offenders needed to be reduced.”

stars171030So are the stars aligned differently in this Congress? Marc Levin ot the Texas Public Policy Institute told a session on the future of sentencing reform that “part of the strategy is to have as comprehensive a [sentencing reform] package as possible, without making perfect the enemy of the good.” Both left- and right-wing politicians are working on sentencing reform, and Koch Industries general counsel Mark Holden thinks that Attorney General Sessions will not be an impediment to the bill’s passage, despite what Levin called Sessions’ “real difference of opinion” on sentencing reform.

One potential stumbling block may be the Mens Rea Reform Act (S.1902). That Act would add a default rule for juries, requiring them to find criminal intent for federal offenses that don’t explicitly have an intent standard. If enacted, the Act would specify a default state of mind of “willfully,” and would require that unless the statute specified otherwise, AUSAs would have to prove the state of mind for every element of the offense. For example, a felon-in-possession charge under 18 USC 922(g) (which does not specify a state of mind) would require proof that the defendant possessed a gun that had traveled in interstate commerce intending to break the law. Currently, the government only must show the defendant knew he or she possessed a gun, not that the gun had traveled interstate and not that he or she knew the law prohibited possession.

mensrea160124Conservatives and criminal-defense organizations argue the measure is a necessary part of the congressional effort to reform sentencing and incarceration. Some Senate Democrats, however, fear the measure is far too sweeping and could be a back-door attack on federal regulations that police corporate behavior.

Senator Sheldon Whitehouse (D – Rhode Island), a member of the Judiciary Committee, told the Atlantic magazine last week that he wouldn’t support a sentencing reform bill containing the change in mens rea proposed by the MRRA. “It would turn me into a warrior against it,” he said. Chuck Schumer (New York), the Democratic leader in the Senate, also was quoted as saying he would oppose such a bill.

Ohio State University law professor and sentencing expert Douglas Berman wrote pessimistically last Friday about the effect the MRRA could have on sentencing reform:

I have said before and will say again that this kind of opposition to a reform designed to safeguard a fundamental part of a fair and effective federal criminal justice system shows just how we got to a world with mass incarceration and mass supervision and mass collateral consequences.  Nobody seems willing or able to understand that making life easier for prosecutors anywhere serves to increase the size and reach and punitiveness of our criminal justice systems everywhere.  In turn, if you want a less extreme and severe criminal justice system anywhere, the best way to advance the cause is by seeking and advocating to limit government prosecutorial powers everywhere.

Sentencing Law & Policy, Is it time for new optimism or persistent pessimism on the latest prospects for statutory federal sentencing reform? (Oct. 28, 2017)

The Atlantic, Could a Controversial Bill Sink Criminal-Justice Reform in Congress? (Oct. 26, 2017)

– Thomas L. Root


What’s New Is Old in Criminal Justice Reform – Update for October 4, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Two bills looking to reshape the nation’s criminal justice system were introduced this week, and all of sudden, criminal justice advocates are partying like it’s 2015.

party171004Leading the pack, a pack of influential senators led by Chuck Grassley (R-Iowa) and Dick Durbin (D-Illinois) announced the introduction of S. 1917, the Sentence Reform and Corrections Act of 2017.  SRCA17 – a retread of the Sentence Reform and Corrections Act of 2015 – is aimed at easing sentences for some federal offenders, such as for drug crimes, while beefing up other tough-on-crime laws. The measure would get rid of the federal three-strike law mandatory life sentence for some repeat drug offenders, three-strike but would also allow some people with previous convictions for serious violent and serious drug felonies to face enhanced penalties.

“This bill strikes the right balance of improving public safety and ensuring fairness in the criminal justice system,” said Grassley, who is chair of the Senate Judiciary Committee. “It is the product of much thoughtful deliberation, and we will continue to welcome input from stakeholders as we move forward.”

obtaining-clemencySRCA17 reportedly reduces the enhanced penalties that apply to repeat drug offenders and eliminates the three-strike mandatory life provisions for some offenders; expands the existing safety valve to offenders with more extensive criminal histories, and creates a second safety valve that gives judges discretion to sentence certain low-level offenders below the 10-year mandatory minimum; expands the reach of the enhanced mandatory minimum for violent firearm offenders to those with prior federal or state firearm offenses but reduces that mandatory minimum to provide courts with greater flexibility in sentencing; requires the Dept of Justice to conduct risk assessments to classify all federal inmates and to use the results to assign inmates to appropriate recidivism reduction programs, including work and education programs, drug rehabilitation, job training, and faith-based programs, permitting prisoners who successfully complete these programs to get early release and to spend up to 25% of their remaining sentence in home confinement or a halfway house; and provides for a report and inventory of all federal criminal offenses.

Sen. Grassley has not revealed his scheduling plan for marking up SRCA17. Its 2015 predecessor passed the Judiciary Committee 15-5 during the last Congress, but never reached a floor vote due to Senate Majority Leader Mitch McConnell (R-Kentucky), who did not want the measure voted on during the contentious 2016 presidential campaign.

A bipartisan coalition of legislators supports SRCA17, including Senator Mike Lee (R-Utah), Lindsey Graham and Tim Scott (both R-South Carolina), Jeff Flake (R-Arizona), Roy Blunt (R-Missouri), Dianne Feinstein (D-California), Sheldon Whitehouse (D-Rhode Island), Patrick Leahy (D-Vermont) and Cory Booker (D-New Jersey).

The Attorney General, whom President Trump says is “an idiot,” will likely oppose SRCA17.

SRCA17 will enjoy support from White House senior advisor Jared Kushner, who is interested in reforming the federal criminal justice system and previously has met with senators about the issue. The bill will undoubtedly be opposed by Attorney General Jefferson Beauregard Sessions III, a man recently described by President Trump as an idiot, who helped kill SRCA15 when he was a senator.

Meanwhile, five Republican senators Ted Cruz (Texas), Orrin Hatch and Mike Lee (both of Utah), Rand Paul (Kentucky), David Perdue (Georgia) introduced S. 1902, the Mens Rea Reform Act, on Monday. The MRRA would prevent the government from convicting someone of a federal crime without proving they committed the crime “knowingly and willfully.”

This is the second time Republicans in Congress have introduced “mens rea” reform, presenting a similar bill in 2015 that never made it out of committee.

Daily Caller, October 3, 2017: Senate Republicans team with Democrats in another push for soft sentencing

Politico, October 4, 2017: Senators unveil bipartisan criminal justice reform package

The Daily Signal, October 3, 2017: Criminal justice reform is alive and well in Congress

– Thomas L. Root


Captain Obvious Loses One in the 8th Circuit – Update for July 13, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Ron White was a “person of interest” to Kansas City law enforcement, a term that makes one sound better than it intends. We think more of a Taylor Swift or a Tom Brady, or even Ivanka Trump, when we hear “person of interest.” But not the KCPD. Law enforcement thought Ron was interesting because they suspected he was involved in a series of violent crimes.

dracoB170713In pursuit of their interest, officers searched Ron’s parents’ home. They found a black duffel bag in the bedroom Ron had used as a kid and still slept in from time to time. Among the swag in the bag was a stolen Romarm Draco handgun and a Cobray Street Sweeper.

The Draco is not a weapon for carefree Saturday afternoons plinking at cans. The Street Sweeper even less so. Described by firearms expert Ian McCollum as a “pretty miserable shotgun,” the Sweeper is an American knockoff of a 1980s South African design, a 12-gauge shotgun with a drum magazine capable of holding a dozen rounds. Think “shotgun revolver.”

Streetsweeper170713The Street Sweeper may be poorly made and a beast to shoot, but it has great curb appeal. Having played a supporting role in Miami Vice, several of the Robocop movies, and several video games, it’s not surprising that the gun was not seen so much at skeet shooting events as it was at drug deals gone bad. Thus it was that in 1994, the Bureau of Alcohol, Tobacco, Firearms and Explosives classified the Sweeper as a “destructive device” under 26 USC 5845(f). A “destructive device” – in this case “any type of weapon… the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes” – may not lawfully be possessed unless registered. (The Street Sweeper, being a 12-gauge shotgun, has a bore diameter of .729 inches.) The Secretary (of the Treasury, in this case), who was not much of a dove hunter, decided the Sweeper has no sporting purpose, and put it on the DD list.

McCollum170713That caused a problem for Ron, whose Street Sweeper unsurprisingly was not registered. Ron was convicted of possession of a stolen gun (the ugly little Draco) and an unregistered destructive device.

A three-judge panel at the 8th Circuit reversed the stolen-gun count, but upheld the conviction on the destructive device and Ron’s 57-month sentence. Earlier this week, on rehearing, ten 8th Circuit judges sitting en banc agreed that the stolen-gun charge was properly reversed. In addition, the Court threw out the destructive device count.

The same year the Street Sweeper became a destructive device, the Supreme Court – concerned that there were so many “look-alike” but lawful guns in circulation – held in Staples v. United States that a district court must instruct the jury that knowledge of the characteristics bringing a firearm or destructive device under the coverage of the National Firearms Act is a necessary element of the offense of possession of an unregistered firearm. In other words, if a shooting enthusiast has an AR-15 – the legal, semi-automatic version of the fully automatic M-16 – but it has been modified to fire like an M-16, the government has to prove the owner knew that.

It’s simply mens rea, the Court said, the “rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence… Congress need not expressly announce a mens rea in a criminal statute in order for the Supreme Court to predicate conviction under that statute on proof of knowledge or intent.” That’s what Staples held, except that after Staples, the 8th Circuit in United States v. Barr slapped a big asterisk on Staples, holding that where “the characteristics of the weapon itself render it ‘quasi-suspect,’ Staples does not require proof that the defendant knew of the specific characteristics which make the weapon subject to the Act,” but instead the “government need only prove that the defendant possessed the ‘quasi-suspect’ weapon and observed its characteristics.”

Obvious170713It might be called the “Captain Obvious” exception. If the destructive device is obviously a destructive device, the government does not have to prove the defendant knew it was a destructive device.

The en banc Court concluded that the Circuit’s Barr decision was inconsistent with Staples and mens rea. It complained that “Barr placed gun owners in the precarious position of facing strict criminal liability for possessing a firearm merely because a panel of judges may later classify that firearm as part of an arbitrary subcategory of weapons.”

In this case, Barr let the earlier classify the Street Sweeper as “quasi-suspect” for “reasons completely unrelated to the reason Congress chose to regulate the gun.” The gun was regulated because it had a bore of more than one-half inch and was found by a bureaucrat to not be “particularly suitable for sporting purposes.” But the three-judge panel said the Street Sweeper was quasi-suspect because it “a short-barreled twelve-gauge shotgun with a twelve-round drum feed… with the appearance of a large machine gun” and it “does not have the appearance of a traditionally lawful weapon.”

bomb170713The en banc Court concluded that “Barr’s holding as to the mens rea required for a conviction under the National Firearms Act is wholly inconsistent with Staples and is therefore overruled. By imposing strict criminal liability on owners of “quasi-suspect” guns — an undefined category that invites arbitrary application — Barr contravenes the Supreme Court’s view that Congress did not intend to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons.”

United States v. White, Case No. 15-2027 (8th Cir., July 11, 2017) (en banc)

– Thomas L. Root


1st Circuit Holds Recklessness Not Enough for ACCA Crime of Violence – Update for July 6, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Jackass170707Remember back in 2000 when MTV decided to break Masterpiece Theatre’s hammerlock on classy television programming? The result was Jackass, an ill-conceived piece of televised mayhem in which the show’s participants performed all manner of risky and stupid stunts on themselves and each other. Their viewers  – being not just kids but dumb kids – often imitated what they saw on the show.

Much of what the ensemble cast did to each other – such as branding one participant on his bare kiester with a hot iron – easily blew past  negligence and gross negligence standards on the way to sheer recklessness. And that brings us to today’s case.

George Bennett was convicted of being a felon in possession of as gun under 18 USC 922(g), among other crimes. Because the sentencing court concluded that George had three prior “crimes of violence” within the meaning of the Armed Career Criminal Act, he was sentenced under 18 USC 924(e) to 25 years. Without the ACCA specification, the most he could have gotten for the 922(g) was 10 years.

The legal landscape began shifting with the Supreme Court’s decision in Johnson v. United States that a portion of the ACCA – the “residual clause,” which pretty much defined a violent crime as one in which something bad could have happened, intended or not – was unconstitutionally vague. After Johnson, George filed a motion under 28 USC 2255 for relief from the ACCA sentence, arguing that his priors, all of which were aggravated assault under Maine law, were not “crimes of violence” within the meaning of the ACCA.

An ACCA “crime of violence” is an offense that (1) was burglary, arson, extortion or use of explosives (called the “Enumerated Clause”); or (2) has as an element the use, attempted use, or threatened use of physical force against the person of another (called the “Force Clause”).

George argued in his 2255 motion that Maine’s aggravated assault statute went beyond the Force Clause, in that one could commit aggravated assault through reckless conduct but without intent. The district court agreed with George, but the government appealed.

Cast member gets branded.

On Wednesday, the 1st Circuit Court of Appeals upheld the district court, not necessarily agreeing with George that recklessness was not enough to come within the Force Clause, but not being sure that it did not. In a 54-page exposition of the state of the law on recklessness and the Force Clause, the Circuit concluded that “the text and purpose of ACCA leave us with a ‘grievous ambiguity,’ as to whether ACCA‘s definition of a “violent felony” encompasses aggravated assault in Maine, insofar as that offense may be committed with a mens rea of mere recklessness, as opposed to purpose or knowledge, we… must apply the rule of lenity… and, in consequence, we conclude that Bennett’s two prior Maine convictions for aggravated assault do not so qualify…”

Maine defines aggravated assault to include “intentionally, knowingly or recklessly causing” bodily injury to another. Maine defines the mens rea of recklessness as acting when a person “consciously disregards a risk.”

violence161122The problem, the Court said, is that “Congress chose in ACCA to denominate ‘the use of force against another’ as a single, undifferentiated element.” The question thus becomes whether “the relevant volitional act that an offense must have as an element for ACCA purposes is not just the ‘use . . . of physical force,’ but the ‘use . . . of physical force against the person of another.” The injury caused to another by the volitional action in a reckless assault, the Court said, is by definition neither the perpetrator’s object nor a result known to the perpetrator to be practically certain to occur. For that reason, a voluntary reckless act – the Court used the example of throwing a plate against a wall in anger, resulting the splinters flying off and injuring one’s spouse. – may endanger another without deliberately endangering another.

The Court could as easily have used the Jackass “branding iron” skit.

The Court traced all of the arguments for and against George’s position, but concluded that “the canon against surplusage does at least suggest that the follow-on ‘against’ phrase in ACCA must be conveying something that the phrase ‘use . . . of physical force’ does not… Nevertheless, we can hardly be sure.”

The Rule of Lenity holds that a court should interpret any ambiguity in a criminal statute in the defendant’s favor. The Circuit said, “We are considering here a sentencing enhancement of great consequence. We should have confidence, therefore, that we are doing Congress’s will in applying this enhancement here.”

The Bennett decision is long but consequential, treating in detail a substantial question on interpreting “use of physical force against the person of another.” The issue may well be the next battleground in ACCA and “crime of violence” litigation.

Bennett v. United States, Case No. 16-2039 (1st Cir., July 5, 2017)

– Thomas L. Root


1st Circuit Seeks to Limit Application of “Ostrich Instruction” – Update for February 28, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


A 1st Circuit insider-trading decision last Friday provided some head-shaking at the way the defendants passed the stock tip between themselves, and an interesting consideration of the “ostrich instruction.”

bob170228Bob Bray was a contractor and real estate developer (think “Bob the Builder”). He was also an avid golfer, and became drinking and dining buddies with John O’Neill, a bank mergers-and-acquisitions executive. Over the years, they tipped back a lot of cold ones and ate plenty of burgers. Bob became a family friend, and helped John’s son land a few summer jobs.

From time to time, Bob would ask John for stock tips, and John would suggest certain bank stocks, based on public information. No problem there. But one day in 2010, Bob told John he needed a big financial score so he could afford a large real estate project.

John replied that he knew of several good bank investments, but while he talked, he wrote the word “Wainwright” on a cocktail napkin and slid it across the table. John knew from work that Wainwright was a takeover target, and he had been tasked to do “due diligence” on the acquisition. He also knew that the information was confidential, and that he was duty-bound to keep it that way.

napkin170228Bob the Builder sold everything he had, and as quickly as he could, bought thousands of shares of Wainwright Bank, a local institution. Sure enough, a few weeks later, a big bank announced it was gobbling up little Wainwright, and Bob doubled his money.

Bob was a “go big or go home” kind of guy, which means that his purchase of all of that stock left a really big blip in the trading history. Pretty soon, private regulators started asking questions, then the SEC, and finally the U.S. Attorney.

Bob and John were convicted of insider trading. Last week, the 1st Circuit upheld the conviction.

Much of the appellate decision discusses issues which are interesting enough, but not what we’re writing about here. We want to focus on Bob’s complaint that the district court gave the jury a flawed “conscious avoidance” instruction.

The doctrine of “conscious avoidance” (also called “willful blindness”) is a judge-made doctrine that expands the definition of knowledge to a case where a defendant is found to have willfully closed his eyes to the high probability a fact exists. While the doctrine originated in the context of drug trafficking cases, it has since been expanded to a wide array of prosecutions and is increasingly used in the white-collar cases.

ostrich170228The jury instruction – often called the “ostrich instruction” because the defendant has figuratively buried his head in the sand, benefits the government. It’s an instruction that often is requested where the government’s evidence of actual knowledge is pretty slim. Defense attorneys complain (with some justification) that “the instruction invites the jury to convict based on evidence of mere negligence or recklessness.”

One of the issues in Bob’s case was whether he knew that John had a duty to keep the Wainwright information confidential. Bob argued on appeal that he should get a new trial because the district court wrongly instructed the jury on the mens rea element of his offense. The district court erroneously told the jury that it could convict Bob of securities fraud so long as it found that he “knew or . . . should have known” that O’Neill had breached a duty of confidentiality by giving him the Wainwright tip. Bray also complained that the district court’s instructions erred by equating the concept of “willful blindness” with negligence.

The 1st Circuit agreed that “the district court clearly erred in defining the ‘willful blindness’ standard.” Willful blindness has “an appropriately limited scope that surpasses recklessness and negligence,” the Circuit said, “and expressly contrasting willful blindness with ‘a negligent defendant… who should have known of a similar risk but, in fact, did not” was wrong. The Court held:

A willful blindness instruction is meant to inform jurors that they may impose criminal liability on people who, recognizing the likelihood of wrongdoing, nonetheless consciously refuse to take basic investigatory steps. The instruction in this case, however, mistakenly suggested that the jury could find “consciously and deliberately avoided learning” about the violation.

Unfortunately for Bob, his attorney did not object to the instruction at trial, so the review on appeal was under the FRCrimP 52(b) “plain error” standard. The fourth prong of “plain error” is whether the mistake “distort[ed] the fairness or integrity of lower court proceedings in some extreme way.” Here, the Court said, it did not, because the evidence was ample that Bob knew the moment the napkin was wordlessly slid across the table that he was getting inside information that John had no right to provide. In the law business, that’s called “actual knowledge.”

Bob scored over $300,000 on the sale of his Wainwright stock. And then, he lost big.

United State v. Bray, Case No. 16-1579 (1st Cir., Feb. 24, 2017)

– Thomas L. Root