Morissette v. United States, 342 U.S. 246, 260 (1951).|
Where intent is required, the indictment need not contain
formal words such
as "knowingly," "willfully," "feloniously," or "unlawfully."
United States v. Zarra, 298 F. Supp. 1074 (M.D.Pa. 1969),
423 F.2d 1227 (3d Cir.), cert. denied, 400 U.S. 826 (1970).
Thus, in an
indictment for bail jumping, in which "willfully" is a necessary
element of the
offense, an express allegation that the bail jumping was willful
was not required
so long as other words or facts contained in the indictment
necessarily or fairly
imported guilty knowledge. See United States v.
F.2d 239 (1st Cir. 1982).
An indictment for bank robbery in the language of 18 U.S.C.
that the defendant "by force and violence and by intimidation did
take" was not
fatally defective for failure to charge intent. 18 U.S.C. §
2113(a) does not
include intent and the court, on a motion to vacate sentence, held
that the words
used implied intent. See Walker v. United States,
439 F.2d 1114
(6th Cir. 1971). The same issue was raised in United States v.
580 F.2d 853 (5th Cir.) reh'g denied, 585 F.2d 520,
denied, 440 U.S. 914 (1978), concerning an indictment charging
violate constitutional rights in violation of 18 U.S.C. § 241.
statute does not explicitly require specific intent, such intent is
an essential element of proof to sustain a conviction. The court
indictment from a common sense viewpoint rather than one of "petty
pettifogging technicality" to find that the indictment clearly set
forth a charge
of specific intent without recitation of the words "knowing,"
"intentional," or one of their derivations.
Although the element of criminal intent is not specified in 18
1711, an indictment for conversion of postal funds must allege
because the word "convert" itself does not imply that criminal
intent is a
necessary element of the offense. See United States v.
F.3d 1370, 1380 (9th Cir. 1995), cert. denied, 116 S. Ct.
United States v. Morrison, 536 F.2d 286 (9th Cir. 1976).
Intent is often not an element of offenses that are regulatory
that is, offenses aimed not so much at punishment of crime as the
some social objective.
Such legislation dispenses with the conventional requirement
conduct-awareness of some wrongdoing. In the interest of the
larger good it puts
the burden of acting at hazard upon a person otherwise innocent but
responsible relation to a public danger.
United States v. Dotterweich, 320 U.S. 277, 281 (1943).
Staples v. United States, 114 S.Ct 1793 (1994).
Such offenses flow from an exercise of the government's police
protect public health and safety. Pure food and drug, traffic, and
offenses are typical of this class of legislation. But, as
indicated by the
Court in Morissette, supra, there is no certain guide
offenses into those which require scienter and those which do not.
This is well illustrated by cases involving impersonation of
officer under both parts of 18 U.S.C. § 912, that is, (1)
acting as such or
(2) employing such means in order to obtain money or something of
its revision in 1948, 18 U.S.C. § 912 included the phrase "with
defraud." The fraudulent intent language was deleted.
Subsequently, in Honea
v. United States, 344 F.2d 798 (5th Cir. 1965), the Fifth
the issue of the sufficiency of an indictment under 18 U.S.C. §
912 that did
not allege that the defendant acted with fraudulent intent, an
issue first raised
by the defendant's motion to dismiss. The Fifth Circuit held that
was fatally defective for failure to allege fraudulent intent.
United States v. Gayle, 936 F.2d 1234, 1237 (11th Cir.
denied, 507 U.S. 967 (1993). In United States v.
Guthrie, 387 F.2d
569 (4th Cir. 1967), the Fourth Circuit, however, held that an
fraudulent intent was unnecessary, distinguishing Honea, on
that the latter described an offense under the second part of 18
912. In United States v. Randolph, 460 F. 2d 367
(5th Cir. 1972),
the Fifth Circuit reaffirmed its view, holding that an allegation
409 U.S. 863
(1972). The Second Circuit in United States v. Rose, 500
F.2d 12 (2d Cir.
1974), followed Guthrie, and found that an allegation of
was not required. See also United States v. Wilkes,
732 F.2d 1154
(3rd Cir.), cert. denied, 469 U.S. 965 (1984); United
Cord, 654 F.2d 490 (7th Cir. 1981); United States v.
Robbins, 613 F.2d
688 (8th Cir. 1979).
Where intent is not indicated in the statute, the case law and
history of the offense must be consulted to determine whether
intent should be
charged. Although a safe general rule might be to charge intent if
the issue is
in doubt, such a practice in many cases could serve to increase the
burden of proof. It is believed that most courts would hold
intent to be surplusage where the statute did not require intent as
of the offense.