The Bedeviling Question Of Willfulness In The Criminal Context

Courts have long struggled with interpreting (and thus instructing a jury on) the statutory element of willfulness. This frequently manifests in the challenge of expressing what level of knowledge the defendant must possess about the law he is accused of violating. Reflective of this challenge, courts have characterized the element of willfulness as "bedeviling," turning as it does on a "chameleon" word whose construction is often dependent on its context.1 Embracing the chameleon concept, courts have created varying standards that become increasingly difficult for the government to prove as the statutory proscription in question becomes more complex and less intuitive. The following three standards (in order of increasing proof) have emerged as leading candidates:

Baseline level: Simple intentionality (where ignorance of the law is no excuse). Intermediate level (Bryan standard): The defendant intended to violate some law (general intent) but need not have known of the charged law's specific commands. Heightened level (Ratzlaf / Cheek standard): The defendant knew of the legal duty but voluntarily and intentionally violated it.2 The purpose of applying a heightened standard of willfulness is to avoid ensnaring individuals engaged in apparently innocent activity — although defendants often (and understandably) take a home-run swing and urge courts to apply the heightened standard.

In the recent case United States v. Bishop, the 4th Circuit affirmed a conviction for willfully attempting to export ammunition without a license under the Arms Export Control Act (AECA). The defendant argued, unsuccessfully, that he did not know that the particular ammunition he was shipping to Jordan (9 mm and 7.62×39 mm rounds used in AK-47 assault rifles) was subject to export controls under the AECA and International Traffic in Arms Regulations (ITAR). The defendant argued that, without such statutory knowledge, he could not have willfully violated the statute. The court rejected the defendant's argument that the heightened standard for willfulness articulated in Cheek v. United States and Ratzlaf v. United States should apply, distinguishing those cases as involving "highly technical" subjects (federal income tax and financial transaction structuring). Accordingly, in order to prevent capturing innocent conduct, conviction under those laws required proof that the defendants were aware of the specific statutory commands they were alleged to have violated.

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