The defendants were indicted under § 2 of the Narcotic Act of December 17, 1914, for unlawfully selling a derivative of opium and a derivative of coca leaves to another person. The indictment alleged the sales were not made pursuant to a written order on a form issued by the Commissioner of Internal Revenue. The defendants demurred, arguing the indictment was insufficient because it did not charge that they knew the drugs sold were prohibited drugs. The statute itself did not make such knowledge an element of the offense.
Issue
Whether an indictment under § 2 of the Narcotic Act must allege that the defendants knew the drugs sold were narcotic derivatives covered by the statute. More broadly, the question was whether Congress intended scienter to be an element of this statutory offense.
Rule
Although scienter was generally required at common law, Congress may create a statutory offense that does not require knowledge of the facts making the act unlawful when the purpose of the statute would be obstructed by such a requirement. Whether scienter is required is a question of legislative intent, and in regulatory measures aimed at public protection or tax enforcement, a person may be required to act at his peril.
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10 practice questions + 4 AI-graded essays on this case
One of 10 multiple-choice questions for this case. Pick an answer to see why.
In Phoenix, Congress has enacted a federal statute requiring anyone who sells listed industrial solvents to do so only on a serially numbered order form issued by the Treasury Department. The statute imposes criminal penalties for sales without the form but says nothing about knowledge. Dana Ortiz sold a solvent that turned out to be on the list, honestly believing it was an unregulated cleaning fluid.
If Dana is prosecuted, which is the strongest argument that the government need not prove she knew the solvent was covered by the statute?
Explanation. The majority held that although scienter was generally required at common law, Congress may create a statutory offense without knowledge of the facts making the act unlawful when legislative intent and statutory purpose show that requiring scienter would obstruct enforcement. In a regulatory or taxing scheme aimed at supervision and recorded evidence of distribution, the seller may be required to determine at his peril whether the item is covered.