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232. Particular Allegations—Intent

See 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." See United States v. Zarra, 298 F. Supp. 1074 (M.D.Pa. 1969), aff'd, 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. McLennan, 672 F.2d 239 (1st Cir. 1982).

An indictment for bank robbery in the language of 18 U.S.C. § 2113(a) 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. Purvis, 580 F.2d 853 (5th Cir.) reh'g denied, 585 F.2d 520, cert. denied, 440 U.S. 914 (1978), concerning an indictment charging conspiracy to violate constitutional rights in violation of 18 U.S.C. § 241. While the statute does not explicitly require specific intent, such intent is nonetheless an essential element of proof to sustain a conviction. The court reviewed the indictment from a common sense viewpoint rather than one of "petty preciosity, pettifogging technicality" to find that the indictment clearly set forth a charge of specific intent without recitation of the words "knowing," "willful," "intentional," or one of their derivations.

Although the element of criminal intent is not specified in 18 U.S.C. § 1711, an indictment for conversion of postal funds must allege criminal intent because the word "convert" itself does not imply that criminal intent is a necessary element of the offense. See United States v. Jackson, 72 F.3d 1370, 1380 (9th Cir. 1995), cert. denied, 116 S. Ct. 1546 (1996); United States v. Morrison, 536 F.2d 286 (9th Cir. 1976).

Intent is often not an element of offenses that are regulatory in nature, that is, offenses aimed not so much at punishment of crime as the achievement of some social objective.

Such legislation dispenses with the conventional requirement for criminal 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 standing in responsible relation to a public danger.

United States v. Dotterweich, 320 U.S. 277, 281 (1943). See Staples v. United States, 114 S.Ct 1793 (1994).

Such offenses flow from an exercise of the government's police power to protect public health and safety. Pure food and drug, traffic, and liquor offenses are typical of this class of legislation. But, as indicated by the Court in Morissette, supra, there is no certain guide classifying offenses into those which require scienter and those which do not.

This is well illustrated by cases involving impersonation of a Federal 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 value. Before its revision in 1948, 18 U.S.C. § 912 included the phrase "with intent to defraud." The fraudulent intent language was deleted. Subsequently, in Honea v. United States, 344 F.2d 798 (5th Cir. 1965), the Fifth Circuit addressed 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 the indictment was fatally defective for failure to allege fraudulent intent. See United States v. Gayle, 936 F.2d 1234, 1237 (11th Cir. 1991), cert. 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 allegation of fraudulent intent was unnecessary, distinguishing Honea, on the ground that the latter described an offense under the second part of 18 U.S.C. § 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 fraudulent intent was not required. See also United States v. Wilkes, 732 F.2d 1154 (3rd Cir.), cert. denied, 469 U.S. 965 (1984); United States v. 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 legislative 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 government's burden of proof. It is believed that most courts would hold allegations of intent to be surplusage where the statute did not require intent as an element of the offense.

Updated December 7, 2018