|United States v. Wells (95-1228), 519 U.S. 482 (1997).|
[ Souter ]
UNITED STATES, PETITIONER v. JERRY
E. WELLS and KENNETH R. STEELE
on writ of certiorari to the united states court of appeals for the eighth circuit
[February, 26 1997]
Justice Stevens, dissenting.
Violation of 18 U.S.C. § 1014 is a crime punishable by up to 30 years in prison, a fine of up to $1,000,000, "or both." I am convinced that Congress did not intend this draconian statute to apply to immaterial falsehoods, even when made for the purpose of currying favor with a bank's loan officer. The Court's contrary conclusion relies heavily on three dubious assumptions: (1) that our decision in Kay v. United States, 303 U.S. 1 (1938), speaks to the issue in this case; (2) that the revisers of §1014 erred in advising us that their 1948 consolidation of 13 earlier statutes did not change the law; and (3) that flattery of bank officers is uncommon. I disagree with each of those assumptions.
Our opinion in Kay, on which the majority relies, does not address the issue in this case. It does, however, illuminate the problems with the Court's holding today. Ms. Kay was convicted of making false statements under the Home Owners' Loan Act, 12 U.S.C. § 1467(a) and (e) (1940 ed.). 303 U. S., at 3-4. She had falsely stated that the amount of the claims she presented for settlement was two to four times their actual value. Id., at 5. Among the challenges that Kay pressed before this Court was an argument that she could not be convicted under §1467(a) because the Government produced no evidence that her false statement had any effect on the actions of the Loan Corporation. Ibid. In rightly rejecting this argument, this Court reasoned:
"Whether or not the Corporation would act favorably on the loan is not a matter which concerns one seeking to deceive by false information. The case is not one of an action for damages but of criminal liability, and actual damage is not an ingredient of the offense." Id., at 6.
There is a clear distinction between the concept of materiality--whether the information provided could have played a proper role in the loan approval process--and the concept of reliance--whether the information did play a role in the process. Kay could not plausibly have contended that her false statement was immaterial. Certainly a misrepresentation regarding the proposed amount of settlement was relevant and could have affected the Corporation's decision. Instead, she argued that the charge was insufficient because it did not allege that the application had been approved, i.e., that her material false statement had played a causal role. The Court, quite properly, rejected that argument because the crime was complete when the material false statement was made. Since the materiality of the statement was not disputed, the Court had no occasion to address the question presented by this case.
The difference between the issue in Kay and the issue in this case does, however, illustrate the importance of the Court's holding today. Conceivably a prohibition against making intentional false statements might encompass four different categories: (1) all lies, including idle conversation; (2) all lies intended to encourage a favorable response, including mere flattery; (3) all material misstatements; or (4) only those material misstatements that are relied upon by the deceived decisionmaker. Kay held that the coverage of one of the predecessor statutes that became §1014 is broader than the fourth category. In my opinion, §1014 embraces only the third category. The Court, however, concludes that it encompasses all of the second category, which I call the "flattery category" even though that label does not adequately describe its breadth. As now construed, §1014 covers false explanations for arriving late at a meeting, false assurances that an applicant does not mind if the loan officer lights up a cigar, false expressions of enthusiasm about the results of a football game or an election, as well as false compliments about the subject of a family photograph. So long as the false statement is made "for the purpose of influencing" a bank officer, it violates §1014. Ante, at 17.
The history of §1014 also refutes the Court's interpretation of that statute. Prior to the 1948 codification, three of the statutes that became a part of §1014 included an express materiality requirement. The others did not. The Reviser's Note states that the amalgamation of these 13 statutes made no "change of substance" in the law. [n.1] The majority, today interpreting §1014 as making a substantial change in the law, concludes that the reviser was "simply wrong." Ante, at 15.
A more plausible explanation shows that the reviser was, in fact, correct. Prior to the 1948 codification, no federal court appears to have held that any of §1014's predecessor statutes encompassed immaterial statements. At least two cases, however, had held or assumed that the nonexplicit statutes did contain a materiality requirement. See McClanahan v. United States, 12 F. 2d263, 264 (CA7 1926); [n.2] United States v. Kreidler, 11 F. Supp. 402, 403 (SD Iowa 1935). [n.3] Given these federal cases and the absence of any common law precedent for punishing immaterial false statements, it is far more likely that the revisers assumed that all of these statutes included the common law requirement of materiality than that congressional silence was intended to make a dramatic change in the law. [n.4] In my judgment, the fact that the materiality element had been expressly included in some of the predecessor statutes, and only implicitly included in the others, explains why the Reviser's Note could accurately state that the omission of the express reference to materiality was not a "change of substance." [n.5]
At least three additional reasons support the conclusion that the revisers correctly assumed that all of the federal statutes criminalizing false statements included a materiality requirement that was sometimes implicit and sometimes explicit. First, contrary to the Court's assertion, crimes involving "false statements" have a common law heritage that includes an assumption of a materiality requirement. This conclusion is consistent with our prior holding that the term "misrepresentation" in §10 of the Displaced Persons Act of 1948, 62 Stat. 1013, implicitly contained a materiality requirement. See Federenko v. United States, 449 U.S. 490, 507-508, and n. 28 (1981). Today the Court discounts the significance of that holding because it assumes that at common law there was a critical difference between a "misrepresentation" and a "false statement." Ante, at 9, n. 10. However, Kungys v. United States, 485 U.S. 759 (1988), from which the Court draws this inference, made it perfectly clear that "false statements" share a common law ancestry with "misrepresentations." [n.6] At common law, neither term included immaterial falsehoods such as mere flattery. [n.7]
Second, at least 100 federal false statement statutes may be found in the United States Code. About 42 of them contain an express materiality requirement; approximately 54 do not. [n.8] The kinds of false statements found in the first category [n.9] are, to my eyes at least, indistinguishable from those in the second category. [n.10] Nor is there any obvious distinction between the range of punishments authorized by the two different groups of statutes. Moreover, some statutes, such as the one we construed in United States v. Gaudin, 515 U. S. ___ (1995), criminalize two equally culpable categories of false statements but include an explicit materiality requirement in one but not the other category. See id., ___ (slip op., at 2-3) (Rehnquist, C. J., concurring). It seems farfetched that Congress made a deliberate decision to include or to omit a materiality requirement every time it created a false statement offense. Far more likely, in my view, Congress simply assumed--as the government did in Gaudin--that the materiality requirement would be implied wherever it was not explicit.
Third, §1014 was revised at a time when a different view of statutory interpretation held sway. When Congress enacted the current version of the law in 1948, a period marked by a spirit of cooperation between Congress and the Federal Judiciary, Congress looked to the courts to play an important role in the lawmaking process by relying on common law tradition and common sense to fill gaps in the law--even to imply causes of action and remedies that were not set forth in statutory text. It was only three years earlier that one of the greatest judges of the era--indeed, of any era--had admonished us "not to make a fortress out of the dictionary." Cabell v. Markham, 148 F. 2d 737, 739 (CA2 1945). The Court's approach to questions of statutory construction has changed significantly since that time. [n.11] The textual lens through which the Court views the work product of the 1948 revisers is dramatically different from the contemporary legal context in which they labored. In 1948, it was entirely reasonable for Congress and the revisers to assume that the judiciary would imply a materiality requirement that was a routine aspect of common law litigation about false statements.
Indeed, subsequent history confirms the reasonableness of such an assumption: the vast majority of judges who have confronted the question have found an implicit materiality requirement in §1014. As the Court recognizes, all but one of the Courts of Appeals have so held. Ante at 3-4, n. 3. Moreover, both in this case and in Gaudin the prosecutor initially proceeded on the assumption that a nonexplicit statute contained an implicit materiality requirement. Only after it failed to convince us in Gaudin that the materiality issue should be resolved by the judge rather than the jury did the Government switch its position and urge us to reject that assumption entirely.
Because precedent and statutory history refute the Court's position, its decision today must persuade, if at all, on the basis of its textual analysis. But congressional silence cannot be so convincing when the resulting interpretation is so unlikely. [n.12] Even the Court's recent jurisprudence affirms that "[t]he purpose of Congress is the ultimate touchstone." Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 96 (1992) (internal quotations omitted). Mindful of this dictate, the Court has routinely rejected literal statutory interpretations that would lead to anomalous results. See INS v. Cardoza Fonseca, 480 U.S. 421, 454 (1987) (Scalia, J., concurring in judgment) (citing cases). We have been especially willing to reject a purely literal reading of a federal statute that would, as here, expand its coverage far beyond any common law antecedent. [n.13] And, as the majority acknowledges, this would not be the first time that we have had to interpret §1014 so that it would not " `make a surprisingly broad range of unremarkable conduct a violation of federal law.' " Ante, at 17 (quoting Williams v. United States, 458 U.S. 279, 286-287 (1982)).
Congress, the Court seems to recognize, could not have intended that someone spend up to 30 years in prison for falsely flattering a bank officer for the purpose of obtaining favorable treatment. [n.14] Yet the Court justifies its interpretation of the statute by positing that a literal reading of §1014 will not "normally" extend the statute "beyond the limit that a materiality requirement would impose." Ante, at 17. In making this assertion, the Court correctly avoids relying on prosecutors not to bring frivolous cases. [n.15] Rather, it appears to have made an empirical judgment that false statements will not "usually" be about a trivial matter, and that the government will " `relatively rare[ly]' " be able to prove that nonmaterial statements were made for the purpose "of influencing a decision." Ibid. I am not at all sure, nor do I know how the Court determined, that attempted flattery is less common than false statements about material facts. Even if it were, the "unusual" nature of trivial statements provides scant justification for reaching the conclusion that Congress intended such peccadillos to constitute a felony.
Today the Court misconstrues §1014, its history, and our precedents in holding that the statute does not contain a basic materiality requirement. In doing so, the Court confidently asserts that almost every court to interpret §1014, the revisers of the statute, and the courts discussing Kay were all simply wrong. Unwarranted confidence in one's own ability to ascertain the truth has prompted many a victim of deception to make the false statement that "flattery will get you nowhere." It now appears that flattery may get you into a federal prison.
I respectfully dissent.
1 Historical and Revision Notes following §1014, 18 U. S. C., p. 247.
2 "If the false statements charged and proved were wholly frivolous and unrelated, it would in all probability be concluded that they did not supply the basis for a prosecution under [the Act]."
3 "We may assume that a statement . . . not likely to influence one exercising common prudence and caution, would not support the charge. . . . [I]t must be relevant and material."
4 The Court argues that these cases are not persuasive because they did not hold that the relevant predecessor statutes to §1014 contained a materiality requirement. Ante, at 16, n. 20. Even if this is true, the fact remains that the only reported cases to address this issue stated that these statutes did contain a materiality requirement. The natural inference is that the prevailing view at the time, and therefore the prevailing view of the Congress that enacted §1014, was that all "false statements" had to be material to result in criminal penalties. Instead of these cases, the Court asserts, Congress "likely . . . relied on the clear implication of our 1938 decision in Kay [v. United States, 303 U.S. 1]." Ibid. It is difficult to see how Congress could have relied on this "clear implication" when the opinion does not in any way address materiality, but instead holds that reliance is not a requirement of §1014. See United States v. Goberman, 458 F. 2d 226, 229 (CA3 1972); United States v. Kernodle, 367 F. Supp. 844, 851-852 (MDNC 1973).
5 Historical and Revision Notes following §1014, 18 U. S. C., p. 247.
6 "The term `material' in §1451(a) is not a hapax legomenon. Its use in the context of false statements to public officials goes back as far as Lord Coke, who defined the crime of perjury as follows: " `Perjury is a crime committed, when a lawful oath is ministred by any that hath authority, to any person, in any judicial proceeding, who sweareth absolutely, and falsely in a manner material to the issue, or cause in question, by their own act, or by the subornation of others.' 3 E. Coke, Institutes 164 (6th ed. 1680).
"Blackstone used the same term, explaining that in order to constitute `the crime of wilful and corrupt perjury' the false statement `must be in some point material to the question in dispute; for if it only be in some trifling collateral circumstance, to which no regard is paid,' it is not punishable. 4 W. Blackstone, Commentaries *137. See also 1 W. Hawkins, Pleas of the Crown, ch. 27, §8, p. 433 (Curwood ed. 1824). Given these common law antecedents, it is unsurprising that a number of federal statutes criminalizing false statements to public officials use the term `material.' " 485 U. S., at 769 (some emphases added). See also Saks, United States v. Gaudin: A Decision with Material Impact, 64 Ford. L. Rev. 1157, 1163-1166 (1995) (tracing §1001 and other federal false statement statutes back to the common law).
7 Contrary to the Court's assertion, ante, at 9-10, n. 10, I do not assume that when Congress criminalizes an element of a common law crime, the federal offense carries with it every other element of the common law crime. I do presume, however, that when Congress criminalizes an element of a common law crime, it intends that element to have the same meaning it had at common law.
8 Judge Kozinski catalogued these statutes in his dissenting opinion in United States v. Gaudin, 28 F. 3d 943, 959-960, nn. 3 and 4 (CA9 1994). He made the assumption (which I share) that a materiality requirement "is probably implied" in every one of these statutes that does not contain such an express requirement. Id., at 959.
9 See id., at 959, n. 3 ("7 U.S.C. § 13(a)(3) (felony to knowingly make statement that `was false or misleading with respect to any material fact' in report required by statute or futures association); 8 U.S.C. § 1160(b)(7) (penalizing knowing and willful false statement of material fact in application for status of special agricultural worker); 8 U.S.C. § 1225a(c)(6) (penalizing knowing and willful false statement of material fact in application for special status by virtue of entering U. S. before Jan. 1, 1982); 8 U.S.C. § 1325(a) (penalizing improper entry into U. S. by virtue of willful false statement of material fact); 10 U.S.C. § 931 (perjury in military proceeding); 18 U.S.C. § 152 (maximum five year sentence for knowing and fraudulent receipt of material amount of property with intent to defeat bankruptcy code); 18 U.S.C. § 542 (maximum prison term of two years for entry of goods by means of material false statement); 18 U.S.C. § 1919 (maximum one year prison term for false statement of material fact knowingly made to obtain unemployment compensation for federal service); 19 U.S.C. § 1629(f)(2) (maximum five year prison term for any person who knowingly and willfully covers up a material fact from customs official); 19 U.S.C. § 1919 (maximum two year prison term for knowingly making false statement of material fact with intent to influence tariff adjustment); 19 U.S.C. § 2316 (maximum one year prison term for knowingly making false statement of material fact when seeking relief from injury under section 2311); 19 U.S.C. § 2349 (maximum two year prison term for making false statement of material fact for purposes of obtaining relief from injury under Trade Act of 1974); 20 U.S.C. § 1097(b) (maximum one year prison term for knowingly and willfully concealing material information in connection with assignment of federally insured student loan); 20 U.S.C. § 4442(c)(1) (maximum one year prison term for knowingly making false statement of material fact in seeking cultural and art development grants); 22 U.S.C. § 618(a)(2) (maximum six month prison term for willfully making false statement of material fact in registering to distribute political propaganda); 22 U.S.C. § 2778(c) (maximum 10 year prison term for willfully making untrue statement of material fact in report required for control of arms exports and imports); 26 U.S.C. § 7206(1) (maximum three year prison term for willfully making false declaration as to material matter regarding income taxes when under penalty of perjury); 26 U.S.C. § 9012(d) (maximum five year prison term for knowingly and willfully making misrepresentation of material fact during examination of campaign's matching payment account); 29 U.S.C. § 439(b) (maximum one year prison term for person who knowingly makes false statement of material fact in report required under section 431); 29 U.S.C. § 461(d) (maximum one year prison term for knowing misrepresentation of material fact in report labor organization must file once it assumes trusteeship over subordinate organization); 31 U.S.C. § 5324(b)(2) (prohibiting material omission or misstatement of fact in report on monetary instruments transactions); 42 U.S.C. § 290cc-32 (maximum five year prison term for knowingly making false statement of material fact in sale to state for items or services funded by federal government under Medicare); 42 U.S.C. § 300d-20 (same); 42 U.S.C. § 300e-17(h) (maximum five year prison term for knowingly and willfully making false statement of material fact in an HMO's financial disclosure); 42 U.S.C. § 300w-8(1) (maximum five year prison term for knowingly and willfully making false statement of material fact in sale to state of items or services subsidized by federal government); 42 U.S.C. § 300x-56(b) (same); 42 U.S.C. § 300dd-9 (same--under formula grants to states for care of AIDS patients); 42 U.S.C. § 300ee-19(b) (same--under funds for AIDS prevention); 42 U.S.C. § 707(a)(1) (same--under funds for social security); 42 U.S.C. § 1320a-7b(a)(1) (maximum five year prison term for knowingly and willfully making false statement of material fact in application for payments in federally approved plans for medical assistance); 42 U.S.C. § 1383a(a)(1) (maximum one year prison term for knowingly and willfully making false statement of material fact in application for Supplemental Security Income benefits); 42 U.S.C. § 1973i (penalizing knowingly false information for purpose of establishing eligibility to vote); 42 U.S.C. § 3795a (penalizing knowing and willful misstatement or concealment of material fact in any application or record required under chapter); 42 U.S.C. § 6928(d)(3) (maximum two year prison term for knowingly making false material statement in compliance documents); 42 U.S.C. § 6992d(b)(2) (maximum two year prison term for knowingly making false material statement in compliance documents); 42 U.S.C. § 7413(c)(2) (maximum two year prison term for knowingly making false material statement in documents required under chapter); 46 U.S.C. § 1171(b) (any person who, in application for financial aid under merchant marine act, willfully makes untrue statement of material fact is guilty of misdemeanor); 46 U.S.C. § 31306(d) (maximum five year prison sentence for knowingly making false statement of material fact in declaration of citizenship under Shipping Act); 46 U. S. C. App. §839 (maximum five year prison term for knowingly making false statement of material fact to secure required approval of Secretary of Transportation); 49 U. S. C. App. §1472 (maximum three year prison term for knowingly and willfully falsifying or concealing a material fact to obtain FAA certificate); 50 U.S.C. § 855 (maximum five year prison term for willfully making false statement of material fact in registration statement); 50 U. S. C. App. §1193(h) (maximum two year prison term for knowingly furnishing information that is false or misleading in any material respect regarding renegotiation of airplane contracts").
10 See id., at 960, n. 4 ("7 U.S.C. § 614(b-3)(3) (penalizing those who make false statement in application for tax payment warrant); 7 U.S.C. § 2028(d) (punishing those who obtain funds from a Puerto Rico block grant "by . . . false statement"); 7 U.S.C. § 6407(e) (barring "false or unwarranted statements" regarding fluid milk products); 12 U.S.C. § 1782(a)(3) (penalizing false statement in administration of insurance fund); 13 U.S.C. § 213 (penalties for perjury); 12 U.S.C. § 1847 (penalizing false entries in book, report, or statement of bank holding company); 15 U.S.C. § 50 (penalizing false statement to FTC); 15 U.S.C. § 645 (offenses and penalties for certain crimes related to commerce and trade); 15 U.S.C. § 714m (punishing knowingly false statement to Commodity Credit Corporation); 15 U.S.C. § 1825(a)(2)(B) (penalizing false statement in report required by Horse Protection Act); 16 U.S.C. § 831t(b) (penalizing false statement to or on behalf of the Tennessee Valley Authority); 18 U.S.C. § 287 (penalizing false claims against U. S. government); 18 U.S.C. § 288 (penalizing false claims for postal losses); 18 U.S.C. § 289 (penalizing false claims for pensions); 18 U.S.C. § 924 (penalizing knowing false statement in information gun dealers must provide); 18 U.S.C. § 1011 (penalizing knowing false statement in sale of mortgage to federal land bank); 18 U.S.C. § 1012 (penalizing intentional false entry in book of Department of Housing and Urban Development); 18 U.S.C. § 1014 (penalizing false statement to influence federal loan or credit agency); 18 U.S.C. § 1015 (penalizing false statement in naturalization proceeding); 18 U.S.C. § 1018 (penalizing public official who knowingly falsifies official certificate or writing); 18 U.S.C. § 1020 (penalizing false statement regarding highway projects); 18 U.S.C. § 1026 (penalizing false statement regarding farm indebtedness for purpose of influencing Secretary of Agriculture); 18 U.S.C. § 1027 (penalizing false statement in documents required by ERISA); 18 U.S.C. § 1158 (penalizing false statement to secure Indian Arts & Crafts Board trademark); 18 U.S.C. § 1542 (penalizing willful and knowing false statement in passport application); 18 U.S.C. § 1546 (penalizing false statement in immigration documents); 18 U.S.C. § 1712 (penalizing falsification of postal returns to increase compensation); 18 U.S.C. § 1920 (penalizing false statement to obtain Federal employees' compensation); 18 U.S.C. § 2386 (penalizing willful false statement when registering certain organizations); 18 U.S.C. § 2388(a) (penalizing willful false statement with intent to interfere with armed forces during war); 18 U.S.C. § 2424 (penalizing knowing and willful false statement about alien procured or maintained for immoral purposes); 22 U.S.C. § 1980(g) (penalizing false statement in seeking compensation for loss or destruction of commercial fishing vessel or gear); 22 U.S.C. § 2197(n) (penalizing false statement regarding federal insurance of investment in foreign nations); 26 U.S.C. § 7232 (penalizing false statement regarding registration as manufacturer or dealer in gasoline); 29 U.S.C. § 666(g) (penalizing false statement in health and safety report required under this chapter); 30 U.S.C. § 820 (penalizing false statement in document required under subchapter governing mine safety and health); 30 U.S.C. § 941 (penalizing false statement or representation in seeking benefits under subchapter governing mine safety and health); 30 U.S.C. § 1232(d)(1) (penalizing false statement in report submitted with reclamation fee); 30 U.S.C. § 1268(g) (penalizing false statement in documents required by Federal program or Federal Lands program regarding surface mining); 31 U.S.C. § 5322 (penalizing willful violations of subchapter); 33 U.S.C. § 931 (penalizing false statement for purpose of obtaining workers' compensation benefit); 33 U.S.C. § 990(b) (penalizing false statement to corporation governing Saint Lawrence Seaway); 33 U.S.C. § 1319(c)(2) (penalizing knowing false statement in record required by chapter on navigation and navigable waters); 38 U.S.C. § 1987 (penalizing knowing false statement in application, waiver of premium, or claim for benefits, for National Service Life Insurance or U. S. government life insurance); 40 U.S.C. § 883(b) (penalizing false statement to Pennsylvania Avenue Development Corp.); 42 U.S.C. § 408 (penalizing false statement to obtain social security benefits); 42 U.S.C. § 1761(o) (penalizing false statement in connection with summer food service programs for children at service institutions); 42 U.S.C. § 1973i(c) (penalizing knowing false information for purpose of establishing eligibility to vote); 42 U.S.C. § 3220 ([penalizing] false statement to obtain financial assistance or defraud Secretary of Department of Health and Human Services); 42 U.S.C. § 4912(c) (penalizing false statement in documents filed pursuant to chapter's noise control requirements); 43 U.S.C. § 1350(c) (penalizing knowing false statement in application required under subchapter on submerged public lands); 45 U.S.C. § 231(l)(a) (penalizing knowing false statement in report required by subchapter on Rail Road Retirement Accounts); 45 U.S.C. § 359(a) (penalizing knowing false statement to obtain unemployment insurance); 49 U. S. C. App §2216 (penalizing U. S. officials who knowingly make false statement regarding projects submitted for approval of Secretary of Transportation").
12 In fact, the text of §1014 supports the conclusion that "false statement" was intended to cover only material false statements. That statute forbids a person, in the relevant circumstances, from making "any  false statement or  report, or willfully overvalu[ing] any  land,  property or  security." 18 U.S.C. § 1014. The four covered actions other than "false statement[s]" are inherently material. Obviously the overvaluing of any "land, property or security" will be material to any relevant banking transaction. Similarly, the making of a "false report" will presumably be inherently material since the information requested on the report form will be that which the banks deems "capable of influencing" its decision. Read in this context, and drawing on standard statutory construction techniques, see Norfolk & Western R. Co. v. Train Dispatchers, 499 U.S. 117, 129 (1991) (applying "ejusdem generis"--that general terms should be understood in context of specific ones); Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575 (1995) (resolving statutory question problem with "noscitur a sociis"--that "a word is known by the company it keeps"), "false statement" means those false statements that are material.
13 For instance, in United States v. X Citement Video, Inc., 513 U.S. 64 (1994), we held that the "knowingly" requirement of the Protection of Children Against Sexual Exploitation Act of 1977, 18 U.S.C. § 2252 applied to the age of the individual visually depicted. We interpreted the statute this way even though it flew in the face of the "most natural grammatical reading." Id., at 68. To hold otherwise, we explained, would lead to results that were "absurd." Similarly, in Staples v. United States, 511 U.S. 600 (1994), we held that the National Firearms Act, 26 U.S.C. §§ 5801-5872, contained an implicit mens rea requirement although one was not apparent on the face of the statute. "Section 5861(d) is silent concerning the mens rea required for a violation," we explained. Id., at 605. "Nevertheless, silence on this point by itself does not necessarily suggest that Congress intended to dispense with a traditional mens rea element . . . ." Ibid.
An understanding of these cases also exposes the illogic of the Government's and the Court's reliance on United States v. Shabani, 513 U.S. 10 (1994). In Shabani, lacking a clear textual directive, we declined to depart from the common law tradition of not requiring proof of an overt act to establish conspiracy. In this case, of course, the Government asks us to do the opposite: to derogate the common law without clear congressional approval.
14 Consider the following scenario. A crafty home owner in need of a mortgage, having learned that the bank's loan officer is a bow tie aficionado, purchases his first bow tie to wear at their first meeting. As expected, the loan officer is wearing such a tie, which, incidentally, the prospective borrower considers downright ugly. Nevertheless, thinking that flattery will increase the likelihood that the officer will be favorably disposed to approving the loan, the applicant swallows hard and compliments the officer on his tie; he then volunteers the information that he too always wears a bow tie. This is a lie. Under the majority's interpretation, this person could spend 30 years in federal prison. He made a "false statement." 18 U.S.C. § 1014. In fact, until that day he had never worn a bow tie. And the statement was made "for the purpose of influencing" the bank. Ibid. The applicant subjectively hoped that the loan officer--flattered and feeling a sartorial common ground--would be more likely to approve his mortgage.
15 It is well settled that courts will not rely on "prosecutorial discretion" to ensure that a statute does not ensnare those beyond its proper confines. See Baggett v. Bullitt, 377 U.S. 360, 373-374 (1964) ("It will not do to say that a prosecutor's sense of fairness and the Constitution would prevent a successful . . . prosecution for some of the activities seemingly embraced within the sweeping statutory definitions"); Keyishian v. Board of Regents of Univ. of State of N.Y., 385 U.S. 589, 599 (1967) ("It is no answer to say that the statute would not be applied in such a case"). Prosecutors necessarily enjoy much discretion and generally use it wisely. But the liberty of our citizens cannot rest at the whim of an individual who could have a grudge or, perhaps, just exercise bad judgment.