United States v. International Minerals & Chemical Corporation

PETITIONER:United States
RESPONDENT:International Minerals & Chemical Corporation
LOCATION:Charlotte-Mecklenburg School District

DOCKET NO.: 557
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 402 US 558 (1971)
ARGUED: Apr 26, 1971
DECIDED: Jun 01, 1971

Facts of the case

Question

Audio Transcription for Oral Argument – April 26, 1971 in United States v. International Minerals & Chemical Corporation

Warren E. Burger:

We will hear argument next in number 557, United States against International Minerals and Chemicals Corporation.

Mr. Dienelt, you may proceed whenever you’re ready.

John F. Dienelt:

Mr. Chief Justice and may it please the Court.

This case is here on direct appeal from the District Court for the Southern District of Ohio.

The District Court dismissed the five-count information alleging violations of Section 834 of Title 18 which deals with the transportation of explosives and other dangerous substances.

Section 834 which we have set forth in part on page 3 of our brief provides that “whoever knowingly violates regulations formulated for the safe transportation of hazardous materials shall be fined up to $1,000.00 or imprisoned not more than a year.”

The information in this case charge the appellee which is a corporation engaged primarily in the manufacturing and shipping of chemicals and fertilizers with violations of a regulation, which we’ve also set forth on page 3, dealing with the contents of shipping papers.

The regulation requires that the shipper state on a shipping paper designated names and classifications of substances which he is shipping.

In this case, for example the shipper was shipping sulfuric acid and the regulations required him to state sulfuric acid on the shipping paper which is the name and corrosive liquid, which is the classification.

And this safety requirement serves essentially two purposes.

First, it indicates to the carrier what kind of labels he should put on the packages and what kind of placards he should put on his truck.

And secondly, the shipping paper itself which is kept in cab of the truck with the driver enables the driver or anybody else who might be involved in an emergency such as an accident or a fire to quickly identify what the substance is and to take whatever appropriate steps such clearing an area might be necessary.

The five counts in this information each alleged similar conduct.

Three of them alleged a knowing failure to state the required classification and as corrosive liquid on the shipping papers.

And two, alleged knowing failure to state both the required classification and the required name of the substance being shipped.

The District Court granted the appellee’s motion to dismiss this information on the ground that it did not state an essential element of the offense and that essential element in the Court’s language was knowledge of violating the regulation.

As we read that ruling, the District Court held that the Government has to allege and prove not only that the appellee knew it was shipping a dangerous article without stating its proper name and classification on the shipping papers, which we alleged in the information but also that it knew the terms of the regulation forbidding that conduct and specifically intended to violate that regulation or as the District Court put it, an added ingredient of consciousness that it’s illegal not to do the act.

So, the question in this case —

Potter Stewart:

Mr. Dienelt, who was the District Judge in this case?

There’s no such Judge name Pate, as appears on page 8 in the transcript —

John F. Dienelt:

Well, —

Potter Stewart:

Is that Judge Porter?

John F. Dienelt:

Yes, he was Your Honor.

Potter Stewart:

Well, I thought —

John F. Dienelt:

I gather it was, I didn’t know.

The question in the case then is the simple one and it’s whether a defendant can be convicted under this statute for intentionally engaging in conduct that is prohibited even though he doesn’t know that the law prohibits it.

We believe that a shipper or carrier can be convicted under these circumstances.

Our position is simply that proof of knowledge of pertinent the facts is what is essential and proof of knowledge of law is not that the defendant is presumed to know the regulations governing transportation of dangerous articles.

Now, he’s charge with that knowledge under the fundamental principle that ignorance of the law does not excuse its violations by one who intentionally engages in conduct which the law forbids.

Charging shippers and carriers of dangerous substances with knowledge of regulations regarding their transport seems to be a perfectly reasonable thing to do.

John F. Dienelt:

In the first place, the substances are dangerous and that alone ought to signal, the possibility of existence of a regulatory scheme regarding the transportation.

So this case in that sense is similar to United States against Freed which this Court decided this month.

And in that case, the Court ruled that specific intent for knowledge that gun were unregistered was an essential element of the crime of possession of an unregistered firearm.

In effect, that the rule that the individual could be presumed to know or charged with knowledge of the registration requirement.

In this case and in numerous regulatory areas, there’s another factor which makes it particularly appropriate to charge the people engaged in forbidden conduct with knowledge of the regulations and that is that this appellee and most of the people who are brought under a prosecution under this statute are in the business of shipping dangerous substances.

So, our fundamental position is that there is no basis in this case for making an exception to the principle that ignorance of the law is no excuse.

We’d like to emphasize three points in that connection.

I would like to discuss the language of the statute, the effect of this Court’s decision in Boyce Motor Lines against the United States, some 20 years ago in 342 U.S., and the history of the statute.

The first point deals with the language, the statute says, “knowingly violates regulations.”

This is a typical regulatory pattern in numerous areas where Congress simply can’t fill out the details of the statute.

It sets forth the general prohibition and leaves to the administrative agency the responsibility for filling in the details and designating the specific conduct that’s forbidden.

And this language “knowingly violates regulations” is standard terminology.

It’s used in numerous statutes we’ve cited, some of them in Footnote 7 of our brief at page 13.

We submit that if Congress in these various regulatory areas had set forth the prohibited conduct in the statute itself, there wouldn’t be any question but that the Government’s only obligation would be to prove knowledge of the facts and not knowledge of the law.

For example, in this case, the Congress had written a statute that says, “Whoever knowingly ships sulfuric acid without stating on the shipping papers that it is sulfuric acid and that it is a corrosive liquid shall be punished.”

We submit in that situation there wouldn’t be any question that our burden of proof would be what we’ve alleged in the information here, knowing conduct.

Similarly, if Congress had written as is it would have had to in a regulatory statute or as it likely would and as it has in cases where it has set forth conduct that is prohibited in the statute itself, set forth a number of different kinds of conduct and then had one provision that says, “whoever knowingly violates the statute or the statutory provisions shall be punished.”

We submit the same result would obtain that we would have to prove knowledge of the facts and not knowledge of the law.

We don’t think the results shall be any different because Congress has adopted a convenient shorthand in this case as a means of delegating responsibility to the administrative agency.

In this case, the Department of Transportation and for incorporating all the various prohibitions that are involved.

We realize it’s possible to read the language “knowingly violate regulations” to suggest that you have to know what the regulation is.

But we think that the position which evidently is the appellee’s position and which was the position stated in a concurring opinion by Judge Magruder in the St. Johnsbury Trucking case which was a leading early Court of Appeals decision on this matter, that the use of that language justifies a distinction

.We don’t believe that that’s a proper reading.

It places too much emphasis in the abstract or the semantics.

It ignores the practical reality which we feel make it perfectly clear that the use of the phrase “knowingly violates regulations” in this case is simply a shorthand.

In fact, there are some cases in which Congress has on a rare occasion indicated that an ignorance of a regulation or a lack of knowledge of a regulation will be an excuse.

It will be an affirmative defense and it stated that quite plainly in the statute in language quite different from the language here which decided two similar cases in footnote 11 of our brief on page 16.

Now, turning specifically to the judicial and legislative consideration of the statute, our second point is that this Court’s decision in the Boyce case should involve the same statute.

It does not require the Government to prove knowledge of the regulations.

The Boyce decision didn’t hold that, it really didn’t reach that issue.

John F. Dienelt:

It didn’t specifically address itself to it.

The Court there assumed as did the parties that the shipper, it was a carrier on that case, knew the regulations and proceeded to examine factual circumstances not the question of knowledge of the law.

The issue in Boyce was whether a regulation was vague and the regulation involved dealt with the routing of trucks through congested areas and it required that the trucks be routed this so far as practicable, that was the key language in that case as far as the vagueness is concerned, as far as practicable to avoid congested areas such as towns and the defendant in that case had routed its trucks to the Holland Town in New York.

The District Court dismissed the case with rather three counts of an indictment there, on ground that it was unconstitutionally vague.

The Court of Appeals reversed and this Court affirmed.

And in affirming the decision, this Court indicated that the fact that the defendant was required “knowingly” to violate the regulations was crucial and it stated what it meant by that requirement, in a passage that we’ve set forth on page 10 of our brief.

It said the Government must prove not only that there was in fact a preferable route but also that the defendant knew of such route and nevertheless took a more dangerous one.

Or alternatively that the defendant willfully neglected to inquire whether there was such a route.

The comparable requirement to that proof in this case, we submit is that not only did the defendant shipped a dangerous commodity without stating its nature on the shipping papers but also that it knew what he was doing or alternatively that he willfully neglected to ascertain what the facts were.

There was nothing in Boyce and we submit there’s nothing here to suggest that knowledge of the law was also an element of the Government’s proof and regulation in Boyce was more complex.

As a result of that, the defendant as the Court suggested in Boyce might very well, by showing a good faith compliance with the regulations, by showing that he chose a route and he tried to choose the safest route that that might provide a defense and that that the jury in that case might equip on such a basis. But still the point was that it was factual circumstances that the regulation made pertinent and not the knowledge of the regulation itself that was critical.

And we don’t suggest here that a showing by the defendant at a trial that he didn’t know what he was shipping or that he made some other inadvertent conduct would not be a defense.

This was dismissal of an information.

We don’t have a record.

We don’t know what the defense of the appellee would be.

We submit that there are genuine issues which in some cases may arise and that those should properly be determined at a trial.

Finally, we’d like briefly to turn to the legislative history of this section.

Warren E. Burger:

Let me ask you this.

John F. Dienelt:

Yes sir.

Warren E. Burger:

A hypothetical question. Suppose by some coincidence the man engaged in a manufacturing and handling of sulfuric acid also had a division that handled olive oil and by sheer inadvertence of employees got the sulfuric acid in the olive oil tanks and tank cars —

John F. Dienelt:

Mixed out.

Warren E. Burger:

What impact would that have on a criminal charge for failing to label the sulfuric acid accurately?

Would it be a defense from another —

John F. Dienelt:

I think it would be defense, Your Honor, that that would be a claim that I didn’t know what I’m was shipping and I think that it would be a question for the jury as to whether to believe that.

These cases usually are based on largely on documentary evidence, so you’d have the shipping paper and you, be able to see what he put on the shipping paper and you’ll be able to see what he put on the shipping paper.

And he’d have a very strong case if he had olive oil written on the shipping paper that’s what he thought it was.

It would be a hard case for us to prove, we might very well not indict in such a situation.

I was advised that very recently there was a case where the Government decided not to prosecute and which an employee had gotten the wrong number on the truck.

He’d hitched his cab up to 1191 instead of 1157 something like that the Government decided that it wouldn’t be indicted.

Situations like that might very well provide offenses of trial.

John F. Dienelt:

But we don’t believe that that has anything to bear on the nature of the elements that the Government must allege in the indictment.

There isn’t any legislative history of the very early provisions stating back to around 1908 regarding what Congress meant by using “knowingly” in the statute.

In 1960, however, when Congress made other changes in the statute, it did consider changing the “knowingly” requirement.

The Interstate Commerce Commission wanted to make this a statute imposing absolute liability.

In other words, that defense of “I thought I was shipping olive oil” would not be of the defense that the shipper would be absolutely liable for what was in that truck regardless of what he thought it was.

This was suggested to both the Senate and the House.

They both rejected that position.

What the Senate did a bill was introduced in the Senate which would have taken “knowingly” out of the statute and substituted for a phrase, “Whoever being aware that the ICC had formulated regulations for safe transportation of explosives and other dangerous articles.”

The House then deleted that phrase and put “knowingly” back in and it said in its report that it intended to retain the present law.

It made reference to judicial pronouncements as to the standards of conduct under the law.

It didn’t say, what cases it was referring to and it didn’t say what its interpretation of those judicial pronouncements was.

Potter Stewart:

There was a reference somewhere in the legislative history however to the concurring opinion in the First Circuit.

John F. Dienelt:

That’s true.

Potter Stewart:

The St. Johnsbury case, was there not?

John F. Dienelt:

There was.

The justification, which the ICC had submitted, and which was used by the Senate in its proposal had made reference to that that was a source of concern as we believe from reading the cases, Boyce as well as St. Johnsbury which was really the other leading case.

Judge Magruder’s opinion was the only one which really addressed itself to the point that I referred to earlier whether “knowing violation of the regulations” meant you had known the regulation.

Potter Stewart:

Had the Boyce case been decided?

John F. Dienelt:

The Boyce case had been decided and so had St. Johnsbury and as we’ve argued that we don’t believe the Boyce case reached the point of the deciding whether knowledge of the law was an excuse.

We believe the most consistent reading of that case, the best reading of that case is that it assumed and it presumed that the shipper would have that knowledge and that lack of that knowledge would not be a defense.

The St. Johnsbury case in the concurring opinion as I’ve said, Judge Magruder did indicate that knowledge of the regulations would be a — lack of knowledge with the regulations would be a defense or that the regulations would have to be proved.

But the majority opinion in that case, even though in the legislative history in some statements by interested agencies.

It was interpreted to hold that knowledge of the law had to be alleged by the Government.

The opinion is not that clear, the facts in the case.

It was a case very similar to this one.

It involved the shipping paper requirement which at that time required the shipper to attach or designate a label which would be then put on the dangerous commodity on the shipping paper and the proof at trial according to the Court of Appeals’ opinion was that the rating clerk who is the only person in the operation responsible for this either negligently failed to do it or else clipped it on with a paper clip and the paper clip fell off and the papers got separated as a result of that, the shipping papers didn’t show the classification and the truck wasn’t properly placarded.

The Court discussed the Boyce opinion and it made some general references with respect to the knowledge of the law but the critical holding in which it sort of paraphrased Boyce was that the Government must prove that the defendant, I’m quoting from the case now, “aware of the dangerous nature of the commodity deliberately chose to transport it without placarding its trucks or labeling it shipping papers or that the defendant willfully neglected to take proper precautions.”

Now, that’s what we feel we’ve alleged here.

That’s what we believe we can prove at trial.

Our point about the legislative history of the revision of the 1960 Act as we stated essentially in our reply brief is basically that it’s neutral.

John F. Dienelt:

It just doesn’t tell us enough one way or another as to what Congress intended and in that context, we feel that it would not be appropriate to impute the Congress and intent to bring about an exemption to the fundamental principle which at least by extension would apply to make any statute which says, “knowingly violates regulations.”

One in which the Government must prove that people who are engaging in the forbidding conduct, often people in the business, know the regulations.

Potter Stewart:

We don’t deal here however with a regulated industry as such, do we John?

John F. Dienelt:

Not as such — its carrier and ships —

Potter Stewart:

The carriers are regulated but the shipper might be anybody.

John F. Dienelt:

That’s —

Potter Stewart:

You or I might be a shipper, a casual shipper, any member of the public —

John F. Dienelt:

That that’s correct.

As far as — so we’ve — in that sense we would have to rely as far as justifying the presumption of knowledge of the law on general principles and on the fact that these are dangerous commodities which ought to signal to somebody the fact that they maybe regulated and would justify the Government imposing upon a requirement of charging them with —

Warren E. Burger:

What you’re saying is that anybody in sulfuric acid business is bound to know that it’s a dangerous substance?

John F. Dienelt:

Precisely and is bound to know the regulations regarding transport of a dangerous substance so that if it fails to follow those regulations knowingly, it can be convicted under the statute and for that reason, we think this Court should find that the information did sufficiently alleged all the essential elements of the crime in this case and that the case should be remanded for a trial.

I like to reserve the rest of my time.

Warren E. Burger:

Very well.

Mr. Spencer.

Harold E. Spencer:

Mr. Chief Justice, may it please the Court.

The sole issue in this case is the sufficiency of the information to state an offense against the United States under Section 834 (f) of Title 18.

Our position with respect to that issue can be very briefly stated in three propositions.

First, the involved statute punishes only one who knowingly violates the regulation; Second, to state an offense under the statute, the defendant must be charged with knowingly violating the regulations; and third, the information here does not charge the defendant with knowingly violating the regulation.

Therefore, the Court properly dismissed the information.

That was the sole reasoning of the Court and I submit that its reasoning was correct.

The Court didn’t go any further than that.

There’s been no trial, no evidence submitted.

The Court simply dismissed the information.

The first proposition as I submit self evident from the wording of the statute.

The statute does not punish an unknowing violation whether or not the defendant intended to do the act that he did.

It only punishes a knowing violation.

The second proposition naturally follows from the first one and I don’t believe there can be any argument about that under the well-known rule that the information must charge all the essential elements of defense.

It must charge the defendant with the knowing violation.

So, we come to the crucial question which is, “Did the information charge the defendant with a knowing violation.”

Well, it didn’t do so in expressed terms.

Harold E. Spencer:

The charge is a knowing act which happens to be in violation of the regulation.

But that is not the offense which is punishable by the statute.

The Government doesn’t really —

Potter Stewart:

Are we at page 4, Mr. Spencer of the Government’s brief contains one of the accounts to the information as representative. I suppose you would concede that this is accurate–

Harold E. Spencer:

Yes, it is Your Honor.

Potter Stewart:

An accurate introduction of its representative.

And it does alleged that the defendant did knowingly failed to show on the shipping papers, the proper names sulfuric acids and so on, in violation of 49 CFR 173.427?

Harold E. Spencer:

That’s correct.

The charges that the defendant knowingly did enact which happens to be in violation of the regulation —

Potter Stewart:

Which was in violation?

Harold E. Spencer:

Which was in violation of the regulation.

But our position is that the statutory offense and the only offense is a knowing violation of the regulation.

Potter Stewart:

And what would you — what do you say that should have been included or added to this count of the information to make it valid.

Harold E. Spencer:

They should have been charged that the defendant knowingly violated the regulation by doing whatever acts they alleged.

Potter Stewart:

So if had said, in knowing violation of 49 CFR, it would have been —

Harold E. Spencer:

Yes.

Potter Stewart:

Valid and sufficient.

Harold E. Spencer:

That makes it a very vital difference, Your Honor.

The reasons which I will state —

Byron R. White:

What does the statute says though?

Harold E. Spencer:

The statute says, “Whoever knowingly violates —

Byron R. White:

Whoever knowingly violates?

Harold E. Spencer:

Yes, Your Honor.

“Whoever knowingly violates them —

Byron R. White:

Well, you say that argument is — you first have to know about the regulations before he can knowingly violate.

Harold E. Spencer:

I say — I say he must be charged with a “knowing violation”.

Now, I don’t come to the question of proof.

I don’t come to the question yet, of what proof would be sufficient to show a knowing violation.

My only point here and the only point involved here is the sufficiency of the information that’s our contention that he must be charged with a “knowing violation of the regulation.”

Now, the Government argument deals with the meaning of the term knowingly.

Harold E. Spencer:

They have a long argument in their brief about the scienter requirements of the word “knowingly.”

Byron R. White:

What if their rights in the indictment is —

Harold E. Spencer:

If there, I’m sorry Your Honor.

I don’t understand your question.

If their right that the —

Byron R. White:

If a knowing violation means if knowing and doing an act which happens to be a violation of the statute they would indict this.

Harold E. Spencer:

Yes, that’s correct.

If that’s all the statute punishes but that isn’t what the statute punishes.

Byron R. White:

Well, that’s what the argument is about?

Harold E. Spencer:

That’s what the argument about, yes.

Now, the District Court didn’t ever consider any of the questions, as I say.

There was no evidence submitted and I would agree that what constitutes knowing violations should only be decided upon a trial of the issues.

Warren E. Burger:

Your arguments of necessity assumes that you have to be in the sulfuric acid business and not know that it’s a such dangerous substance that it’s regulated by a lot of statutes and rules about having, doesn’t it?

Harold E. Spencer:

Not necessarily, it —

Warren E. Burger:

Well, take that first part.

Isn’t anybody in the sulfuric acid business, bound to know its chemical properties?

Harold E. Spencer:

Yes, but that has — that doesn’t have anything to do with the violation of this particular regulation.

Warren E. Burger:

Let’s take this one step at a time.

What’s the answer to that question?

Harold E. Spencer:

I don’t think necessarily that he is bound to know —

Warren E. Burger:

Doesn’t he provide in his own handling of it, a lot of very special kinds of containers?

Harold E. Spencer:

I think if you got to a question of proof that that would certainly be an issue as to whether or not he negligently failed to be aware of the regulations.

Warren E. Burger:

That’s what the Government is complaining about here.

That they never had the chance to get into the proof, even though the charge follows, tracks the statute.

Harold E. Spencer:

Well, no the charge does not track the statute, Mr. Chief Justice.

That is not correct.

Warren E. Burger:

I thought Justice White’s observation made that pretty clear?

Harold E. Spencer:

I don’t believe so Your Honor.

And certainly the decision in the St. Johnsbury case makes it clear.

The necessary implication of the Boyce case makes it clear, Mr. Justice Brennan’s concurring opinion in the Freed case, I believe it was, makes it clear that there’s a distinction between the terms.

Warren E. Burger:

What about what Justice Holmes and Judge Magruder and Justice Jackson had to say on the same subject?

Harold E. Spencer:

They didn’t address themselves to that subject.

Warren E. Burger:

I thought they did?

Harold E. Spencer:

No.

No, Your Honor they did not.

They — the question — the Government’s argument necessarily comes down to this proposition that there is no difference between the statute which says, “Whosoever knowingly does an act in violation of a regulation is guilty of an offense.”

And the statute which says, “Whosoever knowingly violates a regulation is guilty of an offense.”

The Government says, “This is typical language, that it’s standard language.

It isn’t typical standard at all.”

The language in 834 is different from what Congress used in 832 and 833 of the same statute.

That is the language that the Government wants and that Congress knew what it was doing when it made that distinction.

It wrote that scienter requirements are different in Section 834 from the requirements in 832 and 833.

And it certainly knew exactly what it was doing when it did that.

The question that the Government wants to do is that they want to take the word knowingly out of a place in the statute where Congress put it and put it somewhere else which completely changes the meaning of the statute.

The Government — it isn’t the question of proving it — I think the Government is well aware of the fact that if the statute means what it says and they have to charge it “knowing violation”, they probable can’t prove it in this case.

Now, with respect to the — I also have the three points that Mr. Dienelt had with respect to the argument.

The meaning of the words, the judicial interpretations and the legislative intent, as I have pointed out that this is not a typical statute.

It is not standard terminology, Congress itself drew the distinction between the meaning of the word, “knowingly” as they used it Section 834 and as they used it in Sections 832 and 833.

In the Boyce Motor Line case, this Court said that that statute —

Warren E. Burger:

I think we’ll suspend for lunch–

Harold E. Spencer:

Thank you.

Warren E. Burger:

Mr. Spencer, you may continue.

Harold E. Spencer:

Mr. Chief Justice, may it please the Court.

I had just finished discussing the wording of the statute.

Before getting to the legislative history, I would like to spend just a few minutes with respect to the Boyce case and the St. Johnsbury case.

In the Boyce Motor Lines case, this Court held that the statute in question punishes only those who “knowingly violate the regulation.”

The Court said that the presence of a culpable intent is a necessary element of the offense.

The Government says that the Court did not discuss the question of knowledge which is true because that question was not involved in the case.

However, the presence of the culpable intent cannot be squared with the wording of the information which the Government wants to use in this case.

Now, —

Warren E. Burger:

When you take that position Mr. Spencer, you’re now getting into the merits of what the jury might do with it, are you not?

Harold E. Spencer:

Only to the —

Warren E. Burger:

Intent?

Can’t the jury find intent from conduct and circumstances?

Harold E. Spencer:

I think — oh — yes, Your Honor.

Warren E. Burger:

Take the jury for example, specifically conclude that the man that’s engaged or a company that’s engaged in the manufacturing and processing of sulfuric acid knows that it’s an inherently dangerous substance and infer from that, all the necessary elements of the criminal act?

Harold E. Spencer:

That is correct, that could.

That is a question for the trial but that does not mean that the Government does not have to charge the offense set forth in the statute and confine its proof to the offense set forth in the statute.

Now in the St. Johnsbury case, the Court of Appeals for First Circuit reversed the District Court’s finding of guilty under this statute and said that the Court had erred because it found that there was no element of culpable intent necessary.

And in Chief Judge Magruder’s concurring opinion in that case, he took up this very point and he explained the difference between an act knowingly done and which happened to be in violation of the regulation and a knowing violation of the regulation.

And he made that very clear and he says, “It depends upon how the offense is defined by Congress.”

He says, “That this makes the hard for the Government to prosecute the cases.

It’s up to Congress to fix it because they can define the offense.”

Now, I think if those cases are not the answer to this.

The legislative history for the 1960 amendments is conclusive because the commission which at that time had jurisdiction over these regulations, they’ve since been transferred to the Department of Transportation.

But at that time, the Interstate Commerce Commission had jurisdiction and they took Judge Magruder’s suggestion.

And they requested in the 85th Congress, they requested the passage of a bill making various amendments to this Act and among that was an amendment to delete the word “knowingly” from what was then Section 835.

It’s the same Section which is now 834.

The Senate and the 85th Congress noted that the deletion of the word “knowingly” would create an absolute liability for violation of the Section and the Senate said, “We don’t want to go that far.”

So, they substituted the language reading as follows, “Any person who being aware that the Interstate Commerce Commission has formulated regulations for the safe transportation of explosives and other dangerous articles, now I’m paraphrasing, would be guilty of an offense if there was a noncompliance with the regulations.”

That bill passed the Senate, I believe, but failed to pass the House.

In the 86th Congress, the Commission resubmitted the draft bill and in this case they took the Senate’s language.

They submitted the statement of justification in favor of the proposed amendment, a portion of which we have printed in the appendix.

That position — the position of the Commission was that the word, “knowingly” should be simply deleted from the statute.

But in view of the amendments which a Senate language had made in the 85th Congress, the Commission now took the Senate language and said, “This is preferable to what we have.”

Now, in the statement of justification, the principle reason that they used was the fact that the decisions in the Boyce Motor Lines and the St. Johnsbury cases had made prosecutions under the statute very difficult.

That’s set forth in the memorandum.

The Senate passed the bill and it went to the House.

The House Committee on the judiciary considered it and a portion of its report is printed on page 10 of our brief.

The House Committee on the judiciary noted that the Senate’s language created an almost absolute liability.

Harold E. Spencer:

The House Committee said, “There are judicial pronouncements as to what constitutes a knowing violation under the present Act and that could not possibly have been anything, except a reference to the Boyce and the St. Johnsbury cases.”

The House Committee also said, that under the Senate language, little more than proof that the violation had occurred would be needed.

The House said, “In view of the various substantial penalties which are provided under the statute, it is our considered judgment that such a substantial departure from the existing law is not warranted.”

They said, “It is our purpose to retain the present law by providing that a person must knowingly violate the regulations.”

Now, the Government says in oral argument and in its brief, “that Congress only wanted to preserve traditional scienter requirements of the word “knowingly”, that is not correct.

Both the Senate and the House Committees in their reports which are referred to in our brief specifically referred to the fact that under Section 835, the defendant must have knowledge of violating the regulation under that Section of the statute.

Now, it is clear that the Senate did not want the absolute liability of the Interstate Commerce Commission version.

Warren E. Burger:

Are you telling us Mr. Spencer that 834 (f) has no impact on this case.

Harold E. Spencer:

No.

I’m saying that at that time, the provision which now appears in 834 (f) appeared in 835 and when Congress passed these amendments in 1960, they re-codified those two Sections which were then 834 and 835, and that specific provision which was then an 835 is now 834 (f).

Warren E. Burger:

Mr. Spencer, then in — this charge is under 834 (f)?

Harold E. Spencer:

This charge is under 834 (f) —

Warren E. Burger:

That languages is whoever uses knowingly violates, is it not correct?

Harold E. Spencer:

That is correct.

Now, the Government’s position here would impose a more stringent liability than the Senate language and as I say, the Senate did not want the absolute liability of the Commission version and the House did not want the almost absolute liability of the Senate version.

And I think an illustration would make that clear.

Suppose that a shipper who had never heard of these regulations brought a shipment of sulfuric acid to the carrier and said, “Ship this for me”, and he perhaps abbreviated the names sulfuric acid or perhaps didn’t put on the proper shipping classification.

Under the Senate version, he could not be prosecuted because he who had no knowledge of the regulations.

But under this version that the Government now supposes, he could be prosecuted because that would be all that would be required and I think the same thing is true of the Chief Justice’s illustration on the olive oil.

I think if you look at the wording of the information that if that there was a mistake, if they actually shipped sulfuric acid, and that they knowingly failed to show on the shipping papers that it was sulfuric acid.

Warren E. Burger:

But I come back to my original question on that.

Why isn’t tat a matter for a jury?

You have a statute here which —

Harold E. Spencer:

Because —

Warren E. Burger:

— these languages whoever knowingly violates and an indictment that says that this defendant did knowingly failed to show on the shipping papers, the proper names sulfuric acid?

Harold E. Spencer:

Because Your Honor, when they get to a jury, they’re going to argue that this particular violation and the wording of the information that carriers no element of a culpable intent as this Court has said in Boyce and as they said in St. Johnsbury, and —

Warren E. Burger:

Well, is that something for us to try to worry about now?

Harold E. Spencer:

I should say it is.

I see no reason why we should be subjected to a trial on an information that properly doesn’t charge an offense under the statute and it seems to me that one of the things, I don’t really quite understand what so wrong about requiring the Government to charge an offense under the language of the statute.

Why is the Government —

Warren E. Burger:

What language, Mr. Spencer.

Harold E. Spencer:

— so reluctant to do that in this case.

Warren E. Burger:

What language before the indictment would satisfy the position you take?

Harold E. Spencer:

The —

Warren E. Burger:

What should this indictment have said?

Harold E. Spencer:

It should have said that the defendant did knowingly violate the regulation.

Knowingly violate the regulation, not knowingly do an act in violation of the regulation.

Yes, Mr. Spencer, the information ends up with “in violation of the regulation.”

Harold E. Spencer:

Yes, but it’s our contention that the defendant did not knowingly violate the regulation.

This was a little — this had happened to be a little phrase that got slipped into the regulations about when the Department of Transportation took over these things from the Commission and they added this requirement of the showing of a classification on the shipping papers.

Now, I grant that that is something that can be shown at the trial.

But I think that if the issue on the trial is whether we knowingly violated the regulation then I see no reason at all, why the Government should not be required to allege that we knowingly violated the regulation and to prove that violation.

And you’re not claiming of course any or have you been misled to any prejudice to all of this point?

Harold E. Spencer:

No.

At this point, we are not Your Honor.

Now, in throughout all of these cases and a lot of them have been decided here they run the gamut from the common law crimes which been taken over by the statute, the public welfare offenses in which this Court have said that, no such element is required.

But there is one thing that goes through all of these cases and that is that the intent of Congress must govern.

Now, Congress has wide latitude in defining this offense.

As I have pointed out previously, they defined the offense differently in Section 834 and the way they defined it in 832 and 833, and I submit that the intent of Congress must govern.

It’s very clear that Congress did not intend to subject to these heavy penalties of a $1,000.00 for each offense and a year in the federal penitentiary for an inadvertent violation of these regulations.

I submit, if the Court please, that the District Court was quite correct in its reasoning, that the information here does not charge an offense under Section 834 and that if the judgment of the District Court should be affirmed.

Warren E. Burger:

Thank you, Mr. Spencer.

You have about eight minutes left Counsel.

John F. Dienelt:

I only have about two brief points.

First with respect to this language, the point is that it’s a standard terminology which is used in numerous statutes.

We’ve cited the statutes at footnote 7 of our brief which deal with the Federal Power Commission and Federal Communications Commission, the Secretary of the Interior, his jurisdiction over conservation and there are numerous other areas.

And although we are willing to agree that there maybe a certain ambiguity by use of the phrase “knowingly violates regulations.”

If you read it in the abstract, the fact that it’s used so frequently means to us, that it is merely a means by which Congress has adopted a shorthand to incorporate regulations that are validly promulgated by an administrative agency with respect to Sections 822 and 823 of this Act, that those are situations in which Congress was able or apparently felt itself able to put in part of the conduct in the statute itself rather than delegating full responsibility.

Hugo L. Black:

(Inaudible) –?

John F. Dienelt:

Well, that was the second point, Your Honor. Our position is that it just isn’t clear enough as to what Congress meant when it revised the statute that we can’t get enough guidance with respect to what the Congress intended to impute to them and intent to override what we consider to be a fundamental proposition that that ignorance of the law doesn’t excuse its violation.

John F. Dienelt:

The Interstate Commerce Commission’s justification which Mr. Spencer referred to, which is quoted in the appendix to his brief, referred to the Commission’s view that reference to culpable intent had been relied upon by defense attorneys and to some extent by Courts as requiring establishment of some minimal element or affirmative intention to evade the law in addition to the knowledge of the facts.

This we think emphasizes that even the Interstate Commerce Commission wasn’t absolutely clear on that.

It felt that there was difficulty and it wanted to create absolute liability.

I submit that the absolute liability would have been much more helpful to it in terms of eliminating knowledge of the facts.

In other words, eliminating the requirement that the defendant had to know he was shipping sulfuric acid for example, and we think that by the same token, it’s possible to read the language that the Senate substituted.

Whoever is being aware that regulations had been formulated as referring somewhat ironically perhaps to knowledge of the law but not knowledge of the facts.

In other words, you’d have a situation where the Government would at trial have to prove a general awareness by the shipper or carrier of knowledge of the regulations but no knowledge at all, absolute liability with respect to the facts.

And that brings me to the third point and that is we don’t intend to say here that there isn’t a defense of a mistake of fact.

I think that’s for the jury, however, proof necessarily in these cases depends to a large extent on inferring from conduct, knowledge of a failure to comply with regulations.

For example in this case, we’ve alleged five counts in the indictment.

We would proffer a trial, 33 other counts and we would ask the jury to infer from that knowledge of the facts.

And in that sense, an intent, a culpable intent if you will, to violate the regulations and no further questions.

Warren E. Burger:

Thank you, Mr. Dienelt.

Thank you, Mr. Spencer.

The case is submitted.