UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: January 20, 1970.
UNITED STATES OF AMERICA, APPELLEE,
THOMAS J. MANCUSO, APPELLANT
Moore and Kaufman, Circuit Judges, and Ryan, District Judge.*fn* Moore, Circuit Judge (concurring).
IRVING R. KAUFMAN, Circuit Judge:
18 U.S.C. § 1407 requires any citizen convicted of narcotics or marijuana offenses, as well as those who are addicted to, or "use" narcotic drugs, to register with customs officials on leaving and entering the country.*fn1 The only question on this appeal is whether one who violated the statute without knowledge or probability of knowledge of its provisions may be convicted under it.
On September 20, 1950, Thomas Mancuso was convicted of violating the federal narcotics laws, and sentenced to three years probation. Almost seventeen years later, on January 18, 1967, Mancuso boarded a British Overseas Airways Corporation plane at Kennedy Airport in New York and flew to England. He returned six days later. Neither on his departure or arrival at Kennedy did he fill out the registration forms required by the statute and the applicable regulations.*fn2 While the prosecution did introduce evidence at trial showing that there were some signs at Kennedy Airport indicating the existence of the registration requirement, the indictment did not charge knowledge, and there were no signs at the BOAC terminal from which Mancuso departed. There can be no argument with the trial judge's conclusion that "the court finds as a fact that the defendant did not have knowledge of the registration requirement in both of the instances as to which he is charged."
Mancuso, after his return to the United States on January 24, 1967, was charged with two counts of violating section 1407; one for leaving the country without registering, and one for entering without registering. He was convicted on both counts and sentenced to one year in jail and $1000 on count 1, and three years on count 2, to run consecutively after count 1. Sentence on count 2 was suspended, with five years probation.
Mancuso urges vigorously that Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957), controls. In Lambert the Supreme Court declared unconstitutional a Los Angeles statute requiring all convicted felons to register with the police department within five days after arriving in the city. The Court held that the lack of either notice or a showing of probability of knowledge of the statute, which permitted conviction of those who had no knowledge or reason to know of its provisions, violated fundamental precepts of due process. Prior cases such as Shevlin-Carpenter Co. v. State of Minnesota, 218 U.S. 57, 30 S. Ct. 663, 54 L. Ed. 930 (1910), and United States v. Balint, 258 U.S. 250, 42 S. Ct. 301, 66 L. Ed. 604 (1922), were distinguished as involving licensing of business activity which were unlike the Los Angeles code provisions, for which "circumstances which might move one to inquire as to the necessity of registration are completely lacking." 355 U.S. at 229, 78 S. Ct. at 243. The Court also indicated that there was no commission of acts, or failure to act under circumstances that would make the doer aware of the consequences of his deed; "we deal here with conduct that is wholly passive -- mere failure to register." 355 U.S. at 228, 78 S. Ct. at 243.
The government stresses our holding in United States v. Juzwiak, 258 F.2d 844 (2d Cir. 1958), cert. denied, 359 U.S. 939, 79 S. Ct. 652, 3 L. Ed. 2d 639 (1958), where we upheld a seaman's conviction under 18 U.S.C. § 1407 for entering and leaving the country without registering. This Court's decision in Juzwiak rested on two alternative grounds; the first, that Lambert was not controlling because it involved "nonfeasance" as opposed to Juzwiak's "misfeasance" in accepting employment on a ship traveling to Europe. The second, citing Lambert, explained that "there was a showing of the probability that the defendant [Juzwiak] had knowledge of his duty to register." 258 F.2d at 847. Later, in United States v. Jones, 368 F.2d 795 (2d Cir. 1966), we expressly refused to decide whether or not knowledge of the statute, or reasonable probability of such knowledge, was a necessary element for conviction under section 1407. We also did not take issue with Judge Port in the District Court for charging that knowledge was required (despite Juzwiak). 368 F.2d at 798 n. 4. Since it would be sheer sophistry to attempt to distinguish Lambert by describing flying to London (Mancuso) as "misfeasance," while characterizing flying to Los Angeles (which Lambert would cover) as "nonfeasance," we regard the second ground in Juzwiak (that there was a showing of probability of knowledge on Juzwiak's part) as the holding in that case. Since the district court specifically found that there was "no knowledge" of the statute, we hold that Mancuso did not violate 18 U.S.C. § 1407.*fn3 Our decision to so construe the statute is supported by a long line of Supreme Court precedents that urge construction of federal statutes, if possible, so as to avoid the question of their constitutionality.*fn4
Our determination to so interpret section 1407 is underscored by both precedent and practicality. The Supreme Court was faced with interpreting a criminal statute lacking of a specific requirement of wilfulness in Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952). It considered the aim of the act (one punishing conversion of government property), and the common-law background in order to conclude that intent, although not specifically mentioned, must be read into it.
On practical, purposive grounds, it is difficult to understand how elimination of the requirement of knowledge would have furthered the Congressional aim to make detection of illegal narcotics importation easier. See United States v. Juzwiak, 258 F.2d 844, 848 (2d Cir.) (Clark, J., concurring), cert. denied, 359 U.S. 939, 79 S. Ct. 652, 3 L. Ed. 2d 639 (1958). The primary purpose of law, and the criminal law in particular, is to conform conduct to the norms expressed in that law. When there is no knowledge of the law's provisions, and no reasonable probability that knowledge might be obtained, no useful end is served by prosecuting the "violators." Since they could not know better, we can hardly expect that they should have been deterred. Similarly, it is difficult to justify application of criminal punishment on other traditional grounds such as retribution, rehabilitation or disablement. Without knowledge, the moral force of retribution is entirely spent; we do not rehabilitate conduct that is by hypothesis not faulty; and there is little to recommend incarcerating those who would obey the law if only they knew of its existence. See Hart, The Aims of the Criminal Law, 23 Law & Contemp. Prob., at 422-25.*fn5 We emphasize these points not to argue that a court may simply rewrite a statute that it does not like, but rather to illustrate how self-frustrating the Congressional enactment would have been had it carried the interpretation urged by the government.
And finally, we are presented with that rare instance in which overturning a criminal conviction will in all probability lead to improved enforcement of the underlying act. The hallmark of this case is sloppiness on the part of those charged with responsibility for enforcing the statute. The total effort to inform those likely to be affected by the provisions of section 1407 seems to have consisted of a few signs posted in crew entrances at airports, in a few places near customs stations, and at other odd locations ill-designed to bring them to public notice of travelers generally. As the trial judge summarized the evidence before him:
"Incredible as it may seem, the Government in all the years since the enactment of the Narcotics Control Act of 1956 [citation omitted], has devised no better way to implement it than to tack up the aforesaid warning notices in various places (not including the departure areas for travelers at the John F. Kennedy Airport). It is obvious that a simple question and warning on applications for passports would accomplish the purpose perfectly * * *."
Thus a simple notice provided with each passport application, or a printed form given to narcotics violators on their conviction, warning them of the requirement to register, would provide both the notice and knowledge necessary to sustain a criminal conviction, and to ensure that the aim of the statute would be fulfilled.
The judgment of the District Court is reversed and the indictment is dismissed.
MOORE, Circuit Judge (concurring):
I concur in the result. Specifically I would not read § 1407 more broadly than as interpreted in Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957) and United States v. Juzwiak, 258 F.2d 844 (2d Cir. 1958), cert. denied 359 U.S. 939, 79 S. Ct. 652, 3 L. Ed. 2d 639 (1958). As I interpret these cases they stand for the necessity of showing knowledge or probability of knowledge. To add, by judicial decision, the requirement of knowledge of the registration requirement is in my opinion to usurp the congressional function. Probability of knowledge is an exclusively factual question dependent upon the facts of each case. Therefore, I would not indulge in generalizations as to how our decisions can lead to improved law enforcement, the wisdom of prosecuting violators or the rehabilitation of transgressors. In short we do not have to declare here when ignorance of the law is an excuse. Nor do we have to list the ways in which notice might be given to warrant a factual conclusion of probability of knowledge. However, I am in complete accord with the very practical suggestions of Judges Kaufman and Dillin as to how the issue even of probability can easily be avoided.