Transcript

IN THE SUPREME COURT OF THE UNITED STATES

SILLASSE BRYAN, Petitioner v. UNITED STATES

No. 96-8422

March 31, 1998

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:19 a.m.

APPEARANCES:

ROGER B. ADLER, ESQ., New York, New York; on behalf of the Petitioner.

KENT L. JONES, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.

PROCEEDINGS

11:19 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in Number 96-8422, Sillasse Bryan v. United States.

Do not talk until you get out of the courtroom. The Court remains in session.

Mr. Adler.

ORAL ARGUMENT OF ROGER B. ADLER ON BEHALF OF THE PETITIONER

MR. ADLER: Mr. Chief Justice, and may it please the Court:

This case is about whether Congress' use of a wilful mens rea standard in title 18 U.S.C. 924(a)(1)(D) requires proof of knowledge of Federal licensure.

QUESTION: Mr. Adler, our acoustics are very good here. You don't have to speak quite that loudly to get through to us.

MR. ADLER: Yes, Your Honor.

Petitioner urges the Court and petitioner adopts the reasoning of the Circuit Courts of Appeal of the Third, Fifth, Seventh, Ninth, and Eleventh in following this Court's holding in Ratzlaf v. the United States that wilfully, as used in this statute, requires proof of actual knowledge of licensure.

Here, this Court should know that the--

QUESTION: Mr. Adler, do you take the position that, in order to act wilfully within the meaning of this particular statute, that the defendant has to have knowledge of the specific statutory provision?

MR. ADLER: No, Your Honor. We part company with the Government by indicating that it is knowledge that there is a Federal licensing requirement. Chapter and verse are not required in order to convict the defendant, beyond a--

QUESTION: Well, you urge, then, that the defendant has to know there is a Federal licensing requirement for gun dealers?

MR. ADLER: Yes, Your Honor, knowledge or suspicion of the existence of a State licensing requirement, municipal ordinance or the like, will not suffice under respect for federalism this statute penalizes, as only it can, a violation of a Federal licensing requirement, and--

QUESTION: It isn't enough for him to know he can't sell firearms with out a license, generally? He has to know that he can't sell it without a Federal license?

MR. ADLER: That is what Congress wrote. That was the intent of the drafters of the Firearm Owners Protection Act, and let me put this into a context, if I may.

The Government in this case has knowingly chosen to pick the most difficult subdivision under section 924 by proceeding to prosecute under subdivision (a)(1)(D).

It chose not to prosecute on a lesser standard of knowingly for making a false statement in the context of the application to acquire the weapon under 924(a)(1)(A). It chose not to prosecute under 18 U.S.C. 922(k), trafficking in defaced firearms. It chose not to proceed under a violation of the Travel Act.

QUESTION: Well, why would the Congress want to exonerate or not to punish under this statute a man who was quite sure that a license was required but he thought it was a State license.

MR. ADLER: Congress--

QUESTION: You say respect for federalism means that we have to accept your view that he has to know that it's a Federal statute. It seems to me that Congress wanted to punish people who had a guilty mind and who were dealing in drugs knowing--or dealing in weapons knowing that it was illegal to transfer without a license, and the fact that State, municipal, Federal license, it seems to me certainly the state of mind is the same.

MR. ADLER: Well, quite to the contrary, and I think it has to be viewed in the following context, Justice Kennedy. A majority of the States do not have statutory controls with respect to firearms, and in this case--

QUESTION: No, but in the hypothetical case he thinks that--he knows that there--what he's doing is illegal, and he knows that it's illegal because he doesn't have a license. He's not sure if the license is State or Federal.

And your answer to Justice O'Connor and I think also to Justice Scalia was, he has to know that it's a Federal requirement.

MR. ADLER: That's correct.

QUESTION: And I'm asking, why would Congress want to exonerate him in the first instance where he thinks it's a State license. What possible function is served by that?

MR. ADLER: Part of the background to the enactment of the so-called FOPA statute in 1986 reflected, as the legislative history indicates, a concern by the Congress.

A 7-year effort was mounted in order to react to complaints from those who were gun enthusiasts who believed that, since the 1968 statute went into effect, the Federal Bureau of Alcohol, Tobacco, and Firearms had been too overzealous, had targeted unfairly, and basically come down upon those who enjoyed utilizing firearms, going to gun shows and the like. The basis of--

QUESTION: What was that statute you said, the FOPA statute? Is that what you said?

MR. ADLER: Firearm Owners Protection Act.

(Laughter.)

MR. ADLER: And, indeed--and, indeed, the very statute, I respectfully submit, Justice Scalia, sends the message to the court of the intent of the drafters of the Congress.

It was intended to provide protection to firearm owners, dealers, and the like. It was intended to make it more difficult for the Government to convict individuals of violating the statute, and this particular subdivision, and the only subdivision which is before this Court in this case, deals with the section of the statute which, following a textual analysis, chose the mens rea standard of wilfully, a--

QUESTION: Mr. Adler, supposing you were to accept, hypothetically, the idea that all that was required under (D) was to know that there was a licensing requirement, be it State or Federal, the district court, as I understand this case, charged that the Government is not required to prove that petitioner knew that a license was required.

I would think even if you accepted hypothetically the idea that it could be knowledge of a State requirement, that instruction would be contrary to that view.

MR. ADLER: That is correct, Mr. Chief Justice. As a matter of fact, Justice Trager, in denying the request to charge, I think wrote the ticket that brings me before your--this panel today.

On page 18 of the appendix Justice Trager directs me, go to the Supreme Court and see if they agree, I will not put the end to this statute, and so at that request I have brought myself to Washington to urge this Court to give meaning to subdivision (1)(D), which indicates that a wilful standard, which as Justice White, writing in Cheek v. the United States, indicated was a voluntary, intentional violation of a known legal duty, and in this case the known legal duty is the duty to have a Federal firearm dealers license.

QUESTION: Mr. Adler, why do you need to put Federal in there. If I read from the charge, in this case the Government is not required to prove that petitioner knew that a license was required, nor is the Government required to prove that he had knowledge he was breaking the law.

Why can't you just say, whatever the wilfulness means, it can't mean that he doesn't have to know he was breaking the law, he doesn't have to know the license was required, and why are you making this yes, you must know that it was a Federal law?

Our federalism may be a big thing here, but not all the public appreciates that distinction.

MR. ADLER: I appreciate that, Justice Ginsburg and petitioner respectfully submits that, under the charge as given to this jury, and presuming that the jury followed the law, you're absolutely correct that petitioner should prevail. The Government's view could not be found based on the trial court's charge.

QUESTION: Well, but you didn't raise that issue. That's not one of the questions presented. Your questions turn entirely on the need to prove a Federal--

MR. ADLER: Yes.

QUESTION: --firearm dealers license--

MR. ADLER: Because we do not--

QUESTION: That's all you brought here.

MR. ADLER: Right.

QUESTION: Now, the instructions may have been totally bad, but we don't reach that, presumably. We address--

MR. ADLER: Well, it's the second question.

QUESTION: Well, I don't think it is. Your section question, was the jury's--was the jury charge deficient because it failed to require a finding of petitioner's knowledge that a Federal firearm dealer's license was required.

MR. ADLER: Yes, and petitioner's position is that the Congress lacks the power to create a Federal crime for failing to follow a municipal county or State statute that may relate to dealership and, indeed, the legislative intent in the statute was clear.

The villain perceived by the drafters of the amendment--and there was a unique legislative history, 7-year effort, a discharge petition getting this legislation out of the Judiciary Committee. This was clearly a regional effort of those who were close to gun users and possessors who wanted to trim the tail of the Bureau of Alcohol, Tobacco, and Firearms.

The legislative debates, with the greatest respect, Justice O'Connor, are devoid of an indication of a concern that the firearm enthusiasts had a problem with State or local individuals, so the statute was clearly aimed at the Federal Bureau of Alcohol, Tobacco and Firearms.

We have a troika of three reasons which basically support our--petitioner's view that knowledge of licensure is required. The statutory title telegraphs the intent of statute--Firearm Owners Protection Act--in the same way that the Clean Water Act telegraphs a congressional intent to take a strong line to protect the environment and to hold corporations to a higher standard of proof.

The plain wording of the statute, the use of the word wilfully as opposed to the use of the term knowingly in other sections, of section 924 also sends the very same message of congressional intent.

And lastly, the congressional report which, as the Chief Justice has noted on prior occasions such as in Garcia v. The United States, is marked as the defining document to which the Court, if it reaches legislative intent, should look indicates that the Congress was on notice--Representative Hughes in the floor debates indicated if you adopt wilfully you're going to require knowledge of the licensing requirement--that Congress was aware of it, and they voted it, and they inserted that language into the statute which was passed and signed into law and became the law of the land.

In addition--

QUESTION: Did the President know about it, too?

MR. ADLER: In addition to the knowledge of the--

QUESTION: Do we know if the President knew about it?

MR. ADLER: We must presume that all officials, including the President, had knowledge of the law and followed their duties.

QUESTION: Why don't we do that for Congress?

MR. ADLER: In addition to the contextual analysis that we have spoken to, the statute itself, 924, uses knowingly as noted on three other occasions.

Interestingly, the statute itself, when it speaks to sales by gun dealers to out-of-State individuals, inserts a presumption that the seller of the firearms to an out-of-State buyer is presumed to have knowledge of the law--Section 922(b)(3)--once again supporting the notion that the Congress understood that it was actual knowledge that was necessary.

And, to the extent that there might be a class of individuals who would not necessarily know the law of the sister State from which the buyer had come, Congress inserted a presumption in order to deal with that situation.

No presumption is found in subdivision (D), once again indicating clear support that whether the Solicitor General's Office is comfortable with that view, the Congress knew what it wanted and it intentionally made prosecutions more difficult.

QUESTION: How much weight do you put on the distinction between knowingly, the word knowingly, the adverb in sections (A), (B), (C), and the word wilfully in section (D)?

MR. ADLER: Oh, I think the use of wilfully in subdivision (D) connotes the highest mens rea standard that our law, our criminal law recognizes, whereas knowingly speaks to only an awareness of one's acts, or conduct.

When we speak of wilfully violates, and the section says a provision of this chapter, it is much similar to Justice Ginsburg's opinion for the Court in Ratzlaf v. the United States. Wilfully modifies not conduct but this section of this chapter, so when we see wilfully married to a chapter, a clause, a section, then we know that the Congress has telegraphed the intent that wilfully modifies in this case the chapter, and it is knowledge of the chapter which the statute requires.

QUESTION: Well, now, you say that we know that Congress has married wilfully to the chapter. I must say I don't quite follow that.

MR. ADLER: Well, a reading of section 924(a)(1)(D) indicates, most respectfully, that it punishes those who wilfully violate any provision of this chapter, and so the use of the term, wilfully violates any section of this chapter, connotes it is wilfully violates the chapter, not wilfully engages, or knowingly engages in certain conduct.

The prior three subdivisions, most respectfully, we concede speak to merely engaging in knowing behavior and not wilful behavior.

QUESTION: And you say knowingly simply means you're aware of the act that you're performing.

MR. ADLER: And don't act by reason of mistake or misapprehension of the law, but so it's clear, we concede that one could wilfully violate this chapter by engaging in what is frequently called conscious avoidance behavior of a kind such as if there were a sign posted in a gunshop and a particular defendant operated through what is sometimes called straw purchases, sending in an accomplice to purchase the weapon.

That would provide no defense in a prosecution for wilfully, because the individual acted in a way to consciously avoid gaining knowledge that was readily apparent.

QUESTION: I thought they were straw persons used here, and there was misrepresentation of the purchaser's criminal record and, unlike Ratzlaf and the Cheek case, where the conduct looked okay, except that there was a statute that said no structuring on the one case, but here the whole thing looks bad, doesn't it?

MR. ADLER: Well, there are individuals who can engage in conduct that may violate a provision of law, or simply is inappropriate behavior. The question is, does it violate this section, which requires proof of knowledge of licensure.

Certainly, the Government could have proceeded on a proper charge to prosecute the defendant for crossing State lines with defaced firearms, for making false statements and aiding and abetting in the false statements. They chose not to proceed under those subdivisions. They chose the highest burden, that he knew that he required a dealer's license.

QUESTION: But Mr. Adler, is it not correct that one could still draw a distinction between knowingly and wilfully? Knowingly would mean you just knew what you were doing--you didn't know whether it was illegal or not, but you knew you were doing these various act--and wilfully, requiring a proof that you knew you were violating the law, without adding a still additional requirement that you had to know exactly what law you were violating.

MR. ADLER: Well, it's not our contention, Justice Stevens, that you have to know exactly what--

QUESTION: Well, you can know that there's a Federal licensing requirement.

MR. ADLER: You have to know it's a Federal licensing--

QUESTION: Why?

MR. ADLER: --and--because the wilfully in this case is followed not by a description of specific factual behavior, it is coupled with the use of the term, wilfully violates this chapter, and this chapter is speaking to in this case the Federal firearm dealers license.

Not every transaction is a per se violation of this section. One is only a--covered as a, quote, dealer within the meaning of this statute if one engages in purposeful activity and so on, so the Congress was clearly concerned about--

QUESTION: So you're not merely relying on the difference between knowingly and wilfully, and (A), (B) and (C) versus (D), you're also putting heavy reliance on violates any other provision of this chapter.

MR. ADLER: Exactly.

QUESTION: You'd read into that he must know he's violating--

MR. ADLER: As--

QUESTION: That's not a necessary reading, but certainly I understand your position.

MR. ADLER: Yes, and the--

QUESTION: You'd say if it meant the other it would have been written, or should have been written, wilfully--wilfully sells a gun without a license. That would arguably be different. All you would have to know is that selling the gun without a license was unlawful under some law.

MR. ADLER: Yes. Anything less than actual knowledge will not suffice. The Congress could have used the word--

QUESTION: Well, wilfully selling a gun without a license wouldn't necessarily mean that you knew you had to have a license. You wilfully--you're still wilfully selling the gun.

MR. ADLER: With the knowledge that you're intentionally violating a known legal duty. In this case the known legal duty is the acting without a Federal firearms dealer's license.

QUESTION: But known legal duty also can mean knowing that you have a legal duty, so you are violating--you don't have to necessarily know which one. Suppose I--suppose that's my view of it, that wilfully means you have to know that what you're doing is a violation of the criminal law. Suppose I think that. Then you lose this case?

MR. ADLER: No. It--you have to have the--what the statute penalizes is knowledge of the dealer's license. The fact that there may be other sections that you suspect--

QUESTION: No, you're not following what I'm saying. I'm back to where Justice Ginsburg and Justice O'Connor were. I believe--in fact, I probably do believe this, that wilfully means you must know that your conduct is in violation of a criminal law, not which criminal law.

Most criminals are not familiar with the U.S. Code in depth. What they think--but it is possible to say that they have to know that what they're doing is a violation of Federal criminal law.

I also think, as Justice Ginsburg might have suggested, that this instruction is ambiguous in that respect, that it certainly could be read as saying, you can convict this person even though he did not know that what he did violated the criminal law.

But then I'm with Justice O'Connor. I don't see your objection to that, and so that's what I would like you to respond to, and that was my question. If taking the view I just take, do you win, or do you lose?

MR. ADLER: We take the position that 1) under the judge's charge the Government cannot prevail because even the standard that the court would suggest, generalized knowledge that there's some section of Federal law prohibits the behavior--

QUESTION: All right. Now would you go to the point that I think Justice O'Connor raised, which is instruction request number 8 does not seem to request--it seems to request an instruction that he has to know the U.S. code, and then I didn't see here anywhere an objection to the instruction the judge actually gave, and that's why I started this out thinking you must win because the instruction's ambiguous, but I'm not certain that's right. Now I think maybe you must lose.

So since I've thought you must win, then I think you must lose, I think that I'd like your response.

(Laughter.)

MR. ADLER: The charge is deficient and was objected to. The request to charge focused the court--we cited to Ratzlaf indicating that it is knowledge of the licensing requirement that had to be charged. That charge was not given.

The judge went further. He told the jury that the defendant did not have to know of the licensing requirement and did not have to know he was breaking the law, so under this charge he took the issue out of the case that you suggested, and we objected to that.

QUESTION: You objected to, he did not have to know he was breaking the law?

MR. ADLER: Yes, and indeed our request to charge asked the Court to make it clear that this defendant, who was learning disabled and acting in a State which has no licensing requirement in Ohio to begin with, certainly had no basis to know that there was a Federal--

QUESTION: I've read--I've read number--

QUESTION: You objected in some manner other than filing the requested charge, which insisted upon knowledge of the Federal--

MR. ADLER: Yes, and we had a charge conference, and we objected to it.

QUESTION: Fine. Is that in the record?

MR. ADLER: Yes.

QUESTION: Where? What I've read here is page 17, which has your request number 8, which has the details in depth about you have to know the U.S. Code.

Then I believe that you said the word objection, but where is it that you--you know, district judges are busy, they don't catch every mistake, and so someone has to say to the judge, judge, you've made a mistake. The particular mistake that you've made is--and then you spell it out so he understands it. Where is it?

MR. ADLER: I don't have that charge reference with me here today, Your Honor. I can supply it to the Court in a post argument submission.

But I do recall the charge conference did have specific discussions, and I did take exception, and it was at that point that it prompted Justice--Judge Trager to indicate, take it to the Supreme Court, so it was in that exchange--

QUESTION: In other words, you're saying that even assuming that you'd lost the battle over Ratzlaf you made the further objection that this instruction is wrong--

MR. ADLER: Yes.

QUESTION: --even under the Government's theory?

MR. ADLER: Yes, we do, and we respectfully submit that where the Government is coming from on this case is attempting to hold that guns are inherently dangerous substances, and relying on cases like Balint, that deal with narcotics, hand grenades, such as United States v. Freed, and silencers, such as in the cases, the circuit court cases cited in our brief.

And it's a position, we respectfully submit, which is wholly unsupported by the history of decisions by this Court. The area itself is constitutionally protected, the Second Amendment, and in the context of decisions that Congress has made in other areas it has used wilfully in a very sparing way.

They know how heavy this burden is. They've used it, for instance, in areas such as this. They've used it in the OSHA area. There's a recent Seventh Circuit case, United States v. Ladish Moulting, a Judge Easterbrook opinion that came down the end of January, that once again indicates how sparing the wilfully standard is.

Once again, the Government's position would have been better had they prosecuted under a different section, or a subdivision of section 924 that had a knowing requirement and not a wilfully requirement.

In terms of the Government's view they have created the veritable straw man. They ask the Court in effect to feel sorry for the heavy burden that they have because they selected a particularly difficult section with the highest known burden of proof.

The standard that they urge this Court to adopt is a general knowledge of unlawfulness. This invites the greatest conjecture and speculation on the part of lay jurors. It is a standard that was never submitted to this jury. It is a standard that will not be found, we respectfully submit, in the House debates, in the committee report--

QUESTION: But you say it was never submitted to this jury, but the instruction--one of the sentences says, a person acts intentionally if he acts deliberately and with the specific intent to do something the law forbids. That submitted that to the jury.

MR. ADLER: But then unfortunately the court at the same time then instructed the jury that in the context of deciding mens rea knowledge and intent the jury should know that the defendant was not--need not be shown to have known the licensing requirement or, most importantly, Justice Stevens, the knowledge that he was breaking the law. This is a--the type of a charge I would respectfully--

QUESTION: Well, the instructions are internally inconsistent, and the Government--the Government argues, in effect, that the message was the one that I described, and the question, though, is whether you really focused on that narrower objection, because the portion of your objection that's quoted on page 18, right before the judge says take it to the Supreme Court, relied entirely on the absence of an instruction about the licensee. That's what you--you call attention to Ratzlaf right there.

MR. ADLER: Yes, in the context--

QUESTION: I haven't found in the papers that we have the narrower objection to the--

MR. ADLER: Yes, sir.

QUESTION: You know what I'm talking about.

MR. ADLER: Yes, sir, I do. I simply want to point out that the Government urges the difficulty of convictions, cases such as United States v. Rodrigues from the Fifth Circuit, cited in our brief United States v. Allah out of the Second Circuit, provide the kind of fact patterns which we respectfully submit under a fair and correct charge can result in verdicts that are sustainable by the courts of appeal and sustainable by this Court.

We respectfully submit that this is nothing more than a red herring in order to encourage the court to give the Government a lesser burden of proof.

In essence, what the Government has done here in its brief today is to argue the reverse of Bates v. the United States. In Bates, it was the defense that argued that this Court should somehow read something more into a statute dealing with the fraudulent use of student loan moneys. Now, the statute indicates wilfully violates this chapter and the Government says, well, you should read something out of it.

Our textual argument on behalf of petitioner recognized that the bar is set for all. It does not vary. If it help[s the defendant, so be it, if it hurts the defendant, so be it, that's what the Congress wrote, and accordingly we respectfully submit that the Government's approach ought not be followed.

Before I sit down, reserving the balance of my time, I simply want to indicate in response to Justice Stevens' question that we rely on Francis v. Franklin as an example of the case of internally conflicting jury instructions as a basis for this Court granting relief under the charge.

The Government does not argue harmless error. Indeed, under Sullivan v. Louisiana we respectfully submit they could not, and we respectfully urge this Court to reverse the conviction, and remand it to the United States Court of Appeals for further proceedings.

Thank you very much.

QUESTION: Thank you, Mr. Adler.

Mr. Jones, we'll hear from you.

ORAL ARGUMENT OF KENT L. JONES ON BEHALF OF THE RESPONDENT

MR. JONES: Mr. Chief Justice, and may it please the Court:

In 1992 petitioner began making repeated trips from New York to Ohio, where, with the aid of several accomplices, he submitted false information on Federal forms. He surreptitiously purchased numerous semiautomatic pistols. He undertook to conceal these acts by filing the identification numbers off the guns, and then he transferred the guns to New York, where he sold them for a profit at weed spots on street corner locations in Brooklyn.

Now, these facts lie at the very heart--

QUESTION: He's only 19 and he had a hard childhood, though. Would that solve something like this?

MR. JONES: I'm not--I can't endorse that conclusion. I'm not--I do know that he was--I think that he may have been 19 at the time that he committed this offense.

This--these set of facts lie at the heart of the statutory--

QUESTION: Well, wilfully means something more than knowingly, so we have to figure out--

MR. JONES: Yes.

QUESTION: --what it does mean, and in any event the instructions seem to be totally confused.

MR. JONES: Well, let's start--

QUESTION: They could be said not even to require knowingly, so I don't know where we are on this case.

MR. JONES: Let's start with what wilfully means. Since this Court's decisions in Murdock, Screws, and Thurston the Court has described what a wilful behavior is. Wilful behavior is an act taken with the bad purpose to disobey or disregard the law. It is act taken with what the Court described in Murdock as an unjustified indifference to the requirements of the law.

QUESTION: Well now, Mr. Jones, do you think the word wilfully just has a uniform meaning no matter what the other context in which Congress has used it?

MR. JONES: No. It clearly has a meaning that can depend upon context.

QUESTION: And here you have it juxtaposed with three previous sections, all of which used the word knowingly.

MR. JONES: Yes, and the word knowingly, as this Court has said in cases like Staples, is simply knowledge of the facts.

QUESTION: Knowledge that--conscious of your actions.

MR. JONES: That's right. Knowledge of the facts that constitute the violation. The ordinary definition of wilfulness is something in addition. It is knowledge of those facts plus action taken with the bad purpose to disobey or disregard the law. I mean--

QUESTION: Wilful--

MR. JONES: --wilful behavior is.

QUESTION: Just a minute, Mr. Jones.

MR. JONES: Yes, sir.

QUESTION: Actions taken with a bad purpose to disregard the law. Does that mean knowing that the law prohibits something?

MR. JONES: It could include that, certainly, but it could also include the situation where someone is, as the Court said again in Murdock, unjustifiably indifferent to the requirements of the law.

It is--if you think about where the word wilful comes from, wilful behavior, what does that mean? It means doing what you want to do because you want to do it without sufficient concern for the interests and rights of others.

QUESTION: Well now, how does a judge charge the jury? Without sufficient concern for the law, what on earth does that mean?

MR. JONES: Well, the basic charge that this Court has approved in cases like Pomponio is exactly the charge that the Court gave, which is--

QUESTION: This confused--

MR. JONES: Not all of it, but the portion of the charge the Court gave that says that the act must be with the--the Government has the burden of showing that the act was with the bad purpose to disobey or disregard the law. I mean, that's the fundamental elementary concept.

QUESTION: Well, okay. Now, you--let's think that through. The bad purpose to disobey or disregard the law. Does that mean knowledge that the law prohibits it?

MR. JONES: Certainly that would satis--

QUESTION: Well, I mean, answer my question.

MR. JONES: It includes that, Justice--Chief Justice. It includes that. If you have knowledge of what the law is then you are disobeying it. If you--

QUESTION: But what else does it include?

MR. JONES: Well, it can include an appreciation or an understanding that's short of knowledge that there are legal requirements that apply here. That is what the Court talked about in Murdock as indifference to the law.

QUESTION: How would one prove in a trial that a person was indifferent to the law although not knowing that it was violative of the law?

MR. JONES: The--

QUESTION: He failed to look up the U.S. Code?

MR. JONES: Well, no. The Court has approved something quite different from that. What the Court has approved in cases like Spies is--would be exactly applicable here, and that is that evidence of concealment or of covering up of illicit activity is the type of evidence that shows a bad purpose to disobey or disregard the law.

QUESTION: So if you act furtively, that would--

MR. JONES: Furtively, or as Spies said, to cover it up or to hide it.

Now, in only two cases has this Court imposed a higher standard for wilfulness, the standard for which the petitioner argues, which is a knowing violation of a known legal duty, and in those two precise contexts the Court made clear that it was adopting a special rule for the special facts of the statutes that were then before it.

QUESTION: That's the tax case--

MR. JONES: The tax cases--

QUESTION: --and the welfare--the food stamps?

MR. JONES: No. The tax case in Cheek, and the structuring case in Ratzlaf, and the special reasons that the Court said justified this higher standard in those particular contexts just don't apply here.

In Cheek the Court was concerned about an Internal Revenue Code that applies with intricate complexity to almost every facet of the economic life of every citizen.

QUESTION: I--let me think that wilful sometimes means two totally opposite things, sort of like unpeeled. I mean, let's forget the instance where it means intentional and knowing, you know, words meant to be very broad. Let's focus only on the instance where it's supposed to mean something more than knowing, all right.

Now, focusing on that instance, which I think we have here, I go back to the Chief Justice. We could say, in order to clarify earlier cases, that the defendant, the jury must be charged the defendant must know that he is violating the law, though not which law, criminal law, and add, of course, reckless disregard for the law in this instance, i.e., reckless disregard for whether or not there exists a criminal law that forbids it is equivalent to knowledge.

MR. JONES: Or is a sufficient substitute for it.

QUESTION: Or--now, we could say that.

MR. JONES: And you have said that.

QUESTION: If you--if we said that, is there anything in your opinion that would wrongly be left out?

MR. JONES: I think that that sort of description can be found in decisions like--

QUESTION: I'm no asking whether it could be found.

MR. JONES: Well--

QUESTION: I'm asking, if we clarified it in that way--

MR. JONES: You're--

QUESTION: --is there anything that would be wrongly, in your opinion, left out?

MR. JONES: I--the only--the only--the hesitation that I have is that the Court has adopted a variety of formulations that address this ordinary meaning of wilfulness, and I'm a little bit uncomfortable in saying that you can pick out a single one of them and be certain that it accomplishes everything that the Court has done with the other formulations. For example--

QUESTION: Another thing we could say--could we say this, because you can't think of an example.

MR. JONES: That's true.

QUESTION: Could you say, it includes--normally it means--

MR. JONES: Yes.

QUESTION: Normally it means you must know the legal duty, as in this case, know that there is a legal duty. We leave up in the air whether there could be instances where they are equivalent to knowledge, though not actual knowledge. Is that, in your opinion, what the Court should say?

MR. JONES: No. I think that it's--that you can act with indifference to a legal requirement that you do not know, as you may have been intending when you used the word, and so I think that's precisely why the Court has adopted broader formulations.

I want to--I think one thing that's a little bit confusing here is the fact that the statute talks about what is criminal as a wilful violation and petitioner says, oh well, how can you wilfully violate a law if you don't know what the law means?

The answer to that is in the Court's opinion in the International Minerals case, where the Court had a similar statute, and what the Court explained was that that is a shorthand. When Congress says wilfully violate A, B, C, D, E, F, G, which is essentially what it did here, that that's a shorthand for saying wilfully engaged in the conduct that is proscribed under A, B, C, D, E, F, G, and so what we're focusing on here is, what is the wilful behavior, and--

QUESTION: Well, except that that conflates it, it seems to me, with knowing, and we weren't trying to distinguish knowing and wilful, were we?

MR. JONES: You have distinguished knowing from wilful, and we want to make--I want to be clear on that, especially since this the statute distinguishes it.

QUESTION: No, but did we do it--and I just don't know the answer to this. Were we distinguishing those two terms in the case that you cited?

MR. JONES: In Murdock--Murdock would have been a statute that contained separate offenses for knowing and wilful, but that's not the issue there.

QUESTION: I guess my only point is, sure, I can understand circumstances, textual circumstances in which it would make perfect sense for us to explain wilfully just as you have done.

The tough thing for me here is, that sounds like a shorthand for knowingly in a statute that uses knowingly, and if we've got to make the distinction, it does not seem to me that that is a legitimate distinction, is a legitimate definition for wilfully when we've got the two of them together in the same statute.

MR. JONES: Well, what this Court's cases have explained to me in reading them is that the Court has distinguished between a knowing violation in cases like Staples and Freed, which is simply proceeding with knowledge of the facts that constitute the violation, and a wilful violation in cases like Murdock and Screws and Thurston, which is knowledge of the facts plus action with taking those acts with the bad purpose to disobey or disregard the law.

There is an additional requirement to wilfulness that's beyond knowing, but it's not, except in two exceptional circumstances, this higher level of specific proof of--

QUESTION: Mr. Jones, I'm not sure Ratzlaf is an exception, because there the violation was structuring the transaction in a way that--

MR. JONES: That's--

QUESTION: --evaded the reporting requirement, but the--my understanding of the facts was that the defendant in that case didn't even know that it was unlawful to structure the transaction. He knew about the reporting requirement, but he didn't know that evading the reporting requirement was prohibited by a criminal statute, so even that case, it seems to me, fits your general category.

MR. JONES: Yes. The peculiarity of the statute in Ratzlaf was that the statute contained as part of its substantive element this additional bad purpose to disobey or disregard the law that was the--that is the component of wilfulness, and since the statute contained both wilful, and then this language about, for the purpose of evading the law, what the Court said in Ratzlaf was, we have to give wilfully in that statute a special meaning, or it will be surplusage.

QUESTION: Well, I'm not sure it even needed a special meaning, other than the meaning you have here, because the assumption was that a person would not necessarily know that breaking up a $100,000 transaction into $10,000 components was itself prohibited, and that had to be found in order to satisfy the ordinary definition of wilfully. I mean, I don't--

MR. JONES: Especially since the statute only applied if it was with the purpose of evading the other requirement.

QUESTION: Right.

QUESTION: Are you going to talk about the ambiguity of the instructions under any test?

MR. JONES: Yes. Yes. The--first of all I want to point out that we certainly agree with Justice O'Connor that this aspect of the contention that this portion of the instruction was invalid wasn't raised or preserved below.

QUESTION: Do we have that? I mean, are we supposed to get the record on that? I mean, I imagine we'd get it and look at it, and when I go and look at the charging conference, they say when we look at the charging conference we'll discover that they did object.

MR. JONES: Petition--the charging conference is not in the record to the--whatever--

QUESTION: Well, we can get the record, can't we? We can get it.

MR. JONES: But our point is beyond that, and frankly I don't mean to stand here telling you that I am certain whether he's wrong about what he says he may have said at the charging--

QUESTION: All right. If he said that, then why doesn't he win?

MR. JONES: Because he didn't raise it in the court of appeals and he didn't raise it in this Court in the question presented.

The question presented--I mean, his point throughout this case has been, he was entitled to an additional instruction that the Government had to prove that he had a knowing violation of a known legal duty. He wanted to use the Ratzlaf, the Cheek special rule which doesn't apply in this case.

Now he's saying, well, but accepting the Government's understanding of what a wilful violation, this instruction doesn't do it. That's not a contention raised in the court of appeals nor in the question presented in this Court.

Now, is the instruction adequate to do what we think it's supposed to do?

QUESTION: Just before you get there, when the defendant proffers an instruction, which he did, and it's rejected, and the judge then gives his instructions, does he have the duty to make the further objection?

MR. JONES: He has a duty to preserve the objection for sure, and I think he should--yes, he should object to each instruction given that's inconsistent with his theory of the case, but beyond that he has to raise it in the court of appeals. He has to present it as a question for this Court to properly preserve it.

QUESTION: I was talking just about at the trial, at the trial court level.

MR. JONES: At the trial court he should object to any instruction that he thinks is improper.

Now, what he did was, certainly what the record in this Court and the court of appeals reflects is that he asked for an additional instruction, which was denied, and it was denial--the denial of that instruction that has been the focus of this case.

QUESTION: No, he--

QUESTION: It's a little hard for him to object when he's already in disagreement with the whole theory of the instruction and say, well now judge, even if you're right you're still wrong. That's a little hard--

MR. JONES: Litigants bear the burden--

QUESTION: --to do in the trial context.

MR. JONES: Well, that's precisely for the reason the court mentioned. Litigants bear the burden of focusing the court on any defects that they believe--

QUESTION: Mr. Jones, he did object on page 18 of the joint appendix--he objected, but he gave as the reason for it the failure to require specific knowledge of the license. Now, the question whether that preserves this objection is a little different than--

MR. JONES: If it hypothetically preserved the objection at that point, it has been waived by not raising it in the court of appeals or in this Court.

Now, is the instruction adequate to accomplish what the Government thinks that it should have done, and the answer to that is, as the Court knows, you have to look to the context of the entire instruction.

And that rule is especially applicable here, because the language that now defendant objects to is both preceded and followed by language that directs the jury to determine that this particular defendant acted with the bad purpose to disobey or disregard the law.

And it's also accompanied by an instruction that says, which we think is clearly correct, that the Government doesn't have to prove he had specific knowledge of the Federal licensing requirement, and to us the two sentences that follow that he didn't--that we don't have--that the defendant doesn't have to be shown to have known about the licensing requirement or to have intended to violate the law refer to that specific law, the Federal licensing requirement.

QUESTION: What about this one? It says, nor is the Government required to prove that he had knowledge that he was breaking the law.

MR. JONES: I believe that's the sentence that follows the instruction.

QUESTION: Yes.

MR. JONES: That he doesn't have to--the Government doesn't have to show that he had--

QUESTION: That's right. He's applying what he's just said to this case.

MR. JONES: Yes.

QUESTION: And he says in this case the Government is not required to prove that the defendant knew that a license is required.

MR. JONES: That's correct.

QUESTION: Nor is the Government required to prove that he had knowledge that he was breaking the law.

It's pretty hard to take the words following the nor and say they meant the same thing as the words preceding the nor.

MR. JONES: Well, in the context of this instruction which, as I said, was preceded by the clarity that you don't have to--the Government doesn't have to prove he had specific knowledge of this requirement, it's our understanding that this adequately informed the jury that the witness--that the defendant does not have to have been shown to have known that by not having a Federal license his conduct was unlawful.

And that's followed again by the instruction, but the Government does have to show that he did something--that he acted with the intent to do something that was unlawful. That is, that he acted with the bad purpose to disobey or disregard the law.

QUESTION: Are you prejudiced in any way if we were to say, take your interpretation of wilfully and then say that on--even on that interpretation the judge didn't apply it because of the language I quoted? If we thought that--

MR. JONES: It would just be the expense and delay. It would not be a fundamental prejudice, because the fundamental--

QUESTION: I mean, you've argued it, I mean. I notice the last point in your brief argues that the thing was correct.

MR. JONES: Yes. I mean, we believe that--

QUESTION: Yes. Yes.

MR. JONES: --I mean, instructions are reviewed with a certain amount of latitude for the realities of the concrete problems that the court has addressed, and especially when we don't have this objection preserved throughout the case. It seems inappropriate for the court to try to parse the instruction at this point to come up with a better one, because it's almost always possible to come up with a better one--

QUESTION: This was not urged in the court of appeals.

MR. JONES: No, sir. Nor is it within the scope of the question presented in this Court.

I would like to address a couple of arguments that weren't--that I didn't hear made--

QUESTION: Mr. Jones, do I understand that to the extent that the defendant made requests to charge and they were denied it's not necessary to say exception after that. If the request is denied, then it may be that it wasn't raised on appeal, but there's no further need to--

MR. JONES: We're not contending that he can't continue to raise the objection that he wanted the instruction that was denied. We're just saying he didn't preserve any objection to the instructions that were given.

In the brief, petitioner relies on some pre-1986 cases involving the use of the word wilfully under other provisions of the act and says that those cases reflect that courts had understood this term to talk about knowing violation of a known legal duty before Congress added the word wilfully in 1986 to section 924.

All I want to say about that argument is that the cases that they cite don't support it. In fact, the principal appellate authority that they cite, the Stein's, Inc. case, applies the longstanding rule that a wilful violation, a wilful behavior is action taken with the bad purpose to disobey or disregard the law, and cites appellate authority of its own circuit, which in turn cites this Court's opinion in Murdock.

So actually, to the extent that preexisting precedent is relevant, it supports the understanding that Congress used the term in its ordinary meaning.

QUESTION: Mr. Jones, you focus exclusively on the word wilfully, but it seems to me that in lining up all these cases you have to look at what follows wilfully, wilfully what, and it's particularly hard in this case to argue your point.

If it had said, wilfully sells a firearm without a Federal license, then I think it's much easier to say he did it with a bad purpose, with a bad intent, what-not, but it says wilfully violates--wilfully violates a provision of this chapter--

MR. JONES: But actually--

QUESTION: --and that just brings to mind, you know, knowledge that he is violating the provision of this chapter.

MR. JONES: Justice Scalia, that's the point I was addressing earlier about the Court's opinion in the International Minerals case, that the right way to read this statute is that it--that what has--what Congress has proscribed is a wilful, in this case dealing in firearms without a license, because what the statute says is, wilfully violate any other provision of this chapter.

And what Congress--I mean, what this Court said in International Minerals that phrasing means is that it's a shorthand, that it's a simplified way of essentially adding wilfully to each of those other subsections and making it a crime, and so the statute--

QUESTION: With the same--the same--the very same text?

MR. JONES: Yes. It said--the text that was involved in the International Minerals was wilfully violate any regulation, and in the Court's--and the Court said, well, that doesn't mean that they knew that it was a regulation they were violating. It means that they knew that their conduct was wilful, and so you--I'm sorry. That case--

QUESTION: Was that a statute that also had a--had knowingly--

MR. JONES: Actually, that was what I was about to correct myself. What that statute said was knowingly violate a regulation, but what the Court explained was that knowingly violate is just a shorthand way of saying, knowingly doing the acts that are elsewhere in the statute described as violations of the acts, and so--and that it was simply a shorthand.

Congress doesn't have to write for each of these criminalizations of various violations of the subchapter a separate subchapter that says, and knowingly--and knowingly dealing in firearms without a license, and knowingly doing this and knowingly doing that, or wilfully doing this.

That's the point of the International Minerals case, and Congress surely can rely on that decision in its choice of draftsmanship.

The legislative history of this statute, if it--

QUESTION: You flatter Congress to think that they had that case in mind in--

MR. JONES: Well, I certainly think--

QUESTION: --this careful drafting that they do.

MR. JONES: They're entitled--I would think that they would have that case in mind, because it's not uncommon for Congress to have this sort of provision that--about a--

QUESTION: But that's a case that doesn't have knowing, for some section, wilful for others, and so would you just clarify once more what the difference would be if this statute had read knowing instead of, as it does, wilful? You agree that wilful adds something, and I don't understand quite what that something is.

MR. JONES: A knowing violation, this Court has said in numerous cases, is acting with knowledge of the facts that constitute the violation. For example, in Staples it was acting with knowledge that this thing that the guy had was a machine gun. It doesn't mean that he had to know that it was improper for him to have such a machine gun. He just had to know that it was one.

Whereas a wilful violation would be knowing that it was a machine gun plus holding it with the bad purpose to disobey or disregard the law. That's the ordinary meaning of wilful.

QUESTION: In other words, knowing that there was some law that prohibited this.

MR. JONES: That would certainly be evidence of the bad purpose--

QUESTION: No, but what else would suffice? What else would suffice? Sure, it would be evidence. What else would--

MR. JONES: This Court has never really tried to answer that question except--

QUESTION: Well, we're trying now.

(Laughter.)

MR. JONES: No--well, maybe you are, but you've answered it only indirectly by saying, as in Spies, well clearly evidence of concealment, covering up would be sufficient.

QUESTION: Because that is circumstantial evidence that he knew what he was doing was prohibited by some law, so ultimately that gets us I think to a standard that says there's got to be knowledge with some degree of specificity that he is violating the law in doing these acts which he understands he's doing.

MR. JONES: I don't think that there has to be evidence of that. I mean, that may be where--

QUESTION: Well, that is the conclusion--

MR. JONES: --I'm having trouble--

QUESTION: --that has to be drawn. That is what the jury ultimately has to find, isn't it?

MR. JONES: Yes. The jury ultimately has to find, as they were instructed in this case, that the action was taken for the purpose of disobeying the law or disregarding it.

QUESTION: The purpose--

QUESTION: That presupposes that you know there's a law that you are disobeying or disregarding.

MR. JONES: I think that the general knowledge instruc--the general knowledge articulation given by the court of appeals in this case is directed at that.

What they're trying to describe is a sufficient knowledge. It may be of the law. It may be of some fact. It is a sufficient knowledge that it is appropriate to find that this particular defendant acted with the bad purpose of disregarding the law--

QUESTION: Why do you keep saying--

MR. JONES: --acted, as the Court said in Murdock, with unjustified indifference to it.

QUESTION: Why do you keep saying purpose, because again, if we're supposed to clarify, it seems that purpose isn't right.

I mean, the defendant here didn't want to violate the law. He would have been perfectly happy if the law had made what he did legal, I guess, or many would, so why do you--normally people wouldn't have the purpose to violate the law. They would have the knowledge that what they are doing is a violation of law, so why do we want to say purpose?

MR. JONES: One of the formulations the Court has given is, with the bad purpose or evil intent of violating the law.

QUESTION: Well, is there any reason to use--

MR. JONES: It's a blameworthiness standard. We're talking about something that's sort of like fundamental to the criminal law, that the party has done something blameworthy, and that the court has used numerous formulations to accomplish that essential goal.

And our own--and what this case is really about is whether there's any requirement that we have some extraordinary standard that applies in this particular case, and for the reasons our brief said, and that I've tried to summarize, no, the extraordinary standard isn't applicable. The ordinary standard is.

And if I can't tell you exactly what that ordinary standard is, it's because this Court has given us several different descriptions of it, and so if I were to say that only one applied, I think it would be an incomplete description, because criminal blameworthiness is maybe not something that is capable of crystalline definition.

QUESTION: Yet criminal statutes are supposed to be clear, are they not?

MR. JONES: Well, it's--I think jurors in their common experience understand what wilful behavior is, and certainly this Court has long upheld statutes that impose that as an element of the offense.

QUESTION: Are you suggesting the judge just read them wilful and not define it for them?

MR. JONES: The purpose of instructions is to assist the jury. I think that the instructions that the Court approved in Murdock and in Pomponio about bad purpose to disobey and disregard the law, it appears in form instruction manuals. I think it assists the jury.

QUESTION: No, but the question was, does he have to instruct them at all? Do you simply--

MR. JONES: Pardon me?

QUESTION: I think Justice Ginsburg's question was, is wilful sufficiently clear so that there is, in fact, no need to instruct at all? Just say, got to act willfully, period.

MR. JONES: I think some assistance is appropriate. The Court has always approved the instructions for wilfulness. I mean--

QUESTION: It's sort of like, beyond a reasonable doubt.

MR. JONES: Perhaps. I mean, I frankly--I don't know the criteria that the court applies in deciding whether to give an instruction. I've never seen that discussed. But certainly I can tell you that the court has customarily given instructions on terms like wilful.

QUESTION: But the reason you've said purpose--I'm thinking of the clarification, my impression of what you just said. Tell me, is--and I--is it if we were to abandon the word purpose, there's an--there are a large number of books there that have that word purpose in it, and that would make you--that's your reason. Is that right, basically? I mean, is that what--

MR. JONES: I don't--

QUESTION: I'm trying to pin down what's making you nervous about it.

MR. JONES: You've asked me what my reason was. I didn't have that particular reason in mind, but now that you've mentioned it I certainly think that that would be a problem.

QUESTION: Yes.

MR. JONES: It would be--the Court's treading here over decades of statutes, and it's important that we don't reinvent the wheel in a way that maybe leaves a spoke out that we need somewhere and that, frankly, I'm not in a position to describe at this point.

QUESTION: Thank you.

MR. JONES: If there are no further questions--

QUESTION: Thank you, Mr. Jones.

Mr. Adler, you have 3 minutes remaining.

MR. ADLER: Petitioner waives rebuttal time. Thank you for your time.

CHIEF JUSTICE REHNQUIST: Very well. The case is submitted.

(Whereupon, at 12:14 p.m., the case in the above-entitled matter was submitted.)