LIPAROTA v. UNITED STATES
Legal provision: 7 U.S.C. 2024
ORAL ARGUMENT OF WILLIAM THOMAS HUYCK, ESQ., ON BEHALF OF THE PETITIONER
Chief Justice Warren E. Burger: We'll hear arguments this afternoon in Liparota against the United States.
Mr. Huyck, you may proceed whenever you're ready.
William Thomas Huyck: Mr. Chief Justice, and may it please the Court:
This case presents the Court with a question of interpretation of the language of a federal criminal statute.
The statute at issue, Section 2024(b) of Title VII is one of a common type of criminal statute appended to a statute of Congress establishing a program... in this case the food stamp program... and providing for criminal prosecution for fraud, and stating in relevant part that whoever knowingly acquires food stamps in any manner not authorized by this chapter is guilty of an offense.
And the issue that's presented as to the wording of this statute is, taking the phrase, again in relevant part, acquires coupons in any manner not authorized by the chapter, since Congress has chosen to use the word "knowingly", does the word "knowingly" apply to that entire phrase; or, as argued by the Government, does it apply to only a portion of the phrase, namely "acquires coupons"; that in other words, the offender knew he was acquiring coupons, but that he need not know it was in any manner in violation of the statute.
The facts of this case can be stated very briefly.
The petitioner and his brother ran a small sandwich shop in a poor neighborhood in Chicago which was not a member of the food stamp program.
There was quite a bit of evidence in the record about the enforcement of the food stamp regulations against food stores and other participants in the food stamp program which in essence establishes a tremendous amount of notice and warning prior to undercover criminal investigation.
None of this applied to the sandwich shop that petitioner and his brother ran.
An undercover agent with a secret tape recorder came into their sandwich shop, having gone to a food store that she was investigating, the food store having told them that they would not buy food stamps from her, and then she went to... but told her try the sandwich shop down the street, whereupon she sent into the sandwich shop, offered to sell food stamps at a discount to petitioner and his brother, and did so on three occasions, whereupon they were prosecuted.
The issue that is before this Court was raised in the jury instruction conference.
The trial counsel, myself, offered a specific intent jury instruction, the standard specific intent jury instruction, that he had to be purposefully intending to violate the law.
The Government objected, and the judge agreed, that this was a strict liability offense as to the element of knowledge of violating the law, and thereupon, the judge's instruction to the jury told the jury in essence there were three elements of the offense, and he divided the action element from the knowledge element.
He said that they had to find first that the defendant acquired and possessed food stamp coupons for cash in a manner not authorized by federal statute, the act; and then he said second, they have to find the defendant knowingly and willfully acquired the food stamps, but not that it was in a manner in violation of the regulations.
Unidentified Justice: In your view did that mean the jury need only find that the defendant knew that the food stamps were food stamps and not postcards, so to speak?
William Thomas Huyck: Yes, exactly.
And that... there was a colloquy with the court, and in fact the colloquy went so far as my asking the court can I argue to the jury... my client had testified in this case that he was not familiar with the food stamp regulations, and that he did not know that it violated any regulations for him to be buying these food stamps from this undercover agent.
And this was virtually the only defense that he had other than entrapment, which was also a defense.
So this took me by surprise that this was going to be interpreted not as a specific intent crime, and so there was a colloquy, and I asked the judge can I argue that to the jury, and the judge said no, you cannot argue ignorance of the law in this case to the jury.
Unidentified Justice: Do you think Congress was concerned about acts or attitudes?
William Thomas Huyck: I think that Congress in drafting the statute used the word "knowingly" for some purpose, and I think that they... this is a statute where the element of it being in violation of the statute is written right into the words of the statute.
And so I think that by using the phrase
"knowingly acquires food stamps in any manner not permitted by this chapter, that that is the plain meaning of Congress. "
Unidentified Justice: You don't think it means that Congress was concerned about whether he knew what he was doing?
William Thomas Huyck: No.
That's precisely my point.
They did not use the word "knowingly"--
Unidentified Justice: And don't you think this instruction that was given submitted that issue to the jury fairly?
William Thomas Huyck: --It submitted the issue as far as "knowingly" goes.
He carefully did this.
He submitted the issue whether defendant knowingly and willfully acquired the food stamps, period.
And in view of the colloquy that we had, he was clearly intending to leave out that he knew it was in a manner violated by the statute.
But I want to emphasize that this is not a case where I am arguing for any kind of an ignorance of the law defense to a crime of this kind, and I'm not even arguing for the specific intent instruction that I offered at trial.
That was done... this issue came up hastily at the end of the trial, and I think that fairly... it fairly raised the issue.
But the issue that I'm arguing here is exactly the one that was pointed out, if I can quote some language from Justice Brennan's opinion in United States v. Freed, a concurring opinion,
"The definition of the crime as written by Congress requires proof of circumstances that involve the legal element. "
In other words, this is not a general ignorance of the law defense.
This is a statute where there's a legal element that is an attendant circumstance, as you will, of the crime.
The definition of this offense has an element of an act, acquiring food stamps, and an element of an attendant circumstance, namely that that acquisition is not in any manner authorized by the statute.
And you have, I think, in the Model Penal Code a much more reasonable basis for interpreting criminal statutes of this kind than to quibble about the way that modifying language can be phrased in the English language.
And as I tried to make an example in my reply brief, the results should not just turn on the fortuitous way that a phrase is turned.
Judge Magruder in the St. Johnsbury Trucking case that I cited used the example of adulterated milk.
If you have a statute that says whoever knowingly sells adulterated milk, people would assume that that means that you have to know it was adulterated as well as knowing that it was milk.
But if you phrased it this way, "milk which had been adulterated", using a phrase instead of an adverb, an adjective, you should have the same result.
But the Government could make the same analysis of that language that it's making here.
It could say that you have "knowingly" modifying the verb "sell", and then "milk" is the object of "sell", and the phrase "which has been adulterated" is a separate phrase modifying the verb "sell" and that--
Unidentified Justice: Of course, there's some bit of difference, it seems to me, because if you're talking about a prohibition against the sale of milk, milk is ordinarily an article of commerce, and you simply wouldn't expect its ordinary milk sale to be prohibited.
But food stamps are not really an article of commerce.
It seems to me that perhaps a potential defendant may be on some notice when someone comes to him with food stamps whether or not they can be acquired.
This is not an ordinary commodity that someone comes into your store and offers to sell.
William Thomas Huyck: --Well, that's correct, Your Honor, and I certainly am not offering up milk.
I'm offering this an example of phraseology in the English language, and the bottom line being I think you ought to use, for instance, the Model Penal Code rule of construction that if a word such as "knowingly" appears in front of a statute, that you assume that it applies to every element of the offense stated in the statute, unless the contrary point intent plainly appears.
Unidentified Justice: Is there any way of purchasing food stamps?
William Thomas Huyck: --Is there any... no, there is no legal way of purchasing food stamps, that's correct.
Unidentified Justice: So he starts off... he knew he was doing something wrong when he purchased.
William Thomas Huyck: He told the jury that he didn't.
Unidentified Justice: Hmm?
William Thomas Huyck: But I admit he had a tough case.
But he told the jury that he didn't.
And, of course, we're talking about a statute here that applies to the entire chapter and all of the regulations issued there under.
We're not just talking about trafficking violations.
But I certainly agree with you, Your Honor, that this was a tough case for the defendant, because purchasing food stamps, there is no legal way of doing it, that's correct.
Unidentified Justice: Like purchasing drugs, like purchasing opium, isn't it?
William Thomas Huyck: --Well, no, I don't think that it necessarily is the same as that.
I think that--
Unidentified Justice: You mean it isn't as clearly.
William Thomas Huyck: --I think that when you're trying to draw a line as to which limited... and in the U.S. Gypsum case the Court said there are very limited circumstances where in the absence of a term defining the mental state, you will imply that Congress meant strict liability as to that element, very limited circumstances.
And one of them is this line of dangerous instrumentality cases... firearms, drugs and so on... where the Court's analysis has been that Congress probably intended strict liability as that element because of the very nature of the items.
And I do not think that food stamps are such an item.
Unidentified Justice: Under your analysis, the Government would have to prove beyond a reasonable doubt not only that the defendant knowingly acquired food stamps, but that he knew that his acquisition was not authorized by law, is that correct?
William Thomas Huyck: That's correct.
Unidentified Justice: How would the Government prove that second element?
William Thomas Huyck: Well, it was argued to the jury very effectively by the prosecutor in this case incidentally, enough the judge told her that she didn't have to, they said... she said these transactions took place in the back room.
Whenever she came around to sell food stamps, he said come in the back room and do it.
On one occasion he said to her my brother doesn't want me dealing in these food stamps.
They were bought at a discount.
They had warnings printed on the books.
My contention here is that the proof of the so-called criminal intent of the defendant in this case is no more difficult for the Government than in any other criminal case.
You're always making arguments to the jury that the circumstances of the offense show a consciousness on the part of the defendant that he knew he was doing wrong.
And this case was no different than the other cases.
Unidentified Justice: Well, do you think it's a fair argument to say that in most of the cases, the vast majority of the cases like this, the defendant would know, he'd actually know that he was doing something wrong?
William Thomas Huyck: --I think so.
I think so.
As long as--
Unidentified Justice: And the Government says well, so why should we put the prosecutor up to have him prove it in every single case.
And so you're saying you would concede that if it were clear that Congress intended this to be a nonspecific intent case that you wouldn't have any leg to stand on.
William Thomas Huyck: --Oh, certainly in interpreting a federal criminal statute if the meaning is plain, that ends it.
I don't think that this is a case where the meaning is plain, and I think that it's an ambiguous... at the very least it's an ambiguous statute to which you should apply the rule of lenity.
But I... but think of all the... I put one example in my brief.
This statute can be used not only to prosecute trafficking.
I agree that a trafficking prosecution is no difficulty for the Government.
The Government doesn't need strict liability because Congress intended that they use these undercover agents to go to grocery stores, and that's what they do for the most part, and the grocery stores are on notice.
There would be no difficulty at all proving actual knowledge on behalf of any grocery store because they have all of these warnings.
Unidentified Justice: Do you think it's accurate to call this a strict liability case?
William Thomas Huyck: Well, strict--
Unidentified Justice: That the Government... if the Government wins, do you think it's a strict liability case?
William Thomas Huyck: --No.
Strict liability as to this element of the offense.
I think that we have to be careful in--
Unidentified Justice: Yeah, I agree.
William Thomas Huyck: --using words like "strict liability"--
Unidentified Justice: I agree with you.
William Thomas Huyck: --to talk about that we're recognizing that there are different elements in an offense, and we're talking about this particular element.
But to go back to an earlier question, why... it seems to me clear that Congress did not use the word "knowingly" here just to say that you couldn't prosecute someone who did not actually know that what they had was a food stamp.
And that is not, I submit, a very common use of the word "knowingly" or "willfully" in criminal statutes.
And there's no reason to believe that that was the reason Congress put the word "knowingly" in here.
Now, the Government points to the following section, subsection (c), and also that this was almost the sole reliance of the Seventh Circuit in holding that they could divine Congress' intent, because subsection (c) was worded in a different way.
Subsection (c) is a two-actor offense.
The offense... the statute is directed against whoever presents coupons for redemption, namely a grocery stores who's redeeming coupons; and that that person who's knowing that he's presented coupons for redemption, knows that those coupons were received, transferred or used in a manner in violation of the chapter, which could be a different person.
So in other words, you're saying the person presenting the coupons knew that, if it was another person, that other person got the food stamps in an illegal manner.
That is, to me, the pure answer of why the word (b).
Unidentified Justice: Is it agreed that (c) does require proof of specific intent?
William Thomas Huyck: --It requires the... yes.
It requires the knowledge that's specifically stated there; in other words, knowledge that these stamps were received in--
Unidentified Justice: Well, you read that as meaning specific intent.
William Thomas Huyck: --As to that only... no, no, no, no.
That... well, yes, right; that specific intent, that element has to be proved, namely that the person presenting the stamps for redemption has to know that those stamps were received by somebody in violation of the statute.
But in subsection (c) they don't say whoever knowingly presents food stamps for redemption.
Congress in that section did not feel that they had to use the word "knowingly" to prevent the prosecution of a grocer who's handing in something that he doesn't know are food stamps.
Unidentified Justice: Well, is it entirely accurate to equate the term "knowingly" and speak of that as a specific intent?
I mean an intent is something... is the intent with which you do an act, and knowingly has always struck me as something a little bit different, or either less or more inclusive than the intention.
William Thomas Huyck: Well, here again, I think that the Model Penal Code offers guidance, because the definition of "knowingly" there as to an act is different than "knowingly" as to a circumstance.
We're talking about a circumstance here, and I think the definition is very straightforward, that he knows that such facts exist.
And here the circumstance is that they were acquired in a manner in violation of the statute.
He knows that that fact exists, that that was the manner in which they were acquired.
So I think that "knowingly" is a very accurate term.
I think that this Court's Bailey decision, United States v. Bailey, I think has been... had a very salutory effect in eliminating in many criminal trials this same specific intent instruction that I submitted in this case.
And pointing out that it would be much more useful to a jury for a judge to specifically address the mental element that is required for each specific element in the offense.
And a federal judge is at a disadvantage over a state judge, and I have cited an Illinois case, the Valley Steel case, as an illustration of how much easier this job is for a judge in a state that's adopted the Model Penal Code where you can look at the rules of construction and find, if it's not expressly put in there by the legislature, find what the mental element is as to each element of the offense.
Unidentified Justice: Assume the law was as you suggest, that the Government must establish that proof.
If on the whole record it is perfectly clear that that knowledge was possessed by the defendant, then would not the absence of the instruction you request be a harmless error?
William Thomas Huyck: Well, I think that question is particularly raised in this case because of what I pointed out in my reply brief, that in fact, his knowledge was argued to the jury, even though the judge said that I couldn't argue it, the prosecutor argued it even though she didn't have to, and then I argued it responding to the prosecutor.
And so I think that--
Unidentified Justice: Then the jury--
William Thomas Huyck: --on that point, it clearly presents this question: is it sufficient to say that the jury must have decided that in the absence of an instruction, and I say no.
I think that it's a very important principle to uphold, that the jury listens particularly to the instruction of the judge, and may discard or not pay attention to the arguments of the lawyers, and look to the judge for the instruction on the law.
And I think that sometimes it seems that it's harsh to reverse a criminal conviction and have a new trial because of instructions, but I think that here you certainly don't have a harmless misinstruction, if it is a misinstruction.
It's very crucial.
Unidentified Justice: --Well, if on the whole record it's perfectly clear that he did have the knowledge that you say should be shown, isn't that enough?
William Thomas Huyck: No, because the jury when they got back to deliberate, they were looking at this instruction, they found that they did not have to find that he knew that it was in a manner in violation of the statute.
And the colloquy makes clear that the judge was clearly trying to make that distinction in these instructions.
I want to say something about the Yermian case.
The Government has pinned its argument very closely to this Court's decision last term in Yermian, trying to say that this statute is similar to Yermian, and the case should be decided in the same manner.
The text is different from the text, and the circumstances are different, and the case is not governed by the Yermian decision.
Yermian involved Section 1001, and you had the making of a false statement, and then the phrase
"in any matter in a jurisdiction of a federal agency. "
In that statute the phrase "in any matter" came at the beginning of the sentence before the word "knowingly".
That's a difference.
The previous statute, which the Court also said in a footnote also has a clear meaning that it doesn't apply to that phrase, the phrase did follow the word "knowingly", but they were separated by a comma.
I think that... and even the statute where it came at the beginning, four members of this Court felt that it wasn't clear it was Congress' meaning that the word "knowingly" did not apply to that phrase "in any matter".
But I think more importantly, the background of this case makes it crucially different.
There's two steps involved here to the Government's argument, and they don't really follow through on the second step.
It's one thing to say did Congress mean the word "knowingly" to apply to this phrase "in any manner", but if you agree with them that it doesn't, then you have the next question: what mental state should be applied to that element of this offense?
And this Court has clearly stated on several occasions... in the Bailey case, in the United States Gypsum case, and in the Morissette case... that the mere omission of a word defining the mental intent does not mean that it's strict liability.
It does not answer the question just to say there isn't any word there defining the mental element.
And I think that it's--
Well, so the Yermian court then went on and relied on a couple of elements that are not present in this case, the first being that it was a jurisdictional element.
And the Court clearly stated that jurisdictional language need not contain the same culpability requirement as other elements of the offense, quoting this Court's opinion in Feola.
And the fact that that was a jurisdictional element in Yermian clearly was a point of distinction for this Court in trying to discern the meaning of Congress in the statute.
Secondly, Yermian had a particular... the statute had a particular legislative history which was debated at length in both the majority and dissenting opinions, which we do not have here... a dissenting opinion where the statute originally made it clear that it was only a defendant that knew he was defrauding the United States could be convicted, and then during... because of the vicissitudes of that statute, that language had been taken out, the issue being how much of the language had been taken out.
So that the analysis... in other words, my central point is the analysis doesn't stop once you say that Congress didn't mean "knowingly" to apply to this phrase "in any manner".
The analysis does not stop there.
Then you have to look to other principles and... principles of construction, the background of the statute, and so forth.
Unidentified Justice: Again, Mr. Huyck, do you... does one who presents coupons, a violation of (c), is he somebody who has acquired or possessed coupons in violation also of (b)?
William Thomas Huyck: --It could be the same person, and it could be different persons.
Unidentified Justice: Well, and if (c) requires a specific intent and (b) does not, then why would the Government ever prosecute under (c)?
Why wouldn't it always prosecute under (b)?
William Thomas Huyck: Well, I think that that's true, that you could... if there were a grocer presenting coupons, he would be... he would by definition violate both sections certainly.
He's acquired them.
Unidentified Justice: Well, then the Government... if that's so, the Government could prosecute all these cases under (b) because it doesn't require proof of specific intent.
Then they'd never have to prove specific intent at all, would they?
They'd never prosecute under (c).
William Thomas Huyck: I think that would be a possibility.
I imagine that--
Unidentified Justice: Only a possibility?
William Thomas Huyck: --You might imagine some situations, but I certainly cannot offhand imagine a situation where a grocer presenting coupons under (c) who wouldn't be guilty of violating (b) because he acquired the coupons.
Unidentified Justice: Could your client have been prosecuted for... under the second provision?
William Thomas Huyck: The subsection (c)?
Unidentified Justice: Yes.
William Thomas Huyck: No.
There's... actually, there's nothing in the record about what my client did with these food stamps.
Unidentified Justice: There's no charge that he presented.
He was charged with acquiring.
William Thomas Huyck: Acquiring, that's it.
No, there's no--
Unidentified Justice: Your complaint is lack of your instruction?
Is that your only complaint?
William Thomas Huyck: --Yes, although I would... if it was sent back for a new trial, I would certainly be content for an instruction specifically addressed to this element; that the jury be instructed that the defendant had to know that it was--
Unidentified Justice: You didn't ask for that, did you?
William Thomas Huyck: --In other words, I don't think I would offer my specific intent instruction on a retrial.
On a retrial, having more time to consider it, I would have a more precise instruction.
Unidentified Justice: You'd want more.
William Thomas Huyck: Yes.
Unidentified Justice: I thought--
William Thomas Huyck: Thank you.
Chief Justice Warren E. Burger: Mr. Rothfeld.
ORAL ARGUMENT OF CHARLES A. ROTHFELD, ESQ., ON BEHALF OF THE RESPONDENT
Charles A. Rothfeld: Mr. Chief Justice, and may it please the Court:
As one of Justice White's questions suggested, the dispute in this case is not about whether Section 2024(b) contains a scienter element of some sort.
Neither of the proposed readings of the statute would impose strict or absolute liability.
Under either reading the prosecution will have to prove that the defendant knew that he was handling food stamps and was aware of the nature of his activities.
Neither reading of the statute would permit a defendant to be convicted for accidental or inadvertent conduct.
And this is a significant limitation on the reach of Section 2024(b), because it means that only defendants who were aware that they were engaging in certain types of foodstamp transactions, which is the type of activity that almost everyone realizes is subject to some sort of federal regulation, only a defendant of that sort would be subject to conviction.
So the dispute here is a narrower one: whether in addition to these other limitations in the statute, Congress wanted to take the further very unusual step of excusing a defendant whenever the Government is unable to establish its familiarity with the law.
Unidentified Justice: Mr. Rothfeld, in light of the comment you just made, under (b), someone who deals in food stamps knowing that they're food stamps, okay, can be convicted, can't he?
He doesn't really have to know much more about it.
Charles A. Rothfeld: That's correct, Your Honor.
He would have to be aware that he was aware of the nature of his action and what he was doing, that he was using or acquiring it, and that they were food stamps.
Unidentified Justice: Now, you say he would have to be aware of the nature of his action.
Really all he has to be aware of is that he was acquiring... the things he was acquiring were food stamps.
Charles A. Rothfeld: That's correct, Justice Rehnquist.
Unidentified Justice: Any more awareness required?
Charles A. Rothfeld: Simply that he was conscious of his activity with that, and so that any accidental conduct would not fall within the scope of the statute.
But basically I think what you've described is correct.
Unidentified Justice: Well, if someone sent it to him in the mail and he opened the mail and found the food stamp, he probably wouldn't be guilty of anything, would he?
Charles A. Rothfeld: I think in the situation that you describe the language of the verbs in the statute impose some type of limitation as well.
It's not clear that person would have acquired a stamp within the meaning of Section 2024(b).
Unidentified Justice: Why not?
I don't understand that.
If you get a letter, and you open it, and you take the contents out, you've acquired the contents, haven't you?
Why wouldn't that violate the statute?
Charles A. Rothfeld: Well, it's conceivable that it would, Your Honor.
Unidentified Justice: I mean you say that's not an acquisition?
Charles A. Rothfeld: Well, there is little interpretation of the verbs in the statute.
I think someone who obtains a stamp as you describe it and keeps it, has acquired the stamp.
It is in his possession, and he has acquired it.
I think someone who picks a stamp up on the street or finds it in his pocket and throws it away or gives it to the Department of Agriculture perhaps does not acquire the stamp.
Unidentified Justice: If he throws it away, he violates the regulation, doesn't he?
Charles A. Rothfeld: Excuse me, Your Honor.
Unidentified Justice: If he throws it away, doesn't that violate a regulation?
Charles A. Rothfeld: If he--
Unidentified Justice: Disposes of them in any way.
If he tears them up, it violates the regulation, doesn't it?
Alters them in any way?
Charles A. Rothfeld: --That would be true, Your Honor.
Unidentified Justice: If he got an envelope with stamps in them and tore them up and threw them in the wastebasket, under your view he'd commit the crime, I think.
Charles A. Rothfeld: That's true, Your Honor.
But I should add that that might also very well be true under the petitioner's proposed reading of the statute, so long as--
Unidentified Justice: Yes, but he wouldn't commit a crime if he didn't... the envelope comes in the mail; he doesn't open the envelope.
Charles A. Rothfeld: --Then he would not have committed a crime.
Unidentified Justice: He just tears it up.
Charles A. Rothfeld: That's right.
Unidentified Justice: He says this is junk mail; I'll tear it up.
He just happens to be tearing up food stamps.
Charles A. Rothfeld: That's correct.
But he would not know that he was doing it to food stamps, which is an element of the statute under either reading.
Unidentified Justice: But if he opened the envelope and tore them up, then he would be doing it.
Charles A. Rothfeld: If he... if he--
Unidentified Justice: If he knew they were food stamps.
Charles A. Rothfeld: --knew they were food stamps, Justice Rehnquist.
If he simply looked... if it didn't register on him that they were food stamps, or he hadn't seen food stamps and didn't know what they were, he would not be subject to conviction.
Unidentified Justice: Well, he could probably... and you might have a tough time proving that he intended or knowingly received food stamps, if all he did was get it in the mail and open the envelope.
Charles A. Rothfeld: I think that's correct, Justice White.
And again, to the extent that such a person could be prosecuted, it is likely that... well, there is some possibility that he would be subject to prosecution under either reading so long as he was aware... if he happened to be familiar with the food stamp regulations, but did not know that it was a crime to tear up an excess food stamp, he would nevertheless, under the petitioner's reading, be subject to prosecution, because the line that would be drawn under the petitioner's reading is not one between people who are in some sense morally culpable and people who are not.
It's simply a line between people who are familiar, happen to be familiar with the contents of food stamps.
Unidentified Justice: Well, in this case it'd be a line between somebody who doesn't know it's wrong to tear up the food stamps and somebody who does.
I bet there are a lot of people who don't know it's wrong to throw away food stamps, who haven't dealt with them regularly.
I'm not sure everyone knows that.
Charles A. Rothfeld: Well, I'm not sure that situation arises with any frequency, Justice Stevens.
Unidentified Justice: But that's the kind of thing you want to cover.
You want to cover the people who do not know that what they're doing is unlawful.
Charles A. Rothfeld: We want to cover, I think, the situation--
Unidentified Justice: Or people you can't prove that they knew it was unlawful.
Charles A. Rothfeld: --That's correct, Justice Stevens.
And I think the situation in this case is an example of the type of people who realistically would fall within the reach of our interpretation of the statute.
Unidentified Justice: May I ask you to comment?
I hadn't really thought much about it before Mr. Huyck's argument, but he cited the Gypsum case... you remember the antitrust case... with no word of knowing anything in it at all.
And the Court held that in the criminal context, the general rule is you have presumed some kind of mens rea requirement.
Why isn't that case dispositive?
Charles A. Rothfeld: Well, I think there are several responses to that, Justice Stevens.
First, the type of thing that the Court was doing in Gypsum was preventing the offense from really being almost a true strict liability offense.
The Court in Gypsum did not require that the defendants be aware that their activities were a violation of law.
It simply required that they be aware that their activities would have the prohibited effect of inhibiting competition, which is analogous to the type of requirement we are contending for, that the defendant be aware that he is engaging in transactions involving food stamps.
I think Gypsum did not and the court of appeals in this case did not take the further step of requiring proof of familiarity with the requirements of the statutory scheme, which would be a very unusual thing for the court to do.
As the Court put it in the International Minerals case, which is probably the case most similar to this involving interpretation of a similar statute, that the general principle to be applied, termed a rule in the International Minerals case, is ignorance of the law does not excuse misconduct.
And that is the type of requirement that the petitioner's contending for: knowledge of the existence of regulations and what those regulations provide.
Unidentified Justice: Well, you don't get into all of these isolated cases like the Sullivan law in New York, which is absolute liability for possessing a weapon, and they've lived with that for 30, 40, 50 years.
Charles A. Rothfeld: Absolutely.
Unidentified Justice: And nobody's had too much trouble with that.
Charles A. Rothfeld: I think the Court has repeatedly upheld the--
Unidentified Justice: It's been upheld, and I'm talking appreciably in New York nobody raises any question about it.
Charles A. Rothfeld: --I think--
Unidentified Justice: And some people are completely innocent.
In one case a woman picked up the gun on a subway, and she just put it in a paper bag and carried it to the precinct.
And the sergeant said wait a minute, locked up.
She got out.
Charles A. Rothfeld: --I think that the Court's cases have consistently upheld the validity of statutes such as the one you've described in which knowledge... certainly knowledge of wrongdoing and in some cases knowledge really of any sort is not required.
Unidentified Justice: Well, may I ask, if you prevailed today, I gather there'd be no reason for you to bring any more prosecutions under (c), will there?
Charles A. Rothfeld: No, that's not correct, Justice Brennan.
Subsection (c) is aimed at--
Unidentified Justice: I know what it's aimed at, but if one presents food stamps for redemption, hasn't one acquired or possessed them?
Charles A. Rothfeld: --Certainly they have acquired or possessed them, but it would not necessarily be in a manner not authorized by law.
And to give you an example, if a grocer operates a large grocery store with many clerks who are taking food stamps, the clerk takes the food stamp in exchange for an item that he knows is an improper one, so he has committed a violation.
But the proprietor of the store, the person who is actually going to present the stamp for redemption, would have no idea that the stamp had been accepted in improper manners.
So far as he knows, it's collected in the normal course of business.
Unidentified Justice: Well, that would be... that would give him a defense under (c).
Charles A. Rothfeld: Under (c), that's correct.
Unidentified Justice: But it would not give him a defense under (b), under your view--
Charles A. Rothfeld: Well, he was not--
Unidentified Justice: --would it?
Charles A. Rothfeld: --I think it would, Your Honor, because he would not be the individual... we don't contend that subsection (b) implies respondeat superior liability on the proprietor of the food store who does not himself accept the stamp.
It has to be someone who knowingly accepted the stamp, and I think that is the grocer who accepts it.
The proprietor who then finds the stamp in his possession--
Unidentified Justice: Let me back up.
Now, the proprietor... I know you're not talking about respondeat superior.
But I own a grocery store.
One of my clerks violates the law and gets the stamps.
He gives them to me, and I don't know he's done anything wrong, but I am not authorized to have them, and I now pass them on to the government for money.
I have not violated (c) because I didn't know they were acquired illegally, but I have violated the regulation under (b), have I not?
Charles A. Rothfeld: --I'm not... I don't think that's correct, Justice Stevens.
Unidentified Justice: I have knowingly transferred the coupon.
That's what... I didn't know it was not authorized by law.
But I knowingly... I knew it was a food stamp.
I came right within the square language as you read it.
Charles A. Rothfeld: Well, the transaction between you, you as the owner of the food store, and your clerk is one that is authorized by law.
I think it would be the same thing, a clerk who accepted a food stamp from someone who had stolen it, for example, and then went into a food store and engaged in a permissible transaction, that clerk would not be subject to liability because the manner of the transaction was an authorized one.
It would be the individual who acquired the food stamp in the improper way who would be subject to prosecution.
Unidentified Justice: Let me just ask you, supposing one of my clerks is in some kind of a counterfeit operation.
He gives me a whole bundle of legitimate food stamps, but they've either been stolen or acquired in an illegal way.
Do the regulations authorize me to turn those into money?
Would I violate a regulation if I turned them in, or could I just go ahead and sell them and keep the money?
Charles A. Rothfeld: Well, you certainly couldn't go ahead and sell them if you--
Unidentified Justice: Because the regulations prohibit me from selling them, isn't that right?
Otherwise, why can't I keep the money?
Charles A. Rothfeld: --Well, I... the manner in which the grocer is redeeming them... he has accepted them in the normal course of business and is presenting them to an institution which is authorized to redeem them for him, and this is all in a manner that is authorized by law.
Unidentified Justice: Then why can't he keep the money?
Charles A. Rothfeld: Well, I'm not sure actually in that case, Justice Stevens, what the remedy would be, whether the remedy would recognize the grocer--
Unidentified Justice: The remedy would be, under your interpretation of the statute, he'd go to jail.
That's as I read it.
Under your interpretation of (b).
Charles A. Rothfeld: --Well, no.
Under our interpretation, the grocer would not go to jail.
People who improperly acquired the food stamps in the first place would go to jail.
And I think that in fact that the structure of subsection (b) and (c) provides significant support to our interpretation of the statutes.
Congress obviously intended there to be some sort of distinction between the reach of the two statutes.
The two statutes are written at the same time, and both are obviously addressed to the misuse of food stamps.
Unidentified Justice: Let me change my question.
Supposing my grocer has this big bundle of illegally acquired food stamps.
He's got them in his desk drawer.
He thinks they're perfectly lawful.
Is he now violating the statute?
Somebody walks in on him.
They find the food stamps there, and they got to him through his subordinate who had gotten them illegally.
He gave them to the boss.
The boss has them in his desk.
He possesses them.
Is he in violation of (b) or not?
I ask you first before the man tells him, and then later on a man comes in and tells him by the way, they're all stolen.
Does that make any difference on his liability?
Charles A. Rothfeld: Well, I'm not sure that he would be liable under... certainly in your first instance our position is that you would not be liable under (b), because the manner in which he had acquired them was an acceptable transaction.
Unidentified Justice: He got them from a subordinate who'd stolen them and brought them into the boss and said here are a bunch of food stamps, and he possesses them.
That's the charge now.
Is he possessing them illegally?
Charles A. Rothfeld: Well, let--
Unidentified Justice: And if he's not, does he start to possess them illegally when somebody tells him they're all stolen, you know?
Charles A. Rothfeld: --If the... well, I think to answer your second question first, yes, I think he would be at that point, because he would know that he was possessing them.
Unidentified Justice: Illegally.
Now, before he was told, all he knew was that he possessed them, but that's not illegal, you say.
Charles A. Rothfeld: Well--
Unidentified Justice: It seems to me the critical difference in your view is his knowledge.
Charles A. Rothfeld: --No.
Well, I don't think that's so, Justice Stevens.
I think the critical phase from our perspective is acquisition in a manner not authorized by law.
And to the extent that the grocer accepted the food stamps--
Unidentified Justice: Not just acquisition.
It's possesses, possesses.
Charles A. Rothfeld: --I think that either of those--
Unidentified Justice: And I'm asking you: a) whether the possession is unlawful when there are a bunch of stolen food stamps in his desk that he doesn't know are stolen; and b) does it become unlawful when he's advised that they're stolen food stamps?
And I really don't know your position.
Charles A. Rothfeld: --Well, I think in the instance in which he has no knowledge of any sort except that he has food stamps--
Unidentified Justice: He knows they're food stamps, and he knows he possesses them.
Charles A. Rothfeld: --And he knows that he possesses them.
I think he would not be liable under subsection (b) under our analysis of the statute, because again I return to the phrase he has accepted them in a manner authorized by law, which is--
Unidentified Justice: How would it help you if you used stolen money orders in place of the food stamps in Justice Stevens' question?
Charles A. Rothfeld: --Well, I'm not sure there is a federal statute which would--
Unidentified Justice: A federal statute of having stolen money orders?
You know of no such statute?
Charles A. Rothfeld: --Certainly, Justice.
Unidentified Justice: You'd better hurry up and pass one.
Charles A. Rothfeld: I think actually your hypothetical demonstrates our point.
If he knew that they were stolen food stamps, there certainly is a statute which makes known possession of stolen property illegal; and if he knew that they had been stolen, then he would be guilty under the statute.
Unidentified Justice: Well, all they were were money orders.
Nobody told him they were stolen.
Charles A. Rothfeld: If he had no--
Unidentified Justice: Nobody told him they were stolen.
Charles A. Rothfeld: --In that case, Your Honor, he would not be, so far as I know, guilty under any federal statute if he had possession of a property having no knowledge that it was stolen.
And I think the difference in the language of that sort of statute and the language of subsection 2024(b) is the knowledge element in the statute Justice Marshall has used as an example and 2024(c), in each case explicitly makes knowledge of impropriety the key to conviction.
The knowledge element in section 2024(b) which precedes the prohibited conduct but does not precede the 2024(c), does not make that type of distinction.
And I think that when Congress wrote the two statutes... there's very little discussion in the legislative history, Justice Stevens, that addresses the problem we've been discussing, so it's not clear to me that Congress focused on--
Unidentified Justice: This brings us back to the colloquy earlier in the argument about the difference between drugs or guns or things.
I mean you can see that if you just possess drugs, that's a crime.
You don't have to know there's a law against possessing drugs, but from the nature of the item.
But people can possess food stamps and not have any idea that they're doing anything unlawful.
But under your reading of the statute, they'd go to jail.
Charles A. Rothfeld: --Well, it's... where we differ with you, Justice Stevens, is the suggestion that they would not have any idea that they were doing some unlawful.
Unidentified Justice: Our hypothetical was the clerk in the grocery store was the crook, and he delivered the stuff to the boss.
That's how you differentiated between (b) and (c).
Charles A. Rothfeld: But in that situation the boss--
Unidentified Justice: Knows he possesses food stamps, but he doesn't know it's in violation of any regulation.
And is not that the classic example of what you say the statute applies to?
Charles A. Rothfeld: --I think the classic example of what we say the statute applies to is a situation such as the one here where someone... and I think--
Unidentified Justice: Yes, if it modifies "acquisition", it also modifies "possesses" in the same way.
Charles A. Rothfeld: --But I think the difference is a significant one, because your hypothetical is concentrated on a grocer who is a participant in the food stamp program who has authorized methods of acquiring food stamps and has acquired the stamps that you hypothesized have been stolen in the court--
Unidentified Justice: --That's exactly the person I'd be concerned with.
That's the reason for having a mens rea requirement in criminal law is to be sure you don't get innocent people sent to jail.
They should know they're doing something wrong before you send them to jail.
Charles A. Rothfeld: --And that is why, Justice Stevens, we think that Congress made the distinction between 2024(b) and 2024(c).
In the situation you hypothesize the grocer who has acquired the food stamps would be made liable really under respondeat superior theory.
It would be strict liability, because he would have acted in the normal course of events in an authorized manner, which is acquiring these foods stamps from a clerk who has presented them to the grocer.
That is authorized by the regulation, and he has done that.
He has acted in an authorized manner.
Unidentified Justice: Yes, but you keep avoiding the point, would you not agree that he would possess them in violation of a regulation under those facts?
Charles A. Rothfeld: Well, I'm not sure that he would, Your Honor, because possession is a strange word within the group of words in the statute.
There is no... really no authorized manner in the statute defining how to possess a food stamp.
There are descriptions of how to apply for food stamps, how to use food stamps.
But it's difficult to say that someone, once having acquired a food stamp, is possessing it in a manner that is or is not authorized by law.
And that, I think, is the problem is why your grocer hypothetical presents a difficulty.
I think that your suggestion that someone should not go to jail for something that they had no control over is taken care of in most examples under section 2024(b).
Someone who acquires a food stamp in whatever manner, say to use the facts of this case as an illustration, someone offers to sell a food stamp to a nonparticipant in the food stamp program or to a participant in the food stamp program.
That person, even if the nonparticipant has no detailed awareness of the requirements of the Food Stamp Act, nevertheless, I think it was the congressional view, and it certainly seems a reasonable view, that person would have some suspicion that food stamps are to be used by low income families and acquired by low income families for certain purposes.
Certainly any reasonable person would realize that there is some doubt about the propriety of acquisition of a food stamp in that manner, which is not true of the grocer you hypothesized, because he has accepted it in a manner which is authorized by law.
He has accepted it from his employee.
I keep returning to that--
Unidentified Justice: So all you're proving, all you're suggesting is that in the appropriate case it's easy to prove the requisite intent, and it's hard to prove it in a case such as the one I hypothesized.
That's exactly why Congress would probably impose an intent requirement.
I've taken too much of your time.
Charles A. Rothfeld: --Well, I think that your questions lead to an important point, which is the question of will people have any idea that what they're doing is wrong, what they're doing is potentially punishable or subject to federal regulation.
And I think that the vast majority of cases in which our interpretation of the statute will apply, I think in probably all cases that will be true, certainly for a huge portion of people who come in contact with food stamps, which are the participants in the food stamp program, people who accept food stamps.
They have been informed by the Department of Agriculture, by statute and regulation they must be informed of all the requirements of the food stamp program.
So all these people presumptively are aware of the proper means for acquiring food stamps and are aware if they acquire them in a manner that is not authorized by law.
And as for nonparticipants, it would be extremely surprising to find that anyone has any doubts, anyone walking along the street who's offered food stamps, any similar situation that that person has any doubts that the acquisition of food stamps may well be suspect and is certainly likely to be subject to some sort of federal regulation.
And to the extent that anyone has any doubts about that, the stamps themselves have enough tangible reminders to, I think, make anyone hesitate before engaging in a food stamp transaction.
They are marked nontransferable.
Food stamp booklets carry the warning that improper use is a felony.
Food stores by statute are required to post signs warning against food stamp abuse.
And I think given all of these circumstances, it is reasonable to treat a person who actually acquires a food stamp in some manner that's not authorized by law as being on notice that his activities might be regulated and might be suspect.
And I think I'd return to a point that was alluded to earlier, the question if misignorance of the law excusing this conduct.
And the Court has repeatedly suggested, as Justice Marshall's question indicated, that knowledge of the existence of a regulation, as in International Minerals--
Unidentified Justice: Isn't there something to the your opponent's contention at least that isn't completely disposed of by saying it's an ignorance of the law defense; that there the statute itself in one of its clauses speaks of awareness or what have you and the fact that it's not permitted?
Charles A. Rothfeld: --There's no doubt that Congress can and has made awareness either of the law or of some legal attendant circumstance an element of a defense, and I think Congress did that, for example, in 2024(c) where it made knowledge of some type of impropriety.
But generally when Congress does that it signals its intention explicitly.
We cite a number of examples in our brief at page 17 where Congress has either expressly made ignorance of the existence of some body of regulations a defense to a criminal charge, or other statutes when Congress has wanted to make possession or acquisition of a certain type of property turn on knowledge of the law or knowledge of the legal status of the property.
It has generally done so by using... either making intent to defraud an element of the crime or, as in 2024(c), by making explicit the requirement that the prosecution prove the defendant's knowledge of the type of property he was dealing with.
But section 2024(b) does none of those things.
It's simply a flat declaration that knowing conduct, if not authorized somewhere in the food stamp laws or in the implementing regulations, is a violation of law.
Unidentified Justice: Well, but don't you think that the language you're just talking about is... when you add to it the language
"in any manner not authorized by this chapter. "
is quite different than just a flat prohibition that
"whoever knowingly uses, transfers, acquires, alters or possesses coupons or authorization cards in any manner. "
I mean there you do have strict liability regardless of any knowledge.
But when you add to it the language
"not authorized by this chapter of the regulations. "
you've certainly brought in some kind of additional element.
Charles A. Rothfeld: Well, there is no doubt that some type of knowledge has been made an element of the offense, but I think the language of 2024(b), if construed the way petitioner suggests, would lead to peculiar consequences, given its use of the
"any manner not authorized by law. "
phrase, which is sort of an open-ended phrase.
It would require the prosecution to prove, if the requirement is taken literally, that the defendant knew that his actions were not authorized by any existing provision of the Food Stamp Act or of the implementing regulations.
And has been suggested in some circumstances, some cases, the defendant will have acted in such a suspicious or furtive way that the jury will be able to infer circumstantially that what he must have known what he was doing was wrong.
But that will not always be the case, and the facts here where the defendant seriously contended that he was unaware of the requirements of the food stamp law illustrate what can happen if a knowing illegality element is read into the statute given this open-ended language.
And here the defendant was involved, concededly involved in purchases of large quantities of food stamps for a substantial discount.
That is undoubtedly the type of action that most people would suspect to be of questionable propriety, but it would not be enough for conviction if there is a knowing illegality element in the statute that a reasonable person would have doubted the... had doubts about the legality of the defendant's action or that the defendant himself had doubts.
The Government would still be required, so long as the defendant could credibly claim that he had never read the food stamp laws or been told of their contents, the Government might well not have met its burden of proving that the defendant knew that no provision of law or regulation authorized his activities.
That is a very peculiar burden to place on the Government, and the court of appeals decision by declining to read such a requirement into the statute essentially has simply made it impossible for individuals who engage in these questionable food stamp transactions to be able to immunize themselves from liability by remaining ignorant of the nature of the food stamp law in the implementing regulations.
And I should add one very brief point which I think strongly supports the court of appeals decision, and that is the nature of the Food Stamp Act as a whole, and the other provisions of the Food Stamp Act which impose an enormously strict series of requirements and potential penalties on everyone who can be expected to come in contact with stamps to prevent every conceivable misuse of food stamps.
We set out in our brief this very fantastically complex and burdensome series of requirements, and it's very difficult to believe that Congress would have imposed these burdens on everyone who might possibly have any legitimate reason to come into contact with a stamp, and then allowed someone to engage in what everyone would realize to be a doubtful transaction and be able to avoid liability because he never bothered to learn the elements of the food stamp laws or its implementing regulations.
The nature of the Food Stamp Act I think also gives 2024(b) the characteristics that the Court has said repeatedly are typical of statutes in which Congress has not included a knowing illegality element.
And I think this responds to your basic point, Justice Stevens, about the danger of putting someone in prison who doesn't know what he was doing was wrong.
I think the presumption the Court has applied in cases like Gypsum and Morissette, when Congress has legislated against the background of common law offense, it is understood, unless it signals its intentions to the contrary, that it did not mean to direct the statute at anyone other than blameworthy defendants.
But that is not necessarily the presumption of statutes that have no common law analog, that, as Justice Blackmun along the court of appeals termed are statutes of prohibition rather than statutes of punishment that are designed to prevent some significant regulatory injury, and of particular importance, that operate in an area such as the food stamp area where certainly anyone who comes into contact with a stamp has a good idea that there is regulation.
These are not, as Justice Rehnquist suggested, these are not normal articles of commerce that everyone comes across every day, and they should be on their guard.
Now, given the nature of the Food Stamp Act, which allocates with as much precision as possible the necessary number of coupons to individuals in need, any violation of the Act's requirements, whether intentional or whether or not the person knew he was violating the Act's requirements, will detract from the achievement of the congressional purpose by necessarily detracting from the assistance being provided to the recipient household.
Unidentified Justice: But you do agree that subsection (c) requires specific intent.
Charles A. Rothfeld: Well, specific intent I think is a confusing phrase.
Unidentified Justice: Or whatever... mens rea, at least knowledge of wrongdoing.
Charles A. Rothfeld: Knowledge that the stamps were acquired in the manner described.
He may not know that his redemption of the stamps acquired in that manner subjects him to criminal penalties.
But we certainly acknowledge that, because we think Congress was concerned with precisely the point that we discussed at length before.
It did not want someone who had no reason to be on notice that his actions were suspect to be able to be subjected to criminal liability.
I think it hardly seems unfair in the vast majority of imaginable cases that someone who is engaging in questionable food stamp transactions could be subjected to criminal penalties.
And given the enormous complexity of the Food Stamp Act and the congressional purposes, on the crucial question of the case, which is congressional intent, there is no reason to think that Congress would have wanted someone who engaged in a harmful food stamp transaction that he should have suspected to be of questionable validity to be able to escape punishment by remaining ignorant of the requirements of the law and the implementing regulations.
Chief Justice Warren E. Burger: You have four minutes, five minutes remaining, Mr. Huyck.
ORAL ARGUMENT OF WILLIAM THOMAS HUYUCK, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL
William Thomas Huyck: Thank you, Your Honor.
I do not agree, of course, with the Government that Congress has put a tremendous burden on the Government in proving a case that they would have to prove knowledge of complex regulations.
What the Government has to prove is that the defendant knew that what he was doing was unauthorized, was in a manner nonauthorized.
That doesn't mean that he has to... it's no more difficult than proving criminal intent in any other case.
And the Government answers its own argument when it then, in response to the examples that were given about the possible reach of their interpretation, keeps coming back with the argument that reasonable people would have some suspicions in a case like this.
That precisely makes my point.
In any kind of case that the Government has any business bringing under this criminal provision, you have a situation... basic fairness dictates that you would have a situation where people would agree a reasonable person should have some suspicions, should have known that there was something wrong.
And in addition, you have the particular circumstance here of an enforcement program that gives extensive notice.
You have visits, warning letters, et cetera, et cetera.
So that it's particularly true in this case that wherever the Government is reasonably directing enforcement, this is not a tremendous burden to prove knowledge that they're violating the statute.
The questioning about the grocer just points out what the possible breadth of reach of the Government's interpretation is, and the regulations are very thick indeed, and the statute is very complex.
I, searching for an example, on page 25 of my brief I put in an example about a particularly complex regulation about an elderly person receiving an allotment because he was a separate household from people that he was living with.
And that's the same example.
If he didn't meet those criteria, he would be acquiring his food stamps in a manner not authorized by the statute.
The Government probably reasonably wouldn't prosecute such a person; but I think that we've got to give a reading to the statute that wouldn't allow such--
Unidentified Justice: How does that affect your client?
William Thomas Huyck: --Pardon me?
Unidentified Justice: Did your client get those regulations?
William Thomas Huyck: No.
Unidentified Justice: Of course not.
He wasn't interested in them, was he?
William Thomas Huyck: --That's an example of someone who could be prosecuted under the Government's example... reading of the statute; however, they probably never would.
But I think that the statute should be given the reading that Congress intended, reasonable requirement of proof by the Government that people--
Unidentified Justice: Mr. Huyck, in your view would an instruction by the court in this case telling the jury that if the defendant had reason to know the stamps were unlawfully acquired, would that have been sufficient in your view?
William Thomas Huyck: --Yes.
That would meet... I think here again is a place where the Model Penal Code is useful.
Unidentified Justice: So you don't think that it requires actual knowledge.
You think it should be read as though it said having reason to know is sufficient.
William Thomas Huyck: Yes.
I would commend to the trial judge the Model Penal Code's definitions here where they make allowance for that kind of knowledge.
Unidentified Justice: Of course, you're dealing with a statute where the adverb is "knowingly".
It seems to me you can very reasonably read the word "knowingly" into the second clause of the statute, or you can say there is no intent requirement, because "knowingly" isn't found in this.
But how you can say their having reason to know, which is nowhere found in the statute, I don't know.
William Thomas Huyck: Well, here again, if we're going to have an era where federal trial courts are going to more precisely instruct juries on mental intent than they have with this boilerplate instruction I used in this case, probably there's going to have to be some guidance.
And I think that in many states in this Union, I think 38 of them, they use the Model Penal Code.
We don't have a federal criminal code that does that.
But I think that this is a very good example of how using the considered opinion of the American Law Institute would bring about a good definition for a case of this type.
The question was asked whether United States Gypsum is dispositive here.
What I would like to point out about United States Gypsum is it's one of three cases... the Bailey case, the U.S. Gypsum case, and the Freed case... where this Court has addressed statutes where no intent term is set forth and has adopted the very reasonable positions of the Model Penal Code on what kind of mental elements should be reasonably found in a statute.
And I think that certainly the U.S. Gypsum case stands for the proposition that if it's a felony, and cites the Model Penal Code for this, you ought not to be sending unknowing persons to prison for a felony except in very limited circumstances.
And I think it's very clear that the only limited circumstances this Court has ever recognized are cases such as Yermian where you're talking about a jurisdiction, and the dangerous instrumentality cases.
Chief Justice Warren E. Burger: Thank you, gentlemen.
The case is submitted.