10. Statutory Silence

Question 1

**Federal penal law is based on ….

Answer 1

codified common law crimes, NO MPC structure

Question 2

Morissette

Answer 2

• Land used as Air Force practice bombing range, left spent casings there in heaps. Morissette went in area to hunt, salvaged 3 tons of spent casings and got $84 for them. Thought the property was abandoned (intended to take it)
• Statute - – embezzles, steals, purloins, or knowingly converts to his use…anything of value of the US
• Mistake claim- he knew he was taking those things, but believed they were abandoned and no longer property of US, didn’t think he was taking property of the US
• Question of what was the mental state required to convict him of conversion because the statute was silent as to mental state
• Assume there is a mental state unless a compelling reason not to
• 1. Look into intent of legislature
     o If it was codifying a common law crime then assume legislature intended to continue common law tradition
• 2. If not codifying a common law crime (it’s a new crime) then have to figure out what kind of new crime it is
     o Public welfare offenses/federal regulatory offense- assume legislature eliminated mental state requirement – strict liability
      Stigma is low and penalty is low
• Conclude it is version of common law crime, have to prove he knew he was taking property and knew it was the property of another

Question 3

If there is a statute that is silent as to mens rea that is a new crime that is not a public welfare crime and is not a common law crime and doesn’t have a common law history,…

Answer 3

then can assume general intent (though defense will often argue specific intent)

Question 4

If statute is silent and it is a public welfare offense..

Answer 4

strict liability (super deterrence) (usually doing something that endangers public as a whole, purpose is to deter and protect)

Question 5

US v. Dotterweich

Answer 5

president of a company that bought drugs from manufacturers and repackaged them and shipped them under a new label, strict liability for shipping adultered/misbranded drug, no requirement of awareness of wrongdoing

Question 6

US v. Park

Answer 6

company shipped food that had been contaminated by rodents, strict liability, want to punish neglect where there was a duty, positive duty to seek out and remedy violations and to implement measures that will ensure violations don’t happen
- Often use strict liability outside public welfare context – like in gun registration, statutory rape, felony murder

Question 7

US v. Freed

Answer 7

• Statute – unlawful to receive or possess a firearm which is not registered to him
• D indicted for possession of unregistered hand grenades, statute silent as to intent/knowledge that the hand grenades were unregistered. Only knowledge requirement was that possession was of a firearm
• Freed’s claim was that he thought he registered
• Said that the “not registered to him” element was strict liability
• In the interest of public safety, not surprising that it’s not an innocent act

Question 8

Staples v. US

Answer 8

• Failed to register a machine gun under same statute
• Silent as to the mental state, don’t know if defendant is required to know the facts that make his conduct illegal
• He knew it was a firearm, but didn’t know it possessed the factual characteristics that would bring it under the statute (didn’t know it had automatic firing capability)
• District court said they didn’t have to prove he knew that the weapon had every characteristic of the statute, just that he knew it was dangerous
• SC disagreed, statute required that D know the characteristics requiring classification of the weapon as a machine gun, knowledge element, know what makes his conduct illegal
• The severe penalty (10 years in prison) proved further that Congress didn’t mean to get rid of the mens rea