Affirmed by published opinion. Judge HAMILTON wrote the majority opinion, in which Judges RUSSELL, WIDENER, HALL, WILKINSON, WILKINS, NIEMEYER, LUTTIG, WILLIAMS, and MOTZ joined. Senior Judge PHILLIPS wrote a concurring and dissenting opinion, in which Chief Judge ERVIN and Judges MURNAGHAN and MICHAEL joined.
HAMILTON, Circuit Judge:
Richard Langley appeals his convictions for making a false statement to a federally-licensed firearms dealer, see 18 U.S.C. § 924(a)(1)(A), and knowingly possessing a firearm after having previously been convicted of a crime punishable by a term of imprisonment exceeding one year, see 18 U.S.C. § 922(g)(1).
In October 1991, Langley purchased two firearms from Guns Unlimited, a federally-licensed firearms dealer in Carrollton, Virginia. Prior to the sale, Langley completed Bureau of Alcohol, Tobacco and Firearms (ATF) Form 4473.
After a routine check of Langley's criminal history, Special Agent Herbert Tatem of the ATF discovered that Langley had previously been convicted of robbery in Pennsylvania, a crime punishable by a term of imprisonment exceeding one year.
On September 24, 1992, a federal grand jury sitting in the Eastern District of Virginia returned a two-count indictment charging Langley with making a false statement to a federally-licensed firearms dealer, see 18 U.S.C. § 924(a)(1)(A), and possession of a firearm after having previously been convicted of a crime punishable by a term of imprisonment exceeding one year, see 18 U.S.C.
Langley argues the district court's instructions to the jury on the § 922(g)(1) felon-in-possession count were erroneous because the jury was not instructed that the government was required to prove, beyond a reasonable doubt, that he knew: (1) he was a convicted felon, and (2) the firearm travelled in or affected interstate commerce. With respect to this count, the district court instructed the jury that it should return a verdict of guilty if it found beyond a reasonable doubt that: (1) Langley had been convicted in some court of a crime punishable by a term of imprisonment exceeding one year; (2) he thereafter voluntarily and intentionally possessed a firearm; and (3) the firearm had been shipped or transported in interstate or foreign commerce at some point during its existence. We conclude that the district court properly instructed the jury.
Section 922(g)(1), enacted as part of the Firearms Owners' Protection Act of 1986 (FOPA), Pub.L. 99-308, 100 Stat. 449 (1986), is a consolidation of portions of three former provisions of Title 18: § 922(g)(1) (unlawful for convicted felon to ship or transport a firearm in interstate commerce); § 922(h)(1) (unlawful for convicted felon to receive a firearm that has been shipped or transported in interstate commerce); and § 1202(a) (18 U.S.C.App.) (unlawful for convicted felon to receive, possess, or transport a firearm in or affecting commerce). The predecessor statutes to § 922(g)(1) contained no mens rea requirement. However, cases interpreting these predecessor statutes made clear that these statutes required proof of a mens rea element and were not strict liability offenses; that is, courts required proof that "the defendant knowingly received, transported, or possessed a firearm," but, at the same time, recognized that "the defendant's knowledge of the weapon's interstate nexus or of his felon status was irrelevant." United States v. Dancy, 861 F.2d 77, 81 (5th Cir.1988) (collecting cases); see also United States v. Santiesteban, 825 F.2d 779, 782-83 (4th Cir. 1987); United States v. Williams, 588 F.2d 92, 92-93 (4th Cir.1978).
Similar to its predecessors, § 922(g)(1) contains no mens rea requirement. Section 922(g)(1) makes it:
When Congress amended § 922 in 1986, 18 U.S.C. § 924(a), the penalty provision applicable to § 922, was also amended. See Pub.L. 99-308, § 104(a), 100 Stat. 449, 456 (1986). Pre-FOPA § 924(a) provided penalties for "[w]hoever violate[d]" any provision of Title 44, including § 922. The FOPA version of § 924(a) provided penalties for violations of Title 44 committed either "knowingly" or "willfully." Id. (codified until amended in 1988 at 18 U.S.C. § 924(a)(1)(B)-(D)). The FOPA penalty provision applicable to § 922(g) provided "whoever ... knowingly violates subsection ... (g)." In 1988, Congress amended § 924(a), increasing the term of imprisonment for, among other things, certain "knowing" violations, including violations of § 922(g). See Pub.L. 100-690, § 6462, 102 Stat. 4359, 4374 (currently codified at 18 U.S.C. § 924(a)(1) and (2)).
Langley argues that Congress' insertion of the word "knowingly" in § 924(a), as amended in 1986, mandates that the government must prove, in a § 922(g)(1) prosecution, not only that the defendant knowingly possessed, transported, shipped, or received the firearm, but also that he or she knew, at the time he or she knowingly possessed, transported,
It is firmly entrenched that Congress is presumed to enact legislation with knowledge of the law; that is with the knowledge of the interpretation that courts have given to an existing statute. See Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 267-68, 112 S.Ct. 1311, 1317-18, 117 L.Ed.2d 532 (1992); Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 325, 112 L.Ed.2d 275 (1990); Cannon v. University of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946, 1957-58, 60 L.Ed.2d 560 (1979). "Thus, it is proper to consider that Congress acts with knowledge of existing law, and that `absent a clear manifestation of contrary intent, a newly-enacted or revised statute is presumed to be harmonious with existing law and its judicial construction.'" Estate of Wood v. C.I.R., 909 F.2d 1155, 1160 (8th Cir.1990) (quoting Johnson v. First Nat'l Bank of Montevideo, 719 F.2d 270, 277 (8th Cir.1983)). Because these concepts were firmly entrenched judicially, we may assume that Congress was aware that: (1) no court prior to FOPA required the government to prove knowledge of felony status and/or interstate nexus in prosecutions under § 922(g)(1)'s predecessor statutes; (2) the only knowledge the government was required to prove in a prosecution under § 922(g)(1)'s predecessor statutes was knowledge of the possession, transportation, shipment, or receipt of the firearm; and (3) Congress created the FOPA version of § 922(g)(1) and § 924(a) consistent with these judicial interpretations. We, therefore, must determine whether, in enacting FOPA, Congress manifested a clear intent to change the well-settled law.
Prior to FOPA, many provisions regulating firearms were classified as strict liability offenses. See United States v. Collins, 957 F.2d 72, 74 (2d Cir.1992); United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988). Because liability could be imposed on law-abiding citizens for "unintentional missteps," United States v. Obiechie, 38 F.3d 309, 312 (7th Cir.1994), Congress enacted FOPA in 1986, which "added a set of mens rea requirements by amending section 924(a)(1) to punish certain violations only if they are committed `willfully' and others only if they are committed `knowingly.'" Sherbondy, 865 F.2d at 1001; see also David T. Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb. L.Rev. 585, 604-07 (1987). Though it is unusual that Congress chose to add a mens rea requirement to a penalty provision, we agree with the Sherbondy court that "it is highly likely that Congress used section 924(a) simply to avoid having to add `willful' or `knowing' into every subsection of section 922." Sherbondy, 865 F.2d at 1002.
Prior to the passage of FOPA, the scienter debate pitted the Treasury Department against the National Rifle Association (the NRA). In an effort to make prosecutions easier, the Treasury Department advocated the "knowing" standard; while the NRA, in an effort to protect gun owners, wanted the "willful" standard to govern. Hardy, supra, at 615-16. A compromise was reached: the term "knowingly" would govern the more serious firearm offenses. Id. at 615-17, 647-48; Sherbondy, 865 F.2d at 1002. Accordingly, it is fair to say that Congress, through FOPA, intended the term "knowingly" to modify each section of 922 that it applied to.
It is far from clear, however, exactly what Congress intended to modify in each section of 922 with its use of the term "knowingly." For example, it is not clear from the legislative history of FOPA whether Congress intended to extend the term "knowingly" to one or all of the substantive elements of each offense in § 922. More pertinent to this case, in the legislative history of FOPA, there is no suggestion that Congress intended to dispense with the judicial interpretation of § 922(g)(1)'s predecessor statutes. At most, the legislative history suggests that Congress intended to avoid the prosecution of "unintentional missteps," Obiechie, 38 F.3d at 312. And although an individual who possesses a firearm, unaware that it is stolen, may commit an "unintentional misstep," id., the same cannot be said for the felon (an
Our conclusion that Congress did not intend, through FOPA, to place the additional evidentiary burdens on the government suggested by Langley is supported by several other considerations. First, it is highly unlikely that Congress intended to make it easier for felons to avoid prosecution by permitting them to claim that they were unaware of their felony status and/or the firearm's interstate nexus. Second, in light of Congress' repeated efforts to fight violent crime and the commission of drug offenses, it is unlikely that Congress intended to make the application of the enhancement provision contained in § 924(e)(1)
In sum, we hold that in order to prove a violation of § 922(g)(1), the government must prove, beyond a reasonable doubt, that: (1) the defendant previously had been convicted of a crime punishable by a term of imprisonment exceeding one year; (2) the defendant knowingly possessed, transported, shipped, or received, the firearm; and (3) the possession was in or affecting commerce, because the firearm had travelled in interstate or foreign commerce at some point during its existence. Because the district court correctly instructed the jury, Langley's challenge to the jury instructions cannot be sustained.
Our holding today comports with all of the post-FOPA decisions that have, by implication, rejected the notion that the government is required to prove either knowledge of felony status or interstate nexus in a § 922(g)(1) prosecution. See United States v. Ramos, 961 F.2d 1003, 1005 (1st Cir.) (In a § 922(g)(1) prosecution, the "government need prove only the requisite predicate offense and that the defendant knowingly possessed firearms with prescribed interstate connections."), cert. denied, ___ U.S. ___, 113 S.Ct. 364, 121 L.Ed.2d 277 (1992); United States v. McNeal, 900 F.2d 119, 121 (7th Cir.1990) ("In order to prove a violation of 18 U.S.C. § 922(g)(1), the government is required to show: 1) that the defendant previously had been convicted of a felony; 2) that the defendant knowingly possessed the gun; and 3) that the possession was in or affecting interstate commerce."); United States v. Shunk, 881 F.2d 917, 921 (10th Cir.1989) (In a § 922(g)(1) prosecution, the government must prove: "(1) the defendant was convicted of a felony; (2) [t]hereafter the defendant knowingly possessed a firearm; and (3) [t]he defendant's possession of the firearm was in or affecting commerce."); Dancy, 861 F.2d at 81-82.
Furthermore, we do not believe the Supreme Court's recent decisions of United
Staples came first, and there the Supreme Court held that, in a § 5861(d) prosecution involving the possession of a machinegun without proper registration, the government must prove that the defendant knew the weapon he possessed was capable of automatic firing, thereby allowing the firearm to fall within the statutory definition of machinegun. Id. at ___, 114 S.Ct. at 1804. The statute in Staples, which criminalized the possession of a machinegun without proper registration, contained no mens rea requirement. The Court extended a mens rea requirement (knowledge) beyond that of mere possession to the nature of the weapon (its capability of automatic firing) over a concern that to hold otherwise would criminalize behavior that fell within "a long tradition of widespread lawful gun ownership by private individuals." ___ U.S. at ___-___, 114 S.Ct. at 1799-1800. In other words, the mens rea requirement was extended to all the elements necessary to avoid prosecution of conduct a reasonable person would otherwise expect to be innocent. The Court also explained that a statute's harsh penalty was a "significant consideration in determining whether the statute should be construed as dispensing with mens rea." Id. at ___, 114 S.Ct. at 1802.
In X-Citement Video, the Court held that 18 U.S.C. § 2252, which prohibits knowingly transporting, shipping, receiving, distributing, or reproducing a visual depiction, 18 U.S.C. § 2252(a)(1) and (2), if the depiction "involves the use of a minor engaging in sexually explicit conduct," 18 U.S.C. § 2252(a)(1)(A) and (2)(A), requires the government to prove both the defendant's knowledge of "the sexually explicit nature of the material and ... to the age of the performers." ___ U.S. at ___, 115 S.Ct. at 472. As in Staples, the driving force behind the Court's decision in X-Citement Video was to read the statute to avoid placing ordinary citizens at risk of criminal prosecution for "otherwise innocent conduct." Id. at ___, 115 S.Ct. at 469. Because "one would reasonably expect to be free from regulation when trafficking in sexually explicit, though not obscene, materials involving adults," the Court extended the term "knowingly" to modify the age of the performer element. Id. The Court characterized the age of the performer element as the "crucial element separating legal innocence from wrongful conduct." Id.
For three reasons, we conclude that Staples and X-Citement Video do not dictate the outcome of Langley's case. First, since this is a prosecution under a felon-in-possession statute, we see no need to apply a scienter requirement to "each of the statutory elements which criminalize otherwise innocent conduct," X-Citement Video, ___ U.S. at ___, 115 S.Ct. at 469, because the reasonable expectations of felons are wholly distinct from the reasonable expectations of ordinary citizens. In other words, an ordinary citizen "would reasonably expect to be free from regulation," id., when possessing a firearm unaware of its automatic firing capability as in Staples and when trafficking in sexually explicit, though not obscene, materials involving adults as in X-Citement Video; but the same cannot be said with respect to a felon who possesses a firearm, because a person who pleads guilty to, or is convicted by a jury of, a felony cannot, thereafter, reasonably expect to be free from regulation when possessing a firearm, notwithstanding his or her unawareness of his or her felony status or the firearm's interstate nexus. Second, the Court in Staples and X-Citement Video was not confronted with the issue of extending a mens rea requirement to a defendant's felony status or the issue of extending a mens rea requirement to an interstate nexus element. Certainly, the elements of felony status and interstate nexus are not traditionally associated with a mens rea requirement. Third, the statutes at issue in Staples and X-Citement Video did not have long-standing, firmly entrenched, uniform judicial interpretations that necessitated the application of the presumption that "Congress acts with knowledge of existing law, and that `absent a clear manifestation of contrary intent, a newly-enacted or revised statute is presumed to be harmonious with existing law and its judicial
Langley also contends that the evidence was insufficient to support his conviction on both counts. Because the evidence was sufficient to permit a rational jury to find each essential element of the crimes charged, beyond a reasonable doubt, we reject Langley's contention. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Accordingly, the judgment of the district court is affirmed.
PHILLIPS, Senior Circuit Judge, concurring and dissenting:
I concur in the judgment and in all of the majority opinion save Part II which holds that the express "knowingly" requirement now applicable to the § 922(g)(1) "felon-in-possession" offense does not require, in order to convict, proof that the accused knew at the critical time charged that he "ha[d] been convicted in any court of a crime punishable by imprisonment for a term exceeding one year,"
The discussion that follows therefore concerns only my disagreement with the majority's holding on this issue. The discussion essentially tracks that in the vacated panel majority opinion (since withdrawn from publication) which, in addressing the issue, came to the opposite conclusion.
Langley's specific contention is that the district court erred in refusing to instruct the jury that a conviction under § 922(g)(1) requires proof that the defendant knew, at the time he took possession of the firearms, both that he was a convicted felon and that the firearms had moved in interstate commerce. To address this contention in its various aspects, it is necessary to review briefly the history of the statutory language upon which it is based.
Section 922(g)(1) of Title 18, enacted as part of the Firearms Owners' Protection Act of 1986 (FOPA), Pub.L. 99-308, 100 Stat. 449 (1986), is a consolidation of portions of three earlier statutory provisions which together made it unlawful for convicted felons to ship, transport, receive, or possess firearms in interstate commerce.
Like its predecessors, § 922(g)(1) itself contains no explicit mens rea language. Instead, it provides simply that it "shall be unlawful for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or [to] possess in or affecting commerce, any firearm ...; or to receive any firearm ... which has been shipped or transported in interstate or foreign commerce." 18 U.S.C.A. § 922(g)(1) (West Supp.1994). But when Congress enacted § 922(g)(1), it also amended the basic penalty provision for all of the § 922 offenses, 18 U.S.C. § 924(a), to add the mens rea language at issue. See Pub.L. No. 99-308, § 104(a)(1), 100 Stat. 449, 456 (1986). The original version of § 924(a) had provided simply that "[w]hoever violates" any provision of Chapter 44 of Title 18, including any provision of § 922, was subject to a fine of not more than $5,000, imprisonment for not more than 5 years, or both. 18 U.S.C.A. § 924(a) (West 1976) (emphasis added). The 1986 amendment to § 924(a) replaced this broad "whoever violates" language with language providing penalties for only those violations of Chapter 44 that were committed either "knowingly" or "willfully." See Pub.L. No. 99-308, § 104(a)(1), 100 Stat. 449, 456 (1986) (codified, until amended in 1988, at 18 U.S.C. § 924(a)(1)(B)-(D)) (providing that "whoever ... knowingly violates" certain provisions of § 922, including § 922(g), or "willfully violates" any other provision of Chapter 44, is subject to a fine of not more than $5,000, imprisonment for not more than 5 years, or both). Unlike its predecessor, the 1986 version of § 924(a) did not authorize the imposition of any criminal penalties for violations of Chapter 44 that were neither "knowing" nor "willful." See id.
Against this legislative background, the parties have joined issue here on the following questions: (1) whether Congress's insertion of the "knowingly" language in amended § 924(a) makes proof that the defendant acted "knowingly" an essential element of all substantive offenses to which the § 924(a) penalties apply; and (2) if so, whether this in turn means that a conviction under § 922(g)(1) requires proof beyond a reasonable doubt not only that the defendant "knowingly" engaged in the conduct of shipping, transporting, receiving, or possessing a firearm but also that he did so with the knowledge of the facts (a) that he was a "convicted felon" and (b) that the firearm had travelled in interstate commerce.
On the first question, I agree with the majority, ante, pp. 605-606, that the insertion of the "knowingly" language in amended § 924(a) makes proof that the defendant acted "knowingly" an essential element of the substantive offenses to which the § 924(a) penalties apply, including the § 922(g)(1) offense.
First, and most fundamentally, the district court's interpretation of the mens rea language in amended § 924(a), when viewed in conjunction with the rest of the statutory scheme, as it must necessarily be, see McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991), would lead to an incongruous result that cannot have been intended. Section 922 makes it "unlawful" to do a number of different acts involving firearms, but does not itself authorize the imposition of any criminal penalties for those acts. That task is left to § 924(a), which serves as the basic penalty provision for all § 922 offenses, and to § 924(e)(1), § 924(f), and § 924(i)(1), which authorize the imposition of penalties greater than those otherwise available under § 924(a) for certain § 922 offenses.
In addition, the legislative history of FOPA, to which we may properly resort because the statutory text is ambiguous, see Ratzlaf, ___ U.S. at ___-___ & n. 18, 114 S.Ct. at 662-63 & n. 18, confirms this view. One of the most oft-voiced criticisms of the Gun Control Act of 1968 was that, as interpreted by the courts, it permitted individuals
S.Rep. No. 98-583, 98th Cong., 2d Sess. (1984), at 19-20.
This legislative history confirms what logic so strongly suggests: that Congress intended the "knowingly" and "willfully" language in amended § 924(a) to be read as imposing mens rea requirements upon all substantive offenses to which the § 924(a) penalties apply. That history is more than sufficient to overcome any implications to the contrary that might otherwise arise from its placement of that language in what is principally a penalty provision, rather than in the provisions defining the underlying substantive offenses. That Congress chose to proceed in this fashion may be thought curious, but it is not unprecedented. Cf. Ratzlaf, ___ U.S. at ___-___, 114 S.Ct. at 657-59 (interpreting mens rea language in similar generic penalty provision as adding mens rea requirement to the underlying substantive offenses, which were defined elsewhere in the same statute). Perhaps, as the Ninth Circuit has suggested, Congress chose to amend § 922's penalty provision rather than § 922 itself "simply to avoid having to add `willful' or `knowing' into every subsection of section 922." Sherbondy, 865 F.2d at 1002. Whatever the ultimate explanation, I agree that Congress intended the addition of the words "knowingly" and "willfully" in the penalty provisions of amended § 924(a) to be read as laying down mens rea requirements for all substantive offenses to which those penalties apply. Accord United States v. Hooker, 997 F.2d 67, 72 (5th Cir.1993); United States v. Collins, 957 F.2d 72, 74-75 (2d Cir.), cert. denied, 504 U.S. 944, 112 S.Ct. 2285, 119 L.Ed.2d 210 (1992); United States v. Richards, 967 F.2d 1189, 1195-96 (8th Cir.1992); Sherbondy, 865 F.2d at 1001-02.
The next question, once it has been decided that the "knowingly" language in § 924(a) makes proof that the defendant acted "knowingly" an essential element of the § 922(g)(1) substantive offense is just what exactly does it require the government to prove that the defendant knew? Does it require the government to prove beyond a reasonable doubt not only that the defendant knowingly engaged in the conduct proscribed by the statute (here, shipping, transporting, receiving, or possessing a firearm), but also that he did so with knowledge of the circumstances that made that conduct a federal crime (here, either or both that he had been previously convicted of a felony and that the firearm had travelled in interstate commerce)? Or does the knowledge requirement run only to the prohibited conduct, so that a conviction under § 922(g)(1) requires proof only that the defendant "knowingly" engaged in the conduct of shipping, transporting, receiving, or possessing a firearm, and not that he did so with knowledge either of the fact that he was a convicted felon or that the firearm had travelled in interstate commerce?
The interpretive path here is clearly marked. To resolve this particular ambiguity concerning the intended reach of an express (or implied) mens rea requirement, we have a powerful primary canon of statutory construction. Long ago established by the Supreme court, essentially in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), rigorously applied in the interval in Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) and United States v. United States Gypsum Co., 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978), and most recently reaffirmed in United States v. X-Citement Video, Inc., ___ U.S. ___, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) and Staples v. United States, ___ U.S. ___, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), it is the presumption that, unless statutory language or legislative history evinces a contrary intent, a nonspecific mens rea requirement was intended by Congress to run to "each of the statutory elements which criminalize otherwise innocent behavior." X-Citement Video, ___ U.S. at ___, 115 S.Ct. at 469.
As applied by the Supreme Court, this interpretive presumption prevails unless "some indication of congressional intent, express or implied," to the contrary can be found. See Staples, ___ U.S. at ___, 114 S.Ct. at 1797. And when the Court has sought such a contrary indication, it has not been willing to find it either in congressional silence on the particular element at issue, see id., or in ultimate ambiguity of statutory text or legislative history. See X-Citement Video, ___ U.S. at ___-___, 115 S.Ct. at 471-72. And, on the other hand, the Court has found the presumption reinforced where violations of the statute could result in particularly "harsh penalties." See Staples, ___ U.S. at ___, 114 S.Ct. at 1802 ("up to 10 years' imprisonment"); X-Citement Video, ___ U.S. at ___, 115 S.Ct. at 469 ("up to 10 years in prison as well as substantial fines and forfeiture").
Applying those principles here, I am satisfied that the presumption should prevail to require proof under § 922(g)(1) that the defendant knew that he had been "convicted of a crime punishable by imprisonment for a term exceeding one year." The text of the statute contains no express or implicit indication that the "knowingly" requirement was not intended to apply to this particular element, which surely constitutes a fact or circumstance upon which the criminality of otherwise innocent conduct turns. Neither, as will be discussed, does the legislative history contain any express or implicit indication of such a contrary intent. Finally, the statute(s) here at issue now, under the 1988 amendments to FOPA, expose violators to the same range of potentially harsh sentences — including up to 10 years imprisonment — as did those being construed in Staples and X-Citement Video. See 18 U.S.C. § 924(a)(2).
Only one of these propositions needs extended discussion: whether the relevant legislative history contains any sufficiently clear indication of an intention by Congress that the "knowingly" requirement should not apply to the defendant's "felony" status to overcome the Morissette presumption that it was intended so to apply.
It is important in making that inquiry to emphasize that it does not proceed as if the interpretive scales were in balance at the outset (as ordinarily they are in legislative history inquiries). As graphically illustrated in the Supreme Court's most recent applications in Staples and X-Citement Video, the inquiry is specifically one for clear indication of an intent contrary to that presumed. It is not, as ordinarily, a search for intent on a clean slate and as if the ingoing range of choices were of equal weight.
Perhaps the best way to demonstrate this negative fact is to start with the portion of legislative history upon which the Government has mainly relied as demonstrating an intent by Congress to confine the scienter requirement to the core conduct elements of § 922(g)(1). That is a passage from the committee report attached to the bill that ultimately became FOPA.
H.R.Rep. No. 495, 99th Cong., 2d Sess. 25-26, reprinted in 1986 U.S.C.C.A.N. 1327, 1351-52.
The argument is that this passage clearly evinces congressional intent simply to codify pre-FOPA decisional law in which the lower federal courts consistently had interpreted § 922(g)(1)'s predecessor statutes as not requiring knowledge of "felony" status. The passage simply will not bear that weight, however, for two principal reasons.
In the first place, it was not prepared to support the version of FOPA that was actually enacted, but to support a rival version that was not enacted — a version which differed from the enacted version in several important respects. See supra n. 12. Most critically, the version for which that report was prepared and which was sponsored by members generally hostile to efforts to increase the mens rea requirements for Gun Control Act offenses, would have added "knowingly" language that by its terms seemed literally applicable only to the prohibited conduct. See H.R. 4332, § 8(2), 132 Cong. Rec. H1673
In the second place, even if the passage were somehow relevant to the intended meaning of the enacted version of § 922(g)(1), its significance on the point at issue is by no means clear. There is in that same report language strongly suggesting that the knowledge requirement all along was intended to apply to all facts necessary to make the defendant's conduct illegal, as would normally be the case at common law. See H.R.Rep. No. 495, supra, at 1351-52 & n. 17 ("It is the Committee's intent that unless otherwise specified, the knowing state of mind shall apply to circumstances and results.") (emphasis added); id. at 1352 n. 18 (equating the term "knowingly" with "the concept of general intent") and n. 21 (defining "general intent" as "intentionally adopt[ing] certain conduct in circumstances known to [the defendant], where "that conduct is forbidden by the law under the circumstances") (emphasis added).
Aside from this one passage of legislative history, whose actual relevance and substantive significance even if somehow relevant are demonstrably lacking, there is nothing else in the legislative history from which any specific intent to limit the reach of the "knowingly" requirement in any particular way can be found. The Government cites no such indication, nor does the majority, who indeed claim no such force for the one passage cited.
Rather than pointing to any specific indication in the legislative history, the majority relies (exclusively I think it fair to say) on a counter-presumption always implicit in the legislative process: the presumption that Congress legislates "with knowledge of existing law, and that `absent a clear manifestation of contrary intent, a newly-enacted or revised statute is presumed to be harmonious with existing law and its judicial construction.'" Ante at 605 (quoting Estate of Wood v. C.I.R., 909 F.2d 1155, 1160 (8th Cir.1990)). Applying this presumption, the majority then emphasizes the fact that the pre-FOPA circuit court decisions interpreting "felon-in-possession" predecessors to §§ 922(g)(1) and 924(a)(2) uniformly had held that they did not require proof of knowledge of the defendant's "felon" status. Hence, the argument goes, because the legislative history reveals no "clear manifestation of contrary intent," that presumption prevails here.
There is no questioning the existence of this "harmonious-with-judicial-interpretations" presumption, and that it must be reckoned with here. See, e.g., Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268-69, 112 S.Ct. 1311, 1317-18, 117 L.Ed.2d 532 (1992). Nor can it be questioned that the lower court decisions that had addressed this particular interpretive issue in application of predecessor statutes had indeed uniformly interpreted them in the way asserted. But, the presumption should not prevail here, for the following reasons.
First, its force cannot properly be considered, as does the majority, independently of the Morissette presumption. After all, as the Supreme Court has specifically noted, that presumption is itself part of the "law" whose existence Congress is presumed to know when it legislates. See United States v. Gypsum, 438 U.S. at 436-37, 98 S.Ct. at 2873-74 (Congress is "presumed to have legislated against the background of our traditional legal concepts" among which is the concept that "[t]he existence of a mens rea is the rule rather than the exception") (internal quotations omitted).
How, then, should the two interpretive presumptions operate when, as here, they may point in opposite directions? The answer
First off, the enactments at issue here do not employ the same or similar language as that which was the subject of the pre-FOPA judicial interpretations on the precise matter at issue. The critical provision we construe contains an express mens rea requirement, "knowingly," that was not found in the provisions subject to those earlier interpretations. We might have a clear case for applying the presumption (even over the Morissette presumption) had the predecessor statutes also contained a "knowingly" requirement of imprecise reach. But we do not have that.
Furthermore, as has been demonstrated, see supra at 606-608, it is clear from the legislative history that the primary motivation for adding any express mens rea requirements to the FOPA provisions at issue here was to increase the safeguards against convictions for inadvertent, or careless conduct. That is to say, the general legislative intent indisputably was to move in the direction of extending rather than retracting or leaving in place existing mens rea requirements as judicially interpreted. That general congressional purpose clearly is more in line with the broad-reach Morissette presumption than with the contrary presumption to which the majority gives primacy.
In summary, I simply do not see any principled basis for distinguishing between knowledge on the one hand that property converted was that of the United States, or that one's possession of food stamps was unauthorized, or that a gun possessed was a machine gun, or that a person depicted in a film or photograph was a minor, and knowledge on the other hand that one had been convicted of a crime carrying certain punishment. If the common law presumption recognized and rigorously applied in Morissette and its progeny compelled the conclusion that a statute's imprecisely expressed (or merely implicit) mens rea requirement ran to each of the criminalizing circumstances in the former set, I do not see why it does not compel the same conclusion with respect to the circumstance here at issue. Nothing of which I am aware says that for some reason the presumption does not apply here at all. Nothing intrinsic in the various qualifying circumstances suggests why that might be so. It cannot be because the circumstance of prior conviction is any less one upon which the criminality of otherwise innocent conduct (possession, etc. of a firearm) turns than were those in Morissette, Liparota, Staples and X-Citement Video. It cannot be because proving knowledge of a prior conviction is inherently more difficult (or less difficult) than proving knowledge of who owned converted property, or whether particular possession was unauthorized, or whether a gun was of a special type, or a person depicted, a minor. The only generic distinction of any kind that I can see between the circumstance here at issue and all the others is that this one pertains to an episode in the defendant's life-history whereas all the others pertain to circumstances related to an object of the crime. This could not be a principled basis for different application of the presumption. Cf. United States v. Ballentine, 4 F.3d 504, 506 (7th Cir.1993) (in prosecution under § 922(g)(2) for possession, etc. of a firearm "by fugitive from justice," government must prove defendant's knowledge of facts that create fugitive status).
None of what has been said to this point, however, compels the conclusion that to convict under § 922(g)(1), the government must prove the defendant's knowledge that the firearms had travelled in interstate commerce. The fact of prior conviction is a substantive element of the crime; the fact of interstate travel is jurisdictional only. See United States v. Yermian, 468 U.S. 63, 6874, 104 S.Ct. 2936, 2939-42, 82 L.Ed.2d 53 (1984) (comparable provisions in false-statement statute exists "solely to limit the reach of the ... statute to matters of federal interest").
Because I would hold that a defendant's knowledge of his prior "felony" conviction is an essential substantive element of the § 922(g)(1) offense, I would of course then hold that the district court's contrary instruction here was a constitutional error. Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991). That being so, the conviction should be vacated unless the error could be held to be harmless beyond a reasonable doubt. United States v. Collins, 957 F.2d 72, 75 (2d Cir.1992).
Under the particular facts of this case, I would find the error to be harmless. The same jury that convicted Langley on the § 922(g)(1) count also found him guilty on a § 924(a)(1)(A) false-statement count based on the same exact sales transaction. The district court specifically instructed the jury that it could convict on the § 924(a)(1)(A) count only if it found, beyond a reasonable doubt, that Langley knew of his prior felony conviction at the time he made the representations in the ATF Form 4473, which he filled out immediately before taking possession of the firearms. Accordingly, the jury's finding of guilt on the § 924(a)(1)(A) count necessarily included a finding that Langley had the knowledge of his prior felony conviction required to support a conviction under the interpretation of § 922(g)(1) that I would adopt. If that finding was supported by the evidence, the § 922(g)(1) conviction must be affirmed despite the error in the instructions on mens rea. See Collins, 957 F.2d at 75-77 (though district court erred in instructing jury that it need not find that defendant acted with a certain state of mind in order to convict him of the particular violation of 18 U.S.C. § 922 charged, that error was harmless, because jury's verdict of guilty on another closely-related count necessarily reflected a finding that he had acted with that state-of-mind); cf. United States v. Minnick, 949 F.2d 8, 10 (1st Cir.1991) (district court's failure to charge jury that conviction under amended § 922(g)(1) required proof that defendant knew he had been convicted of a crime punishable by imprisonment for a term exceeding one year, even if error, was harmless, because evidence adduced at trial established beyond a reasonable doubt that he did in fact act with such knowledge), cert. denied, 503 U.S. 995, 112 S.Ct. 1698, 118 L.Ed.2d 408 (1992). Because I agree with the majority that the evidence was sufficient to convict Langley on the § 924(a)(1)(A) false-statement count with its necessary finding of knowledge of his prior felony conviction, I would affirm his conviction on the § 922(g)(1) count despite the constitutional error in the instruction on that count.
Chief Judge ERVIN, Judge MURNAGHAN and Judge MICHAEL join in this concurring and dissenting opinion.
The first three versions of FOPA would have amended § 924(a) to insert "willfully" before "violates" in the general penalty provision. See H.R. 5225, supra, § 104(a); S. 1862, supra, § 104(a); H.R. 3300, supra, § 104(a); S. 1030, supra, § 104(a); H.R. 2420, supra, § 104(a); S. 914, supra, § 104(a). But the Treasury Department and others objected to this "willfully" language on the ground that it could be interpreted to make intent to violate the law an essential element of all Chapter 44 offenses, which was thought to make it difficult, if not impossible, to successfully prosecute any Chapter 44 case. See S.Rep. No. 583, 98th Cong., 2d Sess. (1985) (to accompany S. 914), at 20. To redress this concern, the version of FOPA that was reported out of the Senate Judiciary Committee in the 98th Congress bifurcated § 924(a)'s general penalty clause to make its penalties available for those violations of Chapter 44 that were deemed to be the most serious — including violations of § 922(g) — upon proof that they had been committed "knowingly," while making them available for all other violations of Chapter 44 only upon proof that they had been committed "willfully." See id. at 20-21. This "knowingly/willfully" dichotomy was carried forward in the version of FOPA that ultimately passed both houses and became law in 1986. See H.R. 4332, 99th Cong., 2d Sess. § 104(a), 132 Cong. Rec. H1756 (daily ed. Apr. 10, 1986). See generally Hardy, supra, at 615-16, 648.
S.Rep. No. 476, 97th Cong., 2d Sess. (1983), at 22.
While the presumption does not apply to an uncertain category of "public welfare" or "regulatory" offenses, see Staples, ___ U.S. at ___-___, 114 S.Ct. at 1797-98 (referencing, inter alia, United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922)), Staples squarely holds that firearms offenses of the type here in issue are not in that category, notwithstanding any contrary implications that some courts may have drawn, see note 3, supra, from United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). Staples, ___ U.S. at ___-___, 114 S.Ct. at 1798-1804.
Significantly, at least two other post-FOPA circuit decisions interpreting analogous provisions of § 922 have squarely held, as would I, that § 924(a)(2)'s "knowingly" requirement applies not only to the core conduct proscribed by those provisions but to qualifying facts and circumstances that make the conduct criminal. See United States v. Hooker, 997 F.2d 67, 72 (5th Cir.1993) (in prosecution under § 922(k), which proscribes possession or receipt of firearm whose serial number has been removed, or altered, government must prove knowledge of removal or alteration); United States v. Ballentine, 4 F.3d 504, 506 (7th Cir.1993) (in prosecution under § 922(g)(2) which proscribes possession, shipping, receiving, etc. of firearm by fugitive from justice, government must prove knowledge of facts that made defendant a fugitive, though not that they made him legally a "fugitive").