Re: On the crime bill and remailers

[nobody@kaiwan.com (Anonymous)]

Mr. Unicorn is rude and uninformed.  He will go far.

1) The act does not make it a per se offense to have a remailer.

2) The act makes it an offense to aid a terrorist.

3) Query: is there a scienter requirement in (2)?

[for the sake of simplicity, we will ignore the fact that there are
scienter requirements in a related part of the bill already, and use Mr.
Unicorn's hypothetical of no explicit requirement of scienter]

3a) There must be a scienter requirement to avoid turning the
proscription in (2) into either (i) a per se offense, excluded by
(1), or (ii) a violation of due process.

3b) Query: why would it be a violation of due process to
have a ban on unknowingly aiding terrorists in the manner Mr. Unicorn 
wishes to read the satute?

An analogy will make the point.  Suppose the act concerned restaurant
regulation, and made it an offence to "feed" a terrorist.  Carlos walks
into your joint in disguise, orders and duly consumes ham on rye.  What
verdict?  Courts will do what it takes to say not guilty, whether via due
process, the rule of leniency, or statutory construction. 

N.B. these problems could be cured, and due process observed, by finding a
duty to make enquiry or imputing a negligence standard of some sort, but
we do not see any hint of this in the statute. 

4) Aha! you say, but terrorism is different from nice law abiding
restaurants, and we brave c'punkers that we are, are on the Edge,
not like the honest sandwitchman.  The courts will not give us
any breaks.  Alas, there is the case of Ratzlaf v. United States,
114 S.Ct. 655 (1994) [summary quoted below], in which the Supreme
Court imputed a scienter requirement into a money laundering
statute which on its face required no such scienter at all.  

5) QED.
(As for others who are as quick to damn as to praise...watch your 
cholestorol!)

//QUOTING--
SYLLABUS:  
As here relevant, federal law requires a domestic bank involved
in a cash transaction exceeding $ 10,000 to file a report with
the Secretary of the Treasury, 31 U.S.C.  5313(a), 31 CFR 
103.22(a); makes it illegal to "structure" a transaction -- i.e.,
to break up a single transaction above the reporting threshold
into two or more separate transactions -- "for the purpose of
evading the reporting requirement," 31 U.S.C.  5324(3); and sets
out criminal penalties for "[a] person willfully violating" the
antistructuring provision,  5322(a). After the judge at
petitioner Waldemar Ratzlaf's trial on charges of violating 
5322(a) and 5324(3) instructed the jury that the Government had
to prove both that the defendant knew of the  5313(a) reporting
obligation and that he attempted to evade that obligation, but
did not have to prove that he knew the structuring in which he
engaged was unlawful, Ratzlaf was convicted, fined, and sentenced
to prison. In affirming, the Court of Appeals upheld the trial
court's construction of the legislation. 
 
Held: To give effect to  5322(a)'s "willfulness" requirement,
the Government must prove that the defendant acted with knowledge
that the structuring he or she undertook was unlawful, not simply
that the defendant's purpose was to circumvent a bank's reporting
obligation. Section 5324 itself forbids structuring with a
"purpose of evading the [ 5313(a)] reporting requirements," and
the lower courts erred in treating the "willfulness" requirement
essentially as words of no consequence. Viewing  5322(a) and
5324(3) in light of the complex of provisions in which they are
embedded, it is significant that the omnibus "willfulness"
requirement, when applied to other provisions in the same
statutory subchapter, consistently has been read by the Courts of
Appeals to require both knowledge of the reporting requirement
and a specific intent to commit the crime or to disobey the law.
The "willfulness" requirement must be construed the same way each
time it is called into play. Because currency structuring is not
inevitably nefarious, this Court is unpersuaded by the United
States' argument that structuring is so obviously "evil" or
inherently "bad" that the "willfulness" requirement is satisfied
irrespective of the defendant's knowledge of the illegality of
structuring. The interpretation adopted in this case does not
dishonor the venerable principle that ignorance of the law
generally is no defense to a criminal charge, for Congress may
decree otherwise in particular contexts, and has done so in the
present instance. Pp. 5-15.
 
976 F.2d 1280, reversed and remanded.

JUDGES: GINSBURG, J., delivered the opinion of the Court, in
which STEVENS, SCALIA, KENNEDY, and SOUTER, JJ., joined.
BLACKMUN, J., filed a dissenting opinion, in which REHNQUIST, C.
J., and O'CONNOR and THOMAS, JJ., joined.

//END QUOTE-----------

SOLONg