TBA Law Blog

Posted by: Wade Davies on Nov 26, 2019

Journal Issue Date: Nov 2019

Journal Name: Vol 55 No 11

The mental element of a crime is often the most important element.  Having a guilty mind is what can distinguish accidental conduct from the type of misconduct society wants to punish criminally. Two years ago this column looked at whether it is possible to commit a crime without meaning to do anything wrong.1

Two important developments — one from the United States Supreme Court and one from the Tennessee legislature — call for a reexamination of the topic.

On the federal side, the United States Supreme Court has made it more difficult to be convicted of a firearms offense without intentionally doing something wrong. A recently enacted Tennessee statute prohibiting “influencing” a domestic violence victim moves toward broader application because it dispenses with any coercion requirement.

Violation of Prohibition Without Knowing You Are Prohibited?

First, in Rehaif v. United States2, the United States Supreme Court addressed a conviction for possession of a firearm while unlawfully in the United States in violation of 18 U.S.C. § 922(g). Mr. Rehaif had entered the United States on a student visa. He didn’t make it in school, though, but continued to live in the United States. He also went target shooting at a gun range twice. Based on his violation of his visa requirements and target practice, he got himself convicted of a gun offense. The jury was instructed that the government did not have to prove that Rehaif knew that he was unlawfully in the United States. The government just had to prove that he overstayed his visa and during that time possessed a firearm.

The Supreme Court reversed, holding that it is an element that the defendant knew the status of being unlawfully in the country. Otherwise the defendant could be convicted of essentially innocent conduct. Justice Breyer’s opinion stresses the longstanding presumption that Congress intends to require a defendant to possess a culpable mental state regarding each element that criminalizes otherwise innocent conduct.3

This holding is important because 18 U.S.C. § 922(g) is a statute that is widely used — most often against felons in possession of firearms. The majority opinion indicates its holding will affect prosecutions for being a felon in possession of a firearm as well. Courts generally have not instructed juries that the defendant must know of his or her status. The majority opinion argues that Congress would not have expected to punish one who received probation for a felony and didn’t know that the crime was a disqualifying offense that was punishable by imprisonment for more than a year.4 The application of Rehaif to prosecutions of felons in possession of firearms will be very interesting. The dissent raises the possibility that thousands of felons in possession convictions are now subject to challenge because courts did not instruct that the defendant had to know that he or she was a felon.5 The dissent also argues that scienter requirements have never been interpreted to apply to the defendant’s status. (The dissent also points out that Rehaif himself was explicitly told by the school that he could not lawfully remain in the country after failing out of school).

The main lesson from Rehaif is that the court continues to apply scienter requirements when it finds that otherwise innocent conduct could be criminalized.

‘Influencing’ a Witness Without Coercion

On the other hand, in its recent session the Tennessee legislature created a new offense prohibiting a defendant or agent from “influencing” a domestic violence victim.6 The new statute specifically dispenses with the “coercion” element that applies to witness tampering generally. Traditionally witness tampering has only applied when “coercion” was applied against the witness. Coercion is something that by its terms cannot be done without bad intent. Coercion means a threat was applied.7 The new version of the statute applies when a defendant or an agent influences a witness in a domestic violence case “by any means of persuasion that is not coercion.” If a domestic violence witness expressed hesitation about participating in a prosecution, and the defendant or anyone acting at the defendant’s direction said, “Maybe you should just not show up at court,” that would violate the statute.

But this is ultimately a statute that is unlikely to be violated by a defendant accidentally. There is an intent element — the intent to influence. And the subject of the influence further makes it clear that potentially accidental conduct is unlikely to be prosecuted. The influence has got to be to avoid testifying or withhold evidence. So it should be clear to a defendant charged with domestic violence that this type of influence is improper.

But there is a gray area that is an important one for lawyers  — whether defense counsel might “influence” a witness in a domestic violence case. There is an exemption for a lawyer doing investigation. “Nothing in this section shall operate to impede the investigative activities of an attorney representing a defendant.”8 But advocacy goes beyond “investigative activites.” What if a lawyer is retained to represent a defendant in a domestic violence case, and the complainant and defendant had been engaged in illegal conduct together? Would the new statute prohibit a lawyer from saying to a victim’s lawyer that the victim should consider whether he or she has criminal exposure as well? Perhaps suggest that the witness needed to take the Fifth? The point would be to influence the complainant not to testify. Because that is not investigation, and because the lawyer is ultimately acting at the direction of the defendant, in the words of the statute, I believe that otherwise legitimate discussion between counsel could be criminalized.

This is important not just philosophically, but as a practical matter. Anyone who does not just criminal work but domestic relations work needs to know about the “influencing” statute. It happens so often that complainants and defendants have contact, even when they are not supposed to, that this statute is going to be violated on a regular basis — I hope not by counsel.

WADE?DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense.Davies is a member of the Tennessee Bar Journal Editorial Board.

1. “Guilty Minds,” Crime & Punishment, by Wade V. Davies, Tennessee Bar Journal, November 2017, Vol. 53, No. 11.
2.  Rehaif v. United States, 139 S.Ct. 2191 (2019).
3.  Rehaif v. United States, 139 S. Ct. 2191, 2195 (2019)
4.  Rehaif v. United States, 139 S. Ct. 2191, 2198 (2019).
5.  Rehaif v. United States, 139 S. Ct. 2191, 2201 (2019)(Alito, dissenting).
6.  Chapter 104, Public Acts 2019, Tenn. Code Ann. § 39-16-507(c).
7.  Tenn. Code Ann.. § 39-11-106(a)(4).
8.  Tenn. Code Ann. § 39-16-507(e).