Supreme Court struggles with nuances of mens rea

By Rory K. Little

"Even a dog," Justice Oliver Wendell Holmes famously wrote, "distinguishes between being stumbled over and being kicked." That is, we generally desire to visit harsh criminal consequences on intentional bad actors, and not on the reasonable or accidentally negligent. Issues of mens rea - what constitutes a "guilty mind" and how to define with precision the states of mind that ought to result in criminal conviction - have always troubled the criminal law.

This term, the U.S. Supreme Court is struggling with some nuances of mens rea as expressed (or not expressed) in federal criminal statutes. One case, Rosemond, has already been decided, and is raising concerns among jury-instruction writers across the country. Another decision, Loughrin, should be coming soon. Both cases arise from the language of specialized federal statutes, so that the justices need not trouble themselves much with reciting foundational "black letter" legal concepts.

Rosemond v. United States, No. 12-895 (March 5, 2014), involved a very specific statute and factual situation. Section 924(c) of federal Title 18 automatically imposes a consecutive five-year imprisonment term on anyone who "uses or carries" a firearm "during and in relation to" a drug trafficking offense (in addition to the sentence they receive for drug trafficking itself). Meanwhile, Section 2 allows as a general matter the conviction of anyone who "aids" in the commission of any federal offense. This is the common-law principle known as "aiding and abetting" liability.

Rosemond was undeniably and knowingly engaging in a drug trafficking offense with two others. But when the transaction went awry, someone in Rosemond's group pulled out a gun and started firing. Because the identity of the shooter was disputed, the prosecution invoked Section 2's "aiding and abetting" function to convict Rosemond of the 924(c) crime, even if Rosemond neither carried nor used the gun. According to the prosecution, Rosemond knew, once he saw his partner pull out a gun, that his partner was carrying it and was going to use it. Because Rosemond didn't stop that conduct or withdraw from the effort, he should be guilty for aiding the gun crime.

The question of whether knowledge alone is sufficient to convict someone of helping another's crime, or whether the helper must have a more specific "purpose" to assist the crime, has troubled courts for decades. The Model Penal Code - progressively published in 1963 but today a bit dated - adopts a "purpose" requirement (MPC 2.06(3)(a)). But many states (including California), and Congress, have never adopted the MPC. The justices did not expressly discuss this fine distinction in Rosemond (they did advert to it in two footnotes, which Justice Antonin Scalia silently declined to join). Instead they merely used the unsatisfying and unspecific term "intent."

But to Rosemond's benefit, the court added something to the aiding-and-abetting mix. Justice Elena Kagan wrote for seven justices that to be guilty as a 924(c) aider and abetter, Rosemond had to have "advance knowledge" that his compatriot was carrying or would use a gun, "mean[ing] knowledge at a time [he] can do something with it - most notably, opt to walk away." This nuanced mens rea distinction is not found in the statutes' texts. But Rosemond's 924(c) conviction was vacated and his case remanded for further proceedings.

Justice Samuel Alito's dissent called this idea of "advance knowledge" an "unprecedented alteration of the law of aiding and abetting." He may be right - I know of at least one federal jury instruction committee that is struggling with how to redraft the 924(c) instructions in Rosemond's wake. However, the "common law" generally lacks definition or authoritative principles, no matter what "black letter" treatise writers may claim. So "unprecedented" is too strong. Certainly cases invoking an equitable notion similar to the Rosemond court's can be found. That is, as Kagan explained, a person ought not be criminally convicted unless he or she makes a "relevant legal, and indeed moral, choice" - that is, unless he chooses to continue aiding a crime after gaining knowledge that the crime is happening. Moral notions of blame, "just desserts," and moral choice lie (or should lie) at the heart of all criminal law doctrine. To revive Holmes, if Rosemond merely "stumbled over" the gun, rather than actively deciding to assist its use, then the harsh consequences of criminal conviction are undeserved. Even a dog, or 12 commonsense jurors, can distinguish that.

In Loughrin v. United States, No. 13-216, (argued April 1), the mens rea issues are also ones of non-textual nuance, wrapped up in legislative intent and statutory "plain meaning." The federal bank fraud statute, 18 U.S.C. Section 1344, provides for up to 30 years in prison for anyone who "knowingly executes, or attempts to execute, a scheme or artifice ... (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises."

Loughrin was convicted under this clause, and the question presented in Loughrin is whether Section 1344(2) criminalizes any fraudulent scheme, even a simple bad check written to a private party, just because at some point "moneys ... under the custody or control" of a bank might go out the door. In other words, does the actor have to intend to defraud a bank or must he intend merely to defraud someone - anyone - where the check-writing scheme, even unbeknown to him, might involve bank moneys?

You might wonder how such a distinction could make a difference. Here's how: Loughrin's unsophisticated scheme - he would steal checks from people's mailboxes, alter the payee, forge the account holder's signature if necessary, and use the altered checks to buy merchandise at the retailer - undeniably defrauded a retailer, but not a bank. Yet 1344(2) does not mention any intent to defraud "a bank." Should it be implied?

You also might think that, under the statute's plain language, Loughrin's intentions (or lack thereof) about a bank would be irrelevant. Loughrin (unsuccessfully) argued at trial that the government should have to prove that he intended "to defraud a financial institution" or, alternatively, to cause "financial loss" to a bank. On appeal, the 10th U.S. Circuit Court of Appeals noted that neither requested instruction had a source in the statute's "plain language," and ruled that a 1344 violation requires merely "an intent to defraud someone" so long as "money from a bank" might ultimately be affected.

However, one rule of statutory construction is to not interpret a statute to encompass "absurd" results. The Supreme Court granted certiorari because other circuits have ruled that Loughrin's requested limitations must be implied in the statute - otherwise, every bad or bounced check could lead to federal prosecution. Such a result would produce an absurd "over-federalization" of crime, taking small and local crimes away from state authorities, which Congress surely did not intend. Or, as Justice Anthony Kennedy incredulously asked the government's lawyer at oral argument, "so you have federalized every fraudulent transaction in the economy whenever a check is involved?" "Absolutely," Scalia interjected, before the assistant solicitor general could even respond. As Scalia summarized, an unnuanced reading would "extend federal law enormously."

It appears likely that the Loughrin court will read non-textual limitations related to the specifics of a defendant's mens rea into Section 1344. Similarly, the court found a fair, if nuanced, a textual limitation on an aider-and-abettor's mens rea in Rosemond - a limitation the dissenters found "quite wrong" and "break[ing] with common-law tradition."

Oh if only the common law, let alone statutes, were as clear as the justices wish.

But teaching simplicity in the law is misleading artifice. The reality of law, lawyers and courts is that reasonable minds can and often do disagree, and tiny factual distinctions can make all the difference in the world. Thus when it comes to mens rea, dogs may be better at it than we are. Or, more charitably, perhaps it is the severe consequences that attach to criminal conviction that encourage us to struggle with nuanced distinctions that can lead to the "moral" (as Kagan put it in Rosemond) result. The Supreme Court's decisions this term will expose just a tiny tip of the mens rea iceberg - but good for them for trying.

Rory K. Little is a professor of law at UC Hastings College of the Law in San Francisco, and has practiced criminal law on all sides of the fence for longer than most dogs live. Portions of the foregoing appeared in his postings on Rosemond and Loughrin for SCOTUSblog.com and he thanks the editors for their permission. Littler@uchastings.edu; @RoryLittle.

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