Paragraph two of 18 U.S.C. Section 1542 criminalizes the willful and knowing use of a passport secured by reason of a false statement. Long ago, in a galaxy far away, the Supreme Court held that "willfully and knowingly" in the context of paragraph two means "deliberately and with knowledge" and not a damn thing more. The case, as every schoolboy knows, is Browder v. United States. (I was discussing one of Browder's more subtle points just yesterday with my haberdasher.) In U.S. v. Aifang Ye, the Ninth Circuit dealt with the appeal of Ms. Ye, who was convicted under Section 1542, paragraph one, of willfully and knowingly making a false statement in a passport application. The Ninth Circuit held that what's good for paragraph two is good for paragraph one. And what about those pesky intervening Supreme Court decisions seeming to indicate that willfulness requires "bad purpose" and a "knowledge that the conduct was unlawful"? You know, cases like Bryan v. United States and Safeco Insurance Company of America v. Burr? Not to worry. All disposed of in footnote two of the Ninth Circuit's opinion. Since Browder "directly applies" (although it dealt with a different paragraph of a predecessor statute), its ruling controls, even if its reasoning has been rejected in subsequent Supreme Court decisions.
Tag: willfully
-
My colleague Ellen Podgor posted here about the Ninth Circuit's reversal of a securities fraud conviction on sufficiency grounds in United States v. Goyal, and specifically recommended Judge Alex Kozinski's concurrence. That concurrence led me to Judge Brett Kavanaugh's equally outstanding concurrence in United States v. Moore, 612 F.3d 698, 702-04 (D.C. Circuit 2010).
Moore involved an expansive application of 18 U.S.C. Section 1001. As explained by Judge Kavanaugh, "This case is novel: The Government has obtained a false statements conviction under 18 U.S.C. [Section] 1001 against an individual who signed the wrong name on a postal delivery form….Federal prosecutors tried Moore twice for various drug offenses, but both times the jury hung. In the second trial, prosecutors tacked on a false statements charge under [Section] 1001."
Judge Kavanaugh wrote separately to discuss the mens rea issues which can arise under the "ever-metastasizing" statute. His concurrence should be required reading for all white collar practitioners. In essence, Judge Kavanaugh argues that the Government must prove, in a Section 1001 prosecution, that the defendant knew he was violating the law. This is because Sectiuon 1001 contains a willfulness element. As Judge Kavanaugh points out, recent and not-so-recent Supreme Court pronouncements, in cases such as Bryan v. United States, 524 U.S. 184, 191-92 (1998), Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 57 n.9 (2007), and Dixon v. United States, 548 U.S. 1, 5 (2006), establish that a defendant cannot harbor willful criminal intent unless he knows in some sense that his conduct is unlawful. (The defendant need not know the specific code provision he is accused of violating, except in the case of highly technical statutes.)
There is no reason, absent some particular statutory twist, why this principle should not apply across the board to statutes containing a willfulness element. But many of the federal circuit courts take a different approach with respect to certain fraud statutes, such as Section 1001, apparently because some of their precedents predate the most recent Supreme Court holdings and dicta. Judge Kavanaugh, who once clerked for Judge Kozinski, concurred with the majority opinion in Moore, but only because the defendant did not request an appropriate jury instruction on the willfulness element. Here is Judge Brett Kavanaugh's Concurrence in U.S. v. Moore.
(wisenberg)
MattBray.net 