April 23, 2019
WRITE OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT No. 17-9560.
Petitioner Rehaif entered the United States on a nonimmigrant
student visa to attend university but was dismissed for poor
grades. He subsequently shot two firearms at a firing range.
The Government prosecuted him under 18 U.S.C. §922(g),
which makes it unlawful for certain persons, including aliens
illegally in the country, to possess firearms, and
§924(a)(2), which provides that anyone who
"knowingly violates" the first provision can be
imprisoned for up to 10 years. The jury at Rehaif s trial was
instructed that the Government was not required to prove that
he knew that he was unlawfully in the country. It returned a
guilty verdict. The Eleventh Circuit affirmed.
In a prosecution under §922(g) and §924(a)(2), the
Government must prove both that the defendant knew he
possessed a firearm and that he knew he belonged to the
relevant category of persons barred from possessing a
firearm. Pp. 3-12.
(a) Whether a criminal statute requires the Government to
prove that the defendant acted knowingly is a question of
congressional intent. This inquiry starts from a longstanding
presumption that Congress intends to require a defendant to
possess a culpable mental state regarding "each of the
statutory elements that criminalize otherwise innocent
conduct," United States v. X-Citement Video,
Inc., 513 U.S. 64, 72, normally characterized as a
presumption in favor of "scienter." There is no
convincing reason to depart from this presumption here.
The statutory text supports the presumption. It specifies
that a defendant commits a crime if he "knowingly"
violates §922(g), which makes possession of a firearm
unlawful when the following elements are satisfied: (1) a
status element (here "being an alien . . . illegally or
unlawfully in the United States"); (2) a possession
element (to "pos- sess"); (3) a jurisdictional
element ("in or affecting commerce"); and (4) a
firearm element (a "firearm or ammunition"). Aside
from the jurisdictional element, which is not subject to the
presumption in favor of scienter, §922(g)'s text
simply lists the elements that make a defendant's
behavior criminal. The term "knowingly" is normally
read "as applying to all the subsequently listed
elements of the crime." Flores-Figueroa v. United
States, 556 U.S. 646, 650. And the "knowingly"
requirement clearly applies to §922(g)'s possession
element, which follows the status element in the statutory
text. There is no basis for interpreting
"knowingly" as applying to the second §922 (g)
element but not the first.
This reading of the statute is also consistent with a basic
principle underlying the criminal law: the importance of
showing what Black-stone called "a vicious will."
Scienter requirements advance this principle by helping to
separate wrongful from innocent acts. That is the case here.
Possessing a gun can be entirely innocent. It is the
defendant's status, not his conduct alone, that
makes the difference. Without knowledge of that status, a
defendant may lack the intent needed to make his behavior
wrongful. Pp. 3-7.
(b) The Government's arguments to the contrary are
unpersuasive. In claiming that Congress does not normally
require defendants to know their own status, it points to
statutes where the defendant's status is the
"crucial element" separating innocent from wrongful
conduct. X-Citement Video, supra, at 73. Those
statutes are quite different from the provisions at issue
here, where the defendant's status separates innocent
from wrongful conduct. The Government also argues that
whether an alien is "illegally or unlawfully in the
United States" is a question of law, not fact, and thus
appeals to the maxim that "ignorance of the law" is
no excuse. But that maxim normally applies where a defendant
possesses the requisite mental state in respect to the
elements of the crime but claims to be unaware of a law
forbidding his conduct. That maxim does not normally apply
where a defendant's mistaken impression about a
collateral legal question causes him to misunderstand his
conduct's significance, thereby negating an element of
the offense. Rehaifs status as an alien "illegally or
unlawfully in the United States" refers to what
commentators call a "collateral" question of law,
and a mistake regarding that status negates an element of the
offense. Finally, the statutory and legislative history on
which the Government relies is at best inclusive. Pp. 7-11.
888 F.3d 1138, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which
ROBERTS, C. J., and GINSBURG, SOTOMAYOR, KAGAN, GORSUCH, and
KAVANAUGH, JJ., joined. ALITO, J., filed a dissenting
opinion, in which THOMAS, J., joined.
federal statute, 18 U.S.C. §922(g), provides that
"[i]t shall be unlawful" for certain individuals to
possess firearms. The provision lists nine categories of
individuals subject to the prohibition, including felons and
aliens who are "illegally or unlawfully in the United
States." Ibid. A separate provision,
§924(a)(2), adds that anyone who
"knowingly violates" the first provision
shall be fined or imprisoned for up to 10 years. (Emphasis
question here concerns the scope of the word
"knowingly." Does it mean that the Government must
prove that a defendant knew both that he engaged in the
relevant conduct (that he possessed a firearm) and also that
he fell within the relevant status (that he was a felon, an
alien unlawfully in this country, or the like)? We hold that
the word "knowingly" applies both to the
defendant's conduct and to the defendant's status. To
convict a defendant, the Government therefore must show that
the defendant knew he possessed a firearm and also that he
knew he had the relevant status when he possessed it.
Hamid Rehaif entered the United States on a nonimmigrant
student visa to attend university. After he received poor
grades, the university dismissed him and told him that his
"'immigration status'" would be terminated
unless he transferred to a different university or left the
country. App. to Pet. for Cert. 3a. Rehaif did neither.
subsequently visited a firing range, where he shot two
firearms. The Government learned about his target practice
and prosecuted him for possessing firearms as an alien
unlawfully in the United States, in violation of §922(g)
and §924(a)(2). At the close of Rehaif's trial, the
judge instructed the jury (over Rehaif's objection) that
the "United States is not required to prove" that
Rehaif "knew that he was illegally or unlawfully in the
United States." App. to Pet. for Cert. 4a (internal
quotation marks omitted). The jury returned a guilty verdict,
and Rehaif was sentenced to 18 months' imprisonment.
appealed. He argued that the judge erred in instructing the
jury that it did not need to find that he knew he was in the
country unlawfully. The Court of Appeals for the Eleventh
Circuit, however, concluded that the jury instruction was
correct, and it affirmed Rehaif's conviction. See 888
F.3d 1138, 1148 (2018). The Court of Appeals believed that
the criminal law generally does not require a defendant to
know his own status, and further observed that no court of
appeals had required the Government to establish a
defendant's knowledge of his status in the analogous
context of felon-in-possession prosecutions. Id., at
granted certiorari to consider whether, in prosecutions under
§922(g) and §924(a)(2), the Government must prove
that a defendant knows of his status as a person barred from
possessing a firearm. We now reverse.
a criminal statute requires the Government to prove that the
defendant acted knowingly is a question of congressional
intent. See Staples v. United States, 511 U.S. 600,
605 (1994). In determining Congress' intent, we start
from a longstanding presumption, traceable to the common law,
that Congress intends to require a defendant to possess a
culpable mental state regarding "each of the statutory
elements that criminalize otherwise innocent conduct."
United States v. X-Citement Video, Inc., 513 U.S.
64, 72 (1994); see also Morissette v. United States,
342 U.S. 246, 256-258 (1952). We normally characterize this
interpretive maxim as a presumption in favor of
"scienter," by which we mean a presumption that
criminal statutes require the degree of knowledge sufficient
to "mak[e] a person legally responsible for the
consequences of his or her act or omission." Black's
Law Dictionary 1547 (10th ed. 2014).
apply the presumption in favor of scienter even when Congress
does not specify any scienter in the statutory text. See
Staples, 511 U.S., at 606. But the presumption
applies with equal or greater force when Congress includes a
general scienter provision in the statute itself. See ALI,
Model Penal Code §2.02(4), p. 22 (1985) (when a statute
"prescribes the kind of culpability that is sufficient
for the commission of an offense, without distinguishing
among the material elements thereof, such provision shall
apply to all the material elements of the offense, unless a
contrary purpose plainly appears").
can find no convincing reason to depart from the ordinary
presumption in favor of scienter. The statutory text supports
the presumption. The text of §924(a)(2) says that
"[w]hoever knowingly violates" certain subsections
of §922, including §922(g), "shall be"
subject to penal- ties of up to 10 years' imprisonment.
The text of §922(g) in turn provides that it "shall
be unlawful for any person . . ., being an alien . . .
illegally or unlawfully in the United States," to
"possess in or affecting commerce, any firearm or
term "knowingly" in §924(a)(2) modifies the
verb "violates" and its direct object, which in
this case is §922(g). The proper interpretation of the
statute thus turns on what it means for a defendant to know
that he has "violate[d]" §922(g). With some
here-irrelevant omissions, §922(g) makes possession of a
firearm or ammunition unlawful when the following elements
are satisfied: (1) a status element (in this case,
"being an alien . . . illegally or unlawfully in the
United States"); (2) a possession element (to
"possess"); (3) a jurisdictional element ("in
or affecting commerce"); and (4) a firearm element (a
"firearm or ammunition").
here claims that the word "knowingly" modifies the
statute's jurisdictional element. Jurisdictional elements
do not describe the "evil Congress seeks to
prevent," but instead simply ensure that the Federal
Government has the constitutional authority to regulate the
defendant's conduct (normally, as here, through its
Commerce Clause power). Luna Torres v. Lynch, 578
U.S.___, ___- ___ (2016) (slip op., at 15-16). Because
jurisdictional elements normally have nothing to do with the
wrongfulness of the defendant's conduct, such elements
are not subject to the presumption in favor of scienter. See
id., at ___(slip op., at 16).
element aside, however, the text of §922(g) simply lists
the elements that make a defendant's behavior criminal.
As "a matter of ordinary English grammar," we
normally read the statutory term "'knowingly' as
applying to all the subsequently listed elements of the
crime." Flores-Figueroa v. United States, 556
U.S. 646, 650 (2009); see also id., at 652 (we
"ordinarily read a phrase in a criminal statute that
introduces the elements of a crime with the word
'knowingly' as applying that word to each
element"). This is notably not a case where the modifier
"knowingly" introduces a long statutory phrase,
such that questions may reasonably arise about how far into
the statute the modifier extends. See id., at 659
(ALITO, J., concurring in part). And everyone agrees that the
word "knowingly" applies to §922(g)'s
possession element, which is situated after the status
element. We see no basis to interpret "knowingly"
as applying to the second §922(g) element but not the
first. See United States v. Games-Perez, 667 F.3d
1136, 1143 (CA10 2012) (Gorsuch, J., concurring). To the
contrary, we think that by specifying that a defendant may be
convicted only if he "knowingly violates"
§922(g), Congress intended to require the Government to
establish that the defendant knew he violated the material
elements of §922(g).
the text, our reading of §922(g) and §924(a)(2) is
consistent with a basic principle that underlies the criminal
law, namely, the importance of showing what Black-stone
called "a vicious will." 4 W. Blackstone,
Commentaries on the Laws of England 21 (1769). As this Court
has explained, the understanding that an injury is criminal
only if inflicted knowingly "is as universal and
persistent in mature systems of law as belief in freedom of
the human will and a consequent ability and duty of the
normal individual to choose between good and evil."
Moris-sette, 342 U.S., at 250. Scienter requirements
advance this basic principle of criminal law by helping to
"separate those who understand the wrongful nature of
their act from those who do not." X-Citement
Video, 513 U.S., at 72-73, n. 3.
cases in which we have emphasized scienter's importance
in separating wrongful from innocent acts are legion. See,
e.g., id., at 70; Staples, 511 U.S., at
610; Liparota v. United States, 511 U.S. 419, 425
(1985); United States v. Bailey, 444 U.S. 394, 406,
n. 6 (1980); United States v. United States Gypsum
Co., 438 U.S. 422, 436 (1978); Morissette, 342
U.S., at 250-251. We have interpreted statutes to include a
scienter requirement even where the statutory text is silent
on the question. See Staples, 511 U.S., at 605. And
we have interpreted statutes to include a scienter
requirement even where "the most grammatical reading of
the statute" does not support one. X-Citement
Video, 513 U.S., at 70.
the word "knowingly" to the defendant's status
in §922(g) helps advance the purpose of scienter, for it
helps to separate wrongful from innocent acts. Assuming
compliance with ordinary licensing requirements, the
possession of a gun can be entirely innocent. See
Staples, 511 U.S., at 611. It is therefore the
defendant's status, and not his conduct alone,
that makes the difference. Without knowledge of that status,
the defendant may well lack the intent needed to make his
behavior wrongful. His behavior may instead be an innocent
mistake to which criminal sanctions normally do not attach.
Cf. O. Holmes, The Common Law 3 (1881) ("even a dog
distinguishes between being stumbled over and being
sometimes declined to read a scienter requirement into
criminal statutes. See United States v. Balint, 258
U.S. 250, 254 (1922). But we have typically declined to apply
the presumption in favor of scienter in cases involving
statutory provisions that form part of a
"regulatory" or "public welfare" program
and carry only minor penalties. See Staples, 511
U.S., at 606; Morissette, 342 U.S., at 255-259. The
firearms provisions before us are not part of a regulatory or
public welfare program, and they carry a potential penalty of
10 years in prison that we have previously described as
"harsh." X-Citement Video, 513 U.S., at
72. Hence, this exception to the presumption in favor of
scienter does not apply.
Government's arguments to the contrary do not convince us
that Congress sought to depart from the normal presumption in
favor of scienter.
Government argues that Congress does not normally require
defendants to know their own status. But the Government
supports this claim primarily by referring to statutes that
differ significantly from the provisions at issue here. One
of these statutes prohibits "an officer, employee,
contractor, or consultant of the United States" from
misappropriating classified information. 18 U.S.C. §
1924(a). Another statute applies to anyone "at least
eighteen years of age" who solicits a minor to help
avoid detection for certain federal crimes. 21 U.S.C.
§861(a)(2). A third applies to a "parent [or] legal
guardian" who allows his child to be used for child
pornography. 18 U.S.C. §2251(b).
not decide whether we agree or disagree with the
Government's interpretation of these statutes. In the
provisions at issue here, the defendant's status is the
"crucial element" separating innocent from wrongful
conduct. X-Citement Video, 513 U.S., at 73. But in
the statutes cited by the Government, the conduct prohibited-
misappropriating classified information, seeking to evade
detection for certain federal crimes, and facilitating child
pornography-would be wrongful irrespective of the
defendant's status. This difference assures us that the
presumption in favor of scienter applies here even assuming
the Government is right that these other statutes do not
require knowledge of status.
we believe that Congress would have expected defendants under
§922(g) and §924(a)(2) to know their own statuses.
If the provisions before us were construed to require no
knowledge of status, they might well apply to an alien who
was brought into the United States unlawfully as a small
child and was therefore unaware of his unlawful status. Or
these provisions might apply to a person who was convicted of
a prior crime but sentenced only to probation, who does not
know that the crime is "punishable by
imprisonment for a term exceeding one year."
§922(g)(1) (emphasis added); see also
Games-Perez, 667 F.3d, at 1138 (defendant held
strictly liable regarding his status as a felon even though
the trial judge had told him repeatedly-but incorrectly-that
he would "leave this courtroom not convicted of a
felony"). As we have said, we normally presume that
Congress did not intend to impose criminal liability on
persons who, due to lack of knowledge, did not have a
wrongful mental state. And we doubt that the obligation to
prove a defendant's knowledge of his status will be as
burdensome as the Government suggests. See Staples,
511 U.S., at 615, n. 11 ("knowledge can be inferred from
Government also argues that whether an alien is
"illegally or unlawfully in the United States" is a
question of law, not fact, and thus appeals to the well-known
maxim that "ignorance of the law" (or a
"mistake of law") is no excuse. Cheek v. United
States, 498 U.S. 192, 199 (1991).
maxim, however, normally applies where a defendant has the
requisite mental state in respect to the elements of the
crime but claims to be "unaware of the existence of a
statute proscribing his conduct." 1 W. LaFave & A.
Scott, Substantive Criminal Law §5.1(a), p. 575 (1986).
In contrast, the maxim does not normally apply where a
defendant "has a mistaken impression concerning the
legal effect of some collateral matter and that mistake
results in his misunderstanding the full significance of his
conduct," thereby negating an element of the offense.
Ibid.; see also Model Penal Code §2.04, at 27
(a mistake of law is a defense if the mistake negates the
"knowledge . . . required to establish a material
element of the offense"). Much of the confusion
surrounding the ignorance-of-the -law maxim stems from
"the failure to distinguish [these] two quite different
situations." LaFave, Substantive Criminal Law
§5.1(d), at 585.
applied this distinction in Liparota, where we
considered a statute that imposed criminal liability on
"whoever knowingly uses, transfers, acquires, alters, or
possesses" food stamps "in any manner not
authorized by the statute or the regulations." 471 U.S.,
at 420 (quotation altered). We held that the statute required
scienter not only in respect to the defendant's use of
food stamps, but also in respect to whether the food stamps
were used in a "manner not authorized by the statute or
regulations." Id., at 425, n. 9. We therefore
required the Government to prove that the defendant knew that
his use of food stamps was unlawful-even though that was a
question of law. See ibid.
case is similar. The defendant's status as an alien
"illegally or unlawfully in the United States"
refers to a legal matter, but this legal matter is what the
commentators refer to as a "collateral" question of
law. A defendant who does not know that he is an alien
"illegally or unlawfully in the United States" does
not have the guilty state of mind that the statute's
language and purposes require.
Government finally turns for support to the statutory and
legislative history. Congress first enacted a criminal
statute prohibiting particular categories of persons from
possessing firearms in 1938. See Federal Firearms Act, 52
Stat. 1250. In 1968, Congress added new categories of persons
subject to the prohibition. See Omnibus Crime Control and
Safe Streets Act, 82 Stat. 197. Then, in 1986, Congress
passed the statute at issue here, the Firearms Owners'
Protection Act, 100 Stat. 449, note following 18 U.S.C.
§921, which reorganized the prohibition on firearm
possession and added the language providing that only those
who violate the prohibition "knowingly" may be held
Government says that, prior to 1986, the courts had reached a
consensus that the law did not require the Government to
prove scienter regarding a defendant's status. And the
Government relies on the interpretive canon providing that
when particular statutory language has received a settled
judicial construction, and Congress subsequently reenacts
that "same language," courts should presume that
Congress intended to ratify the judicial consensus.
Helsinn Healthcare S. A. v. Teva Pharmaceuticals USA,
Inc., 586 U.S.____, ____ (2019) (slip op., at 7).
to 1986, however, there was no definitive judicial consensus
that knowledge of status was not needed. This Court had not
considered the matter. As the Government says, most lower
courts had concluded that the statute did not require
knowledge of status. See, e.g., United States v.
Pruner, 606 F.2d 871, 874 (CA9 1979). But the Sixth
Circuit had held to the contrary, specifically citing the
risk that a defendant "may not be aware of the
fact" that barred him from possessing a firearm.
United States v. Renner, 496 F.2d 922, 926 (1974).
And the Fourth Circuit had found that knowledge of a
defendant's status was not needed because the statute
"[b]y its terms" did not require knowledge of
status. United States v. Williams, 588 F.2d 92
(1978) (per curiam).
last-mentioned circumstance is important. Any pre-1986
consensus involved the statute as it read prior to
1986-without any explicit scienter provision. But Congress in
1986 added a provision clarifying that a defendant could be
convicted only if he violated the prohibition on firearm
possession "knowingly." This addition, which would
serve no apparent purpose under the Government's view,
makes it all but impossible to draw any inference that
Congress intended to ratify a pre-existing consensus when, in
1986, it amended the statute.
Government points to the House Report on the legislation,
which says that the 1986 statute would require the Government
to prove "that the defendant's conduct was
knowing." H. R. Rep. No. 99-495, p. 10 (1986) (emphasis
added). Although this statement speaks of "conduct"
rather than "status," context suggests that the
Report may have meant the former to include the latter. In
any event, other statements suggest that the word
"knowingly" was intended to apply to both conduct
and status. The Senate Report, for example, says that the
proposed amendments sought to exclude "individuals who
lack all criminal intent and knowledge," without
distinguishing between conduct and status. S. Rep. No.
97-476, p. 15 (1982). And one Senate sponsor of the bill
pointed out that the absence of a scienter requirement in the
prior statutes had resulted in "severe penalties for
unintentional missteps." 132 Cong. Rec. 9590 (1986)
(statement of Sen. Hatch).
assuming without deciding that statutory or legislative
history could overcome the longstanding presumption in favor
of scienter, that history here is at best inconclusive.
* * *
Government asks us to hold that any error in the jury
instructions in this case was harmless. But the lower courts
did not address that question. We therefore leave the
question for those courts to decide on remand. See
Thacker v. TVA, 587 U.S.____, ____ (2019) (slip op.,
at 10) (citing Cutter v. Wilkinson, 544 U.S. 709,
718, n. 7 (2005)).
conclude that in a prosecution under 18 U.S.C. §922(g)
and §924(a)(2), the Government must prove both that the
defendant knew he possessed a firearm and that he knew he
belonged to the relevant category of persons barred from
possessing a firearm. We express no view, however, about what
precisely the Government must prove to establish a
defendant's knowledge of status in respect to other
§922(g) provisions not at issue here. See post,
at 13-15 (ALITO, J., dissenting) (discussing other statuses
listed in §922(g) not at issue here). We accordingly
reverse the judgment of the Court of Appeals and remand the
case for further proceedings consistent with this opinion.