What are the Levels of Intent in Federal Criminal Cases?
When prosecuting a federal criminal case, a key aspect of the government’s burden of proof is establishing the requisite mens rea, or “criminal state of mind.” Unlike civil cases, in which evidence of intent generally is not required (although there are some exceptions), in criminal cases the government must necessarily prove the defendant’s state of mind at the time the alleged crime was committed. This is true in all cases except in the limited number of instances where a federal law establishes strict liability for a specific form of criminal conduct.
However, simply stating that the government must prove a defendant acted with criminal “intent” does not tell the whole story. In the federal criminal justice system, there are varying levels of criminal intent. Depending on the specific federal statute involved – and in many cases, the outcome of prior cases applying the statute in question – the federal government may need to prove that a defendant acted:
- With general intent; or,
- With specific intent.
Understanding the Four Levels of Intent in Federal Criminal Cases
1. The Defendant Acted Knowingly
Under many federal criminal statutes, it is enough for the government to prove that the defendant acted “knowingly.” Generally speaking, this means that the defendant knew what he or she was doing but not necessarily that he or she knew that the conduct in question was illegal. For example, the federal witness intimidation statute, 18 U.S.C. § 1512(b), states:
“Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to (1) influence, delay, or prevent the testimony of any person in an official proceeding . . . shall be fined under this title or imprisoned not more than 20 years, or both.”
This statute includes an element of specific intent as well (more on this below); but, as you can see, at a threshold level all that is required is that a person “knowingly” intimidate or otherwise coerce a potential federal witness. As a result, in a criminal case under 18 U.S.C. § 1512(b), it would not be a defense that the defendant did not know his or her conduct was illegal. In other words, attempting to intimidate a witness – whether or not you know that it is illegal to do so – is enough to satisfy the “knowing” mens rea standard of the law.
2. The Defendant Acted Willfully
Next is the mens rea of acting “willfully.” The term “willfully” appears in numerous federal criminal laws. The federal statute that prohibits lying to federal agents, 18 U.S.C. § 1001, provides a good example:
“[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully . . . (2) makes any materially false, fictitious, or fraudulent statement or representation . . . shall be fined under this title, imprisoned not more than 5 years . . . or both.”
When explaining what it means to act “willfully,” the federal courts have focused on distinguishing the concept of “evil intent.” As summarized by the U.S. Department of Justice (DOJ):
“The term ‘willfully’ means no more than that the forbidden act was done deliberately and with knowledge, and does not require proof of evil intent. [Citations omitted]. An act is done ‘willfully’ if done voluntarily and intentionally and with the specific intent to do something the law forbids. There is no requirement that the government show evil intent on the part of a defendant in order to prove that the act was done ‘willfully.’”
In applying the “willful” standard set forth in the Anti-Kickback Statute, federal courts have also explained that to act willfully means to act with, “intent to further [an] unlawful purpose.” Again, this must be distinguished from intent to violate the specific statute at issue.
3. The Defendant Acted with General Intent
Perhaps the most-common level of intent applied in federal criminal statutes is that of “general intent.” This concept infers a certain purpose behind the defendant’s action. The Legal Information Institute (LII) defines general intent as, “[a]ctual intent to perform some act, but without a wish for the consequences that result from that act.”
For an example, the federal computer fraud statute, 18 U.S.C. § 1030, states:
“Whoever . . . intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer . . . shall be punished as provided in subsection (c) of this section.”
Under this provision of 18 U.S.C. § 1030, the government needs only to show that the defendant acted with the general intent to access a computer without authorization. It does not need to prove that the defendant also sought such access with the specific intent to unlawfully obtain someone else’s (or the government’s) data.
4. The Defendant Acted with Specific Intent
As alluded to in the prior discussion, the mens rea of specific intent involves committing a criminal act with the purpose of producing or procuring a desired result. In most cases, specific intent does not mean the intent to violate a particular statute.
Many federal fraud statutes incorporate the element of specific intent. In this context, intent incorporates aspects of both knowing and willful behavior. For example, the U.S. Court of Appeals for the Ninth Circuit stated in the case of U.S. v. Piepgrass that, “the requisite mental state in a prosecution for fraud is a specific intent to defraud and not merely knowledge of shadowy dealings.” Likewise, in the case of U.S. v. Bailey, the U.S. Court of Appeals for the Seventh Circuit affirmed that specific intent requires, “willful participation in [the] scheme with knowledge of its fraudulent nature and with intent that [its] illicit objectives be achieved.”
What if a Federal Criminal Statute is Silent Regarding the Requisite Level of Criminal Intent?
Many federal statutes do not explicitly identify the level of intent that is required for criminal culpability. For example, the federal wire fraud statute, 18 U.S.C. § 1343, states:
“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both. . . .”
Based on the plain language of 18 U.S.C. § 1343, you might actually draw the conclusion that this is a strict liability statute. However, the federal courts have determined that criminal culpability under the federal wire fraud statute requires proof of “fraudulent intent.” As the U.S. Court of Appeals for the Second Circuit stated in the case of U.S. v. D’Amato (and as summarized by the DOJ), in a federal wire fraud case:
“The scheme to defraud need not have been successful or complete. . . . However, the government must show ‘that some actual harm or injury was contemplated by the schemer.’ Because the defendant must intend to harm the fraud’s victims, ‘[m]isrepresentations amounting only to a deceit are insufficient to maintain a . . . wire fraud prosecution.’ ‘Instead, the deceit must be coupled with a contemplated harm to the victim.’ In many cases, this requirement poses no additional obstacle for the government. When the ‘necessary result’ of the actor’s scheme is to injure others, fraudulent intent may be inferred from the scheme itself. Where the scheme does not cause injury to the alleged victim as its necessary result, the government must produce evidence independent of the alleged scheme to show the defendant’s fraudulent intent.”
Overcoming the Government’s Evidence of Intent to Avoid Conviction
When facing federal charges, understanding the level of intent that the government is required to prove can be essential to asserting a successful defense. If you argue that you lacked specific intent when all the government needs to prove is that you acted knowingly, your defense will be fatally flawed. While certain types of procedural defenses can be used to defeat evidence of intent in all cases (i.e. arguing that the government’s evidence is constitutionally inadmissible or barred under Rule 403 of the Federal Rules of Evidence), substantive offenses must target the specific mens rea at issue.
Also, remember that intent is just one element of the government’s case. If you intended to commit a crime but did not actually do so, then arguing lack of criminal conduct – rather than lack of criminal intent – may produce a successful result. That said, federal laws also criminalize the “inchoate” (or incomplete) offenses of conspiracy and attempt; so, here too, careful and strategic defense planning is crucial.
Schedule a Complimentary Federal Criminal Case Assessment
Are you under investigation or facing federal criminal charges? If so, it is important that you speak with a federal defense attorney immediately. To schedule a complimentary case assessment with a member of our federal defense team, call 888-680-1745 or inquire online now.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.