U.S. v. Holloway

• Decision Date: 24 September 1984
• Docket Number: No. 83-1422,83-1422
• Citation: 744 F.2d 527
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Demetris HOLLOWAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 527

744 F.2d 527

UNITED STATES of America, Plaintiff-Appellee, v. Demetris HOLLOWAY, Defendant-Appellant.

No. 83-1422.

United States Court of Appeals Sixth Circuit.

Argued April 19, 1984.

Decided Sept. 24, 1984.

John R. Minock, argued, Detroit, Mich., for defendant-appellant.

Leonard R. Gilman, U.S. Atty., Michael J. Lavoie, Asst. U.S. Atty., argued, Detroit, Mich., for plaintiff-appellee.

Before MERRITT and KRUPANSKY, Circuit Judges, and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

On December 6, 1981, defendant-appellant Demetris Holloway, an inmate at the Milan Federal Correctional Institute in Michigan, was subjected to a pat-down search by a guard as he passed through a checkpoint in the prison. During the search, the guard discovered a bulge in Holloway's jacket pocket; Holloway told the guard that it was coffee. When the guard insisted on seeing it, Holloway ran but was caught by the guard and two other prison employees and searched. Holloway initially resisted the search and attempted to swallow two balloons containing a white substance later determined to be heroin. Two plastic bags containing marijuana were also taken from Holloway during this search. A second search was conducted soon afterwards, and an additional packet of heroin was discovered in Holloway's clothing. Holloway was charged with possession of heroin in violation of 21 U.S.C. Sec. 844(a). ¹

At trial, Holloway's defense centered on his contention that he had found the drugs during the course of his duties as a janitor and intended to turn them over to the warden to get preferential treatment. The testimony of several witnesses called on Holloway's behalf corroborated his story. The district court instructed the jury that the elements of the crime were: (1) that the defendant possessed heroin, and (2) that the defendant did so knowingly and unlawfully.

After about an hour and a half of deliberation, the jury presented a question to the court regarding an instruction which required that the jury find that the defendant possessed the drug knowingly and unlawfully. The jury asked: "If the intent was to turn the drug in and we believe that, is that unlawful possession?" Over defense counsel's objection, the court instructed the jury, in substance, that only law enforcement personnel, persons authorized by such personnel or persons authorized by the Attorney General could legally possess heroin. The jury found Holloway guilty after another hour of deliberation.

The narrow question on appeal is whether the district court committed reversible error in issuing its supplemental instruction in response to the jury's question concerning Holloway's alleged intent to turn the heroin over to the warden.

Holloway argues that in this context the instruction in effect directed a guilty verdict and that it improperly removed any mens rea requirement from the elements of the crime; that while the statute expressly limits lawful possession to the persons delineated in the supplemental charge, an additional element of felonious intent must be implied. ² The government argues that the district court did not err because section 844(a) does not require felonious intent. The only mental state required by the provision, the government maintains, is knowledge that the substance in possession is a controlled substance.

Although we recognize that "[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American jurisprudence," United States v. Freed, 401 U.S. 601, 613, 91 S.Ct. 1112, 1120, 28 L.Ed.2d 356 (1971) (Brennan, J., concurring) (quoting Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951)), we hold that felonious intent is not an element of a violation of 21 U.S.C. Sec. 844(a).

Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), is the seminal case on the requirement of felonious intent as an element of a statutory crime. Morissette openly took bomb casings from an Air Force bombing range and sold them as scrap metal. He contended that he took the casings in the belief that they were abandoned, and that he had no criminal intent in taking them. The district court ruled at trial that such intent was not an ingredient of the crime charged. He was convicted of violating 18 U.S.C. Sec. 641, which provides that "[w]hoever embezzles, steals, purloins, or knowingly converts" government property is subject to fine and imprisonment. On appeal, the Supreme Court reversed, ruling that a conviction under 18 U.S.C. Sec. 641 required a showing of "felonious intent" because the offense with which Morissette was charged was taken over from the common law offense of larceny and carried with it an implied element of felonious intent.

The Morissette Court was quick to indicate, however, that many statutory crimes are not derived from the common law. Id. at 253, 72 S.Ct. at 244. The Court recognized that "a century-old but accelerating tendency" exists both here and in England "to call into existence new duties and crimes which disregard any ingredient of intent." Id. These new "public welfare offenses ... do not fit neatly into ... accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals." Id. at 255, 72 S.Ct. at 246. Rather, the public welfare statutes are designed to "heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare." Id. at 254, 72 S.Ct. at 245. The Court commented upon public welfare offenses as follows:

While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element.

Id. at 256, 72 S.Ct. at 246.

We find that section 844(a) is not codified from the common law and so does not carry with it an element of criminal intent. Section 844(a) is a public welfare statute designed to curb drug use and addiction. ³ In 21 U.S.C. Sec. 801(2), Congress provided that: "[t]he illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." (emphasis supplied). The Supreme Court has held that statutes regulating the handling of drugs do not require felonious intent. United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943); United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922); United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922).

In United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), the Court likened the possession of narcotics to the unauthorized possession of explosives. In Freed, the defendants were indicted for possession of an conspiracy to possess unregistered hand grenades in violation of various sections of the National Firearms Act. The district court granted the defendants' motion to dismiss on the ground that, inter alia, the indictment did not allege scienter. The Supreme Court reversed, holding that 26 U.S.C. Sec. 5861(d) of the Act, which makes it unlawful for any person "to receive or possess a firearm which is not registered to him" required no specific intent or knowledge that the hand grenades were unregistered. The Court followed Balint and quoted extensively from that opinion. The Freed Court found that the firearm statute:

is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act. They are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint, where a defendant was convicted of sale of narcotics against his claim that he did not know the drugs were covered by the federal act.

Id. at 609, 91 S.Ct. at 1118 (footnotes and citations omitted).

In United States v. Renner, 496 F.2d 922 (6th Cir.1974), this Circuit found that an element of mens rea should be implied in certain statutory crimes. In Renner, the defendant was charged with making false statements in connection with the purchase of a firearm to the effect that he was not under indictment on a state felony charge in violation of 18 U.S.C. Sec. 922(a)(6), and with receiving firearms while under indictment on a state felony charge in violation of 18 U.S.C. Sec. 922(h)(1). The defendant had been indicted in a state court for assault with intent to rob, but when he appeared for trial, the prosecuting witness decided to drop the charges. Defendant's bond money was returned to him and, he testified in federal court, he thought that the indictment was dismissed. In fact, however, the indictment was filed with leave to reinstate on recommendation of the prosecuting witness and not formally dismissed until more than three years later. During the time that the indictment was pending, the defendant purchased twenty-two firearms from registered dealers. He admitted that the dealers asked him, in accordance with Treasury Department regulations, whether he was under indictment for a felony. He answered in the negative. He testified that had he known that he was under indictment, he would not have purchased the firearms. His defense at trial was that he did not know of the indictment. The trial judge instructed the jury that lack of knowledge of the pending indictment was a defense to the charges of making false statements, but was not a defense to...