Mens Rea is a legal term that refers the mental state of “criminal intent.” It is the state of mind that an individual must possess when committing an act to be guilty of a crime. Some crimes require a specific mental state, meaning that the conduct is done willfully with knowledge that the conduct is unlawful. Unfortunately, some criminal laws have little or no required mens rea, which allows prosecution for acts that defendants did not know were prohibited. This is the case in some fraud and regulatory criminal cases where the government must only prove that the act was intentional, not that the defendant intended to violate the law.
Mens Rea Reform Targets Federal Criminal Laws
Recently, there has been some media discussion about this unusual topic, mens rea. This is due primarily to the Mens Rea Reform Act of 2015 currently being debated in Congress. Criminal defense attorneys embrace reform in this area of the law because there are literally thousands of federal and state criminal laws, many of which do not require a prosecutorial showing of a specific intent to secure a conviction. These criminal laws are referred to as “strict liability” laws—“you broke it, you own it.” It matters not whether you intended to break it.
According to the Washington Post, those supporting mens rea reform have proposed legislation that would supply “knowingly” as the default mens rea for crimes that do not have a specifically defined mental state. Additionally, the proposed changes would require that if the crime was such that reasonable person, in similar circumstances, would not know their actions were criminal, that the government must prove that the defendant knew, or had reason to know, that the conduct was illegal.
Mens Rea in Obstruction Case
This brings us to the case at hand. And it is a good case that offers a valuable lesson.
In May 2012, members of a DEA drug task force went to Michael Thompson’s apartment. The agents had an arrest warrant for Thompson but no search warrant for his apartment. They placed Thompson in handcuffs and conducted a permissible “protective sweep” of the apartment to make sure there was no immediate threat to the officers.
Defendant Reluctantly Gave Consent, Argued Coercion
The agents asked Thompson for consent to search the apartment. He was reluctant to give consent. It is undisputed that at least one of the agents told Thompson that if the agents had to get a search warrant and found any contraband in the apartment, they would arrest everyone in the apartment. Fearing the arrest of his sister and girlfriend who were in the apartment, Thompson acquiesced to the threat and gave his consent.
The search discovered drugs, digital scales and $2,000 in cash. Thompson elected to face a jury trial, a rare phenomenon in a federal drug case. His attorney aggressively attacked the manner in which the DEA agents had elicited Thompson’s consent to search the apartment.
Motion to Suppress
In a suppression motion, the attorney argued that the digital scales and $2000 should be suppressed because Thompson’s consent had been coerced by one of the agents threatening to arrest his sister and girlfriend if he did not give the consent.
In June 2013, the trial court conducted a hearing on the motion. The court heard testimony from two of the DEA agents who conceded Thompson was told that they were going to get a search warrant and if any contraband was found in the apartment, everyone there would be arrested.
Thompson also testified at the hearing.
In response to a question from his attorney, Thompson said the threat was more direct:
“[The officers] got on the phone, they threatened me with – they said if they search the house and they found anything, they were going to take my sister and my girlfriend at the time to jail.”
Motion to Suppress Denied
The trial judge was not impressed. He denied the motion to suppress.
“Significantly, Thompson did not say that Rivera told him that the women would be arrested if he refused to give his consent,” the trial judge observed. “It was only in response to his attorney’[s] next question, which was leading and mischaracterized what Thompson had just said, that Thompson agreed that Rivera threatened to arrest his sister and girlfriend if he refused to consent to a search.”
A jury convicted Thompson on one count conspiracy to distribute cocaine, cocaine base, and an indeterminate quantity of oxycodone.
In June 2014, the trial court sentenced Thompson to 168 months and five years of supervised release.
Obstruction of Justice
In imposing sentence, the trial judge accepted a recommendation of the Presentence Investigation Report (PSR) that a two-level enhancement should be imposed for obstruction of justice based on the testimony Thompson had given at the suppression hearing.
“The Court expressly characterized Mr. Thompson’s testimony as equivocal, inconsistent, and contradictory,” the PSR stated. “The Court concluded that his conflicting testimony on this central issue could not be credited.”
Thompson objected to the enhancement in his sentencing memorandum and at sentencing.
He told the trial court that he “made [the disputed] statements believing that they were true and they reflect his state of mind at the time; they were not meant to be willfully false or misleading.”
The trial judge did not address this issue, merely stating: “Okay, I think the PSR accurately has calculated the guideline range.”
Court of Appeals Hears Obstruction Issue
Thompson appealed to the Second Circuit Court of Appeals, and the court agreed to hear only the obstruction of justice issue.
The court opened its discussion with the observation that the two-level sentencing enhancement for obstruction of justice is appropriate when a defendant commits perjury at a suppression hearing.
Must Find Willful Obstruction under the Perjury Definition
However, the appeals court pointed out, the trial court “must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do so the same, under the perjury definition [the Supreme Court has] set out.”
Succinctly put, the trial judge before imposing an obstruction of justice enhancement must make a finding of specific intent.
False Statement about Material Fact with Intent to Provide False Testimony
If the enhancement is based on perjured testimony given at a pretrial hearing, the trial judge must apply the definition of the federal perjury statute; specifically, that a defendant gave a false statement concerning “a material fact with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” The required mens rea should have been supported by findings that the defendant intended to provide false testimony.
The probation officers who conduct PSRs and make recommendations to the trial courts are not attorneys. They are probation officers who should stick strictly to the facts and leave the legal conclusions to the attorneys and the courts. Obviously, in this case a probation officer set out factual conclusions for the obstruction enhancement that the trial court followed.
In the Thompson case, without any legitimate basis in fact as to the defendant’s state of mind, the PSR recommended a two-level enhancement for obstruction of justice because the probation officer concluded he had lied at the suppression hearing.
Is Testifying in One’s Defense Automatically Obstruction of Justice?
All Thompson did was to testify about what happened surrounding his consent to search. Perhaps he did not articulate the issues very well and didn’t frame his response in a direct enough fashion, necessitating that his attorney lead him in the direction to say he felt threatened.
There’s no way any rational interpretation of Thompson’s testimony could lead to a conclusion that he gave a “false statement” concerning a “material fact with the willful intent to provide false testimony.”
The trial judge was inattentive to this critically significant detail. He merely accepted the erroneous conclusion of the PSR and applied the recommended two-level enhancement.
The law on this issue in the Second Circuit is clearly settled.
Perjury is Intentional Giving of False Testimony
Before a trial court can apply an obstruction of justice enhancement based on perjury, the appeals court said the judge “must find by a preponderance of the evidence that ‘that the defendant 1) willfully 2) and materially 3) committed perjury, which is (a) the intentional (b) giving of false testimony (c) as to a material fact.’”
Clearly, the trial judge in Thompson’s case did not follow this rule of law. He did not make a factual finding that Thompson, as the Second Circuit said, “acted consciously with the purpose of obstructing justice.”
The appeals court also rebuffed that the government’s suggestion that a trial judge does not err when he or she summarily adopts a PSR’s “conclusory statements” that a defendant committed perjury.
The Second Circuit instructed the government that a district court judge may rely on a PSR to impose an obstruction of justice enhancement only if the PSR “’sets forth reasonably detailed findings in support of its conclusions.”
The appeals court also bluntly rejected the government assessment that any error regarding the application of the obstruction of justice enhancement was harmless because the trial court would have imposed the same sentence anyway. The court found that, in fact, there was harm.
The Second Circuit vacated Thompson’s sentence and remanded the case for resentencing.
The Thompson case illustrates just how important state of mind (or mens rea) is in criminal law. It would be good for Congress to also understand its importance when debating the Mens Rea Reform Act of 2015.
As criminal defense attorneys who have represented individuals charged with federal crimes with either lessened mens rea or none at all, we join in the call for mens rea reform. Criminal prosecutions should be reserved for those who the government can prove intended to do an act that caused harm to another, not those who unintentionally ran afoul of an obscure criminal regulation. It should not be a crime to make a mistake.