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United States v. O'Neal

United States District Court, D. Colorado

February 22, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
1. KATHERINE O'NEAL, Defendant.

          ILLEGAL EXPORT ELEMENTS INSTRUCTION

          William J. Martinez United States District Judge

         The parties requested a pretrial ruling on the jury instruction that will be given for Count 1, unlicensed export of firearms in violation of 18 U.S.C. § 554(a). That statute reads as follows:

Whoever fraudulently or knowingly exports or sends from the United States, or attempts to export or send from the United States, any merchandise, article, or object contrary to any law or regulation of the United States, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise, article or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States, shall be fined under this title, imprisoned not more than 10 years, or both.

         The parties' major dispute is whether the word “knowingly” in the first clause requires the Government to prove that Defendant Katherine O'Neal knew she was acting contrary to law (O'Neal's position), or only that she was taking firearms outside the United States (the Government's position). (See ECF Nos. 79, 80, 91, 95, 99, 102.)

         The Supreme Court has established a default presumption regarding the meaning of “knowingly” in criminal statutes. “[U]nless the text of the statute dictates a different result, ‘knowingly' merely requires proof of knowledge of the facts that constitute the offense.” Bryan v. United States, 524 U.S. 184, 193 (1998) (footnote omitted). Thus, for example, one who “knowingly” possesses an unregistered machine-gun only needs to know that the firearm includes characteristics that happen to bring it within the statutory definition of a machine-gun; he does not need to know that possessing an unregistered machine-gun is illegal. Id. This is in contrast to “willfully, ” which normally requires the Government to prove that the defendant acted “with knowledge that his conduct was unlawful.” Id.

         These principles, in isolation, appear to support the Government's position. This is best shown by repeating the statutory text, but also inserting line breaks for clarity:

Whoever fraudulently or knowingly exports or sends from the United States, or attempts to export or send from the United States, any merchandise, article, or object contrary to any law or regulation of the United States, or
receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise, article or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States,
shall be fined under this title, imprisoned not more than 10 years, or both.

18 U.S.C. § 554(a) (emphasis added). As formatted, it becomes clear that the statute encompasses two offenses: (1) the exportation itself (“Export Clause”), and (2) acquisition of goods intended for exportation (“Acquisition Clause”). See United States v. Chi Tong Kuok, 671 F.3d 931, 944 (9th Cir. 2012) (“The emphasized ‘or' above divides this statute into two clauses: the first applying to exporters, and the second to buyers.”).

         The Acquisition Clause explicitly requires a defendant to act while “knowing” that the acquired goods are “intended for exportation contrary to any law or regulation of the United States.” This is close to what the Supreme Court in Bryan calls a “willful” state of mind, 524 U.S. at 193, although it does not require the defendant to know that his or her own conduct is unlawful, only that someone else intends to deal with the goods unlawfully-a distinction that will become important below. In any event, the Export Clause contains no similar qualifying language about knowledge of illegality. Thus, one could reasonably argue that the default definition of “knowingly” applies to the Export Clause.

         Other authority, however, casts doubt on such a construction of the statute. This authority construes a very similar statute regarding illegal importation, 18 U.S.C. § 545.

         The similarities between the statutes can be seen by arranging the text of § 554(a) and § 545 side-by-side:

Export Statute (18 U.S.C. § 554(a))

Import Statute (18 U.S.C. § 545, second paragraph)

Whoever fraudulently or knowingly exports or sends from the United States, or attempts to export or send from the United States, any merchandise, article, or object contrary to any law or regulation of the United States,

Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law,

or,

or,

receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise, article or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States,

receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law-

shall be fined under this title, imprisoned not more than 10 years, or both.

Shall be fined under this title or imprisoned not more than 20

         Like the export statute, the import statute has two main clauses: (1) the importation itself (“Import Clause”), and (2) ...


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