IN THE SUPREME COURT OF FLORIDA. : Case No.

Transcription

1 IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA, Appellant, vs. LUKE JARROD ADKINS, ET AL., Appellees. : : : Case No. : : : SC ON APPEAL FROM THE CIRCUIT COURT, IN AND FOR MANATEE COUNTY, STATE OF FLORIDA, PURSUANT TO ARTICLE V, SECTION 3(B)(5) OF THE FLORIDA CONSTITUTION ANSWER BRIEF OF APPELLEES ON THE MERITS JAMES MARION MOORMAN PUBLIC DEFENDER TENTH JUDICIAL CIRCUIT MATTHEW D. BERNSTEIN ASSISTANT PUBLIC DEFENDER FLORIDA BAR NUMBER Public Defender s Office Polk County Courthouse P.O. Box Drawer PD Bartow, FL (863) ATTORNEYS FOR APPELLEES

2 TOPICAL INDEX TO BRIEF PAGE NO. STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...2 ARGUMENT...3 SECTION VIOLATES DUE PROCESS AND IS UNCONSTITUTIONAL ON ITS FACE... 3 A. By clarifying its intent and expressly removing mens rea from section offenses, the legislature created strict liability offenses... 3 B. Because section creates strict liability offenses, the trial court correctly found that section is unconstitutional on its face Because section provides for severe penalties, the statute violates due process and is unconstitutional Because section criminalizes inherently innocent conduct, the statute violates due process and is unconstitutional Because section does not provide notice, the statute violates due process and is unconstitutional C. The affirmative defense provided for in section does not change the nature of section ; section remains a strict liability offense D. Because the affirmative defense does not change the character of section , the affirmative defense does not render the statute constitutional E. While there are exceptions to the requirement of mens rea, section does not fall within any of these recognized exceptions i

3 F. Florida s appellate courts have not directly addressed the issue before this Court G. This Court cannot cure section CONCLUSION...40 CERTIFICATE OF SERVICE...40 ii

4 TABLE OF CITATIONS PAGE NO. CASES Armenia v. Dugger, 867 F.2d 1370 (11th Cir. 1989) 32 Barndollar v. Sunset Realty Corp., 379 So. 2d 1278 (Fla. 1979) 38 Burnette v. State, 901 So. 2d 925 (Fla. 2d DCA 2005) 36 Caibaiosai v. Barrington, 643 F. Supp (W.D. Wis. 1986) 32 Chicone v. State, 684 So. 2d 736 (Fla. 1996) 4, 9, 14, 33 Eastern Air Lines, Inc. v. Dep't of Revenue, 455 So. 2d 311 (Fla. 1984) 38 Flagg v. State, 36 Fla. L. Weekly D2276 (Fla. 1st DCA Oct. 13, 2011) 25, 37 Harris v. State, 932 So. 2d 551 (Fla. 1st DCA 2006) 36, 37 Holdridge v. United States, 282 F.2d 302 (8th Cir. 1960) 11 In re Winship, 397 U.S. 358 (1970) 27, 29 Kass v. Lewin, 104 So. 2d 572 (Fla. 1958) 38 Kennedy v. Louisiana, 554 U.S. 407 (2008) 24, 25 Lambert v. California, 355 U.S. 225 (1957) 21, 22, 23 Liparota v. United States, 471 U.S. 419 (1985) 7, 14, 15, 16, 20 iii

5 Marbury v. Madison, 5 U.S. 137 (1803) 39 Marrero v. State, 741 So. 2d 634 (Fla. 3d DCA 1999) 8 Morissette v. United States, 342 U.S. 246 (1952) 24, 25, 34, 35 Owens v. State, 724 A.2d 43 (Md. 1999) 34 Patterson v. New York, 432 U.S. 197 (1977) 26, 27, 28, 31 People v. Patterson, 347 N.E.2d 898 (N.Y. 1976) 31 Scott v. State, 808 So. 2d 166 (Fla. 2002) 3, 29 Shelton v. Sec'y, Dep't of Corrections, 23 Fla. L. Weekly Fed. D11, 2011 WL (M.D. Fla. July 27, 2011) 13, 25, 37 Siplin v. State, 972 So. 2d 982 (Fla. 5th DCA 2007) 21 Smith v. California, 361 U.S. 147 (1959) 7 Staples v. United States, 511 U.S. 600 (1994) passim State v. Bradshaw, 98 P.3d 1190 (Wash. 2004) 37 State v. Brown, 389 So. 2d 48 (La. 1980) 20 State v. Giorgetti, 868 So. 2d 512 (Fla. 2004) 7, 9, 14 State v. Hubbard, 751 So. 2d 552 (Fla. 1999) 33 State v. Medlin, 273 So. 2d 394 (Fla. 1973) 29 State v. Washington, Nos. F , F , et al. (Fla. 11th Cir. Ct. Aug. 17, 2011) 19, 20 iv

6 State v. Williamson, 813 So. 2d 61 (Fla. 2002) 30 State v. Zarnke, 589 N.W.2d 370 (Wis. 1999) 39 Taylor v. State, 929 So. 2d 665 (Fla. 3d DCA 2006) 37 United States v. Apollo Energies, Inc., 611 F.3d 679 (10th Cir. 2010) 23 United States v. Balint, 258 U.S. 250 (1922) 16, 17 United States v. Brooks, 841 F.2d 268 (9th Cir. 1988) 34 United States v. Engler, 806 F.2d 425 (3d Cir. 1986) 12 United States v. Freed, 401 U.S. 601 (1971) 17 United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558 (1971) 18, 19 United States v. Ransom, 342 F.2d 775 (10th Cir. 1991) 33 United States v. Sistrunk, 622 F.3d 1328 (11th Cir. 2010) 32 United States v. St. Pierre, 578 F. Supp (D.S.D. 1983) 11 United States v. Wulff, 758 F.2d 1121 (6th Cir. 1985) 10, 11 United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) 7, 9 Watson v. Dugger, 945 F.2d 367 (11th Cir. 1991) 5 Williams v. State, 45 So. 3d 14 (Fla. 1st DCA 2010) 37 Williams v. State, 667 So. 2d 914 (Fla. 3d DCA 1996) 8 v

7 Wright v. State, 920 So. 2d 21 (Fla. 4th DCA 2005) 36 STATUTES , Fla. Stat. (2011) , Fla. Stat. (2011) , Fla. Stat. ( ) passim , Fla. Stat. ( ) passim Wash. Rev. Code (2)(a) 37 OTHER AUTHORITIES 65 Am. Jur. 2d Rape 81 (2011) 26 Wayne R. LaFave, Substantive Criminal Law (2d ed. 2003) 28, 29 Francis B. Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55 (1933) 10, 35 vi

8 STATEMENT OF THE CASE AND FACTS Appellees accept Appellant s Statement of the Case and Facts. 1

9 SUMMARY OF THE ARGUMENT Section violates the due process clauses of both the Florida and United States Constitutions, and this Court should declare section unconstitutional on its face. Because the legislature expressly eliminated the element of guilty knowledge from section offenses, section allows an individual to be convicted absent any proof of mens rea. The trial court correctly found section unconstitutional, as section mandates strict liability, criminalizes inherently innocent conduct, does not provide constitutionally required notice, and allows for severe penalties and lengthy prison terms (up to life). Moreover, the affirmative defense provided for in section neither changes the statute s character to anything other than strict liability nor renders the statute constitutional. 2

10 ARGUMENT SECTION VIOLATES DUE PROCESS AND IS UNCONSTITUTIONAL ON ITS FACE. The trial court in this case correctly found section unconstitutional on its face. Section provides for strict liability and criminalizes inherently innocent, and constitutionally protected, activity. Further, without any required proof of culpability, this statute nonetheless prescribes severe penalties. Section cannot withstand constitutional attack; this statute offends due process, and this Court should declare section unconstitutional. A. By clarifying its intent and expressly removing mens rea from section offenses, the legislature created strict liability offenses. Prior to the enactment of section , this Court held that both knowledge of the presence of the substance and knowledge of the illicit nature of the substance are essential elements of the crime of possession of an illegal substance. Scott v. State, 808 So. 2d 166, 169 (Fla. 2002). By enacting section , the legislature expressly removed mens rea from section offenses: The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter , Fla. Stat. ( ). Thus, by enacting section , the legislature unequivocally created strict liability crimes. The State, however, maintains that section does not create strict liability offenses: Section , as modified by 3

11 section , Florida Statutes, does not create an impermissible strict liability statute because, even after amendment, it retains a knowledge requirement; the State must prove a defendant knowingly possessed the substance. (Appellant s Br. at 23.) While knowledge of the presence of the substance remains an element of the crime, this element does not change the statute s character. Section removed all mens rea, or guilty knowledge, from the crime, and this absence of guilty knowledge results in a strict liability offense; innocent knowledge, such as knowledge of the presence of the substance, neither alters the nature of the crime nor provides mens rea. This Court found that guilty knowledge means the defendant must have knowledge of the illicit nature of the substance allegedly possessed. Chicone v. State, 684 So. 2d 736, (Fla. 1996). This guilty knowledge, this knowledge of the illicit nature of the substance, constituted the entire mens rea of section of prior to the enactment of section : Id. at 741 n.6. While no additional evil intent beyond knowledge of the nature of the contraband substance need be established, we believe that knowledge to be the equivalent of the scienter requirement of the common law.... We have generally used mens rea, scienter, and guilty knowledge loosely and interchangeably in this opinion. Constructively, in effect, the defendant has an evil intent under the illegal drug possession statutes if he or she knowingly possesses a prohibited item. That, in fact, is the very evil addressed by the statute. 4

12 Because the legislature, by eliminating the element of knowledge of the illicit nature of the substance, eviscerated the statute s mens rea requirement, the offense no longer requires any culpable knowledge. This complete lack of culpable knowledge exemplifies strict liability. Further, because section offenses require no showing of culpability, these offenses are not general intent crimes. See Watson v. Dugger, 945 F.2d 367, 370 (11th Cir. 1991) ( General intent crimes, however, still require some showing of culpability, either a knowing, reckless, or negligent, rather than intentional, action. (citation omitted)). The Supreme Court has also found that strict liability means absence of guilty knowledge. In Staples v. United States, 511 U.S. 600, 607 n.3 (1994), the Court recognized that knowledge of the presence of the substance, without knowledge of the nature of the substance, results in true strict liability : True strict liability might suggest that the defendant need not know even that he was dealing with a dangerous item. Further, the Court noted that construing statutes to require knowledge of the nature of an item (the knowledge requirement now absent from section ) avoids a rigorous form of strict liability : By interpreting... offenses to require at least that the defendant know that he is dealing with some dangerous or deleterious substance, we have avoided construing criminal statutes to impose a rigorous form of strict liability. Id. Concurring in the judgment, Justice Ginsburg also recognized that mere knowledge of 5

13 the presence of the substance does not provide mens rea: The question before us is... what level of knowledge suffices: (1) knowledge simply of possession of the object; (2) knowledge, in addition, that the object is a dangerous weapon; (3) knowledge, beyond dangerousness, of the characteristics that render the object subject to regulation, for example, awareness that the weapon is a machinegun. Recognizing that the first reading effectively dispenses with mens rea, the Government adopts the second... Id. at 621 (Ginsburg, J., concurring in judgment) (footnote omitted). Mens rea means more than just knowledge; mens rea means guilty knowledge. Section allows an individual to be convicted absent any proof of guilty knowledge. Wholly lacking mens rea, section offenses remain strict liability crimes. B. Because section creates strict liability offenses, the trial court correctly found that section is unconstitutional on its face. The trial court in this case found that the constitutional protections of due process may not be overcome by legislative pronouncement. (V1/R36) The legislature may not define the elements of a crime in such a way as to violate due process. (V1/R39) Appellant, however, states: Contrary to the trial court s ruling it is well within the ambit of the Legislature to define criminal offenses, including deciding the essential elements of each crime so defined. (Appellant s Br. at 15.) As the trial court noted, both the United States and Florida Constitutions limit legislative authority; the legislature must 6

14 act within applicable constitutional constraints, and due process limits the legislature s power to dispense with mens rea when defining serious felony crimes. See Amend. XIV, U.S. Const.; Art. I, 9, Fla. Const. Both this Court and the United States Supreme Court have recognized that mens rea is often required to comport with due process. See State v. Giorgetti, 868 So. 2d 512, 518 (Fla. 2004) ( Because scienter is often necessary to comport with due process requirements, we ascribe the Legislature with having intended to include such a requirement. ); Smith v. California, 361 U.S. 147, 150 (1959) ( Still, it is doubtless competent for the States to create strict criminal liabilities by defining criminal offenses without any element of scienter - though even where no freedom-of-expression question is involved, there is precedent in this Court that this power is not without limitations. ); Liparota v. United States, 471 U.S. 419, 425 n.6 (1985) ( Of course, Congress must act within any applicable constitutional constraints in defining criminal offenses. ); United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994) (noting that a statute completely bereft of a scienter requirement... would raise serious constitutional doubts ). Both this Court and the Supreme Court have provided guidance in determining at what point legislative power must yield to due process. When determining whether to construe a statute as including a mens rea element, or when deciding whether a statute lacking in mens rea does not comport with due process, courts generally consider the following factors: the severity of the 7

15 punishment; the nature of the conduct prohibited and whether the statute criminalizes inherently innocent activity; and whether the statute provides notice. Because section provides for lengthy terms of imprisonment, criminalizes inherently innocent activity, and does not provide notice, the trial court correctly found that section is unconstitutional on its face. 1. Because section provides for severe penalties, the statute violates due process and is unconstitutional. The felony provisions of section provide for penalties ranging from 5 years in prison to 30 years in prison. See , Fla. Stat. (2011); , Fla. Stat. (2011). Also, certain convictions may result in life imprisonment. See , Fla. Stat. (2011); Williams v. State, 667 So. 2d 914, 915 (Fla. 3d DCA 1996) (holding that a defendant may be classified a habitual felony offender for sale or delivery of a controlled substance); Marrero v. State, 741 So. 2d 634, (Fla. 3d DCA 1999) (same). Because these strict liability crimes provide for lengthy prison terms, section does not comport with due process. When determining whether to construe a statute as including a mens rea element, this Court has looked to the statute s penalties. Further, this Court has found that severe penalties should not be imposed absent proof of guilty knowledge. In Chicone, this Court, concluding that section must include scienter and the element of knowledge of the illicit nature of the substance, noted that courts have focused on the patent 8

16 inconsistency in the imposition of substantial criminal sanctions to conduct that does not include scienter. 684 So. 2d at 742. This Court found that 5-year prison terms are incongruous with offenses lacking guilty knowledge: The penalties imposed for violating sections (6)(a) and (1) are incongruous with crimes that require no mens rea. For example, a defendant convicted of possession of a controlled substance can receive up to five years imprisonment and a fine of up to $5,000. Id. at ; see also Giorgetti, 868 So. 2d at 519 (construing the statute to include a guilty knowledge requirement and noting that punishment as a third-degree felony constitutes a serious consequence indeed ). Thus, as 5-year prison terms for strict liability crimes offend due process, prison terms of 30 years or life certainly may not be imposed absent proof of mens rea. The Supreme Court has also stated that the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea. Staples, 511 U.S. at 616. In Staples, the potentially harsh penalty of 10 years in prison confirmed the Court s reading of the statute as including guilty knowledge. Id. The Court noted that imposing severe punishments for offenses that require no mens rea would seem inconguous. Id.; see also X- Citement Video, Inc., 513 U.S. at 72 (construing statute to include a mens rea requirement when violations resulted in harsh penalties of up to 10 years in prison and substantial fines and forfeiture ). 9

17 In determining whether an offense requires mens rea, Professor Sayre also notes that courts should look to the possible penalty : If this be serious, particularly if the offense be punishable by imprisonment, the individual interest of the defendant weighs too heavily to allow conviction without proof of a guilty mind. To subject defendants entirely free from moral blameworthiness to the possibility of prison sentences is revolting to the community sense of justice; and no law which violates this fundamental instinct can long endure. Crimes punishable with prison sentences, therefore, ordinarily require proof of a guilty intent. Francis B. Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55, 72 (1933). Because the legislature, by enacting section , clarified its intent to exclude guilty knowledge as an element of section , this Court can no longer construe the statute as including the element of guilty knowledge. However, because section still provides for harsh penalties and lengthy prison terms, section violates the constitutional right to due process. The Sixth Circuit Court of Appeals has held that a strict liability offense that provides for imposition of two years imprisonment cannot withstand constitutional attack. In United States v. Wulff, 758 F.2d 1121, 1122 (6th Cir. 1985), the government appealed the dismissal of an indictment that charged the defendant with a felony violation of the Migratory Bird Treaty Act. [T]he felony statutory penalty involved... included 10

18 a maximum sentence of two (2) years imprisonment or a fine of Two Thousand ($2,000.00) Dollars, or both. Id. at The court could not read a requirement of scienter into the statute. Id. at Therefore, the issue before the court was whether the absence of a requirement that the government prove some degree of scienter violates the defendant s right to due process. Id. at The court found that the felony penalty provision is severe and would result in irreparable damage to one s reputation and declared the felony provision unconstitutional. Id. at Citing then Judge Blackmun s opinion in Holdridge v. United States, 282 F.2d 302 (8th Cir. 1960), the court stated: Extrapolating from Holdridge, the proper test would appear to be as follows: The elimination of the element of criminal intent does not violate the due process clause where (1) the penalty is relatively small, and (2) where conviction does not gravely besmirch. Id. at The court found that the act did not meet these criteria, as a maximum sentence of two (2) years imprisonment or Two Thousand ($2,000.00) Dollars fine, or both is not a relatively small penalty. Id. (quoting United States v. St. Pierre, 578 F. Supp. 1424, 1429 (D.S.D. 1983)). Further, a felony conviction irreparably damages one s reputation and results in the loss of civil rights. Id. Unlike the Sixth Circuit, the Third Circuit Court of Appeals held that this same provision of the Migratory Bird Treaty Act did not violate due process. Rejecting the government s 11

19 concession that the absence of a scienter requirement in the felony provision of the Migratory Bird Treaty Act violates the due process clause, the court found that the Supreme Court has indicated that the due process clause may set some limits on the imposition of strict criminal liability, but it has not set forth definite guidelines as to what those limits might be. United States v. Engler, 806 F.2d 425, 433 (3d Cir. 1986). The Engler court found that where differences between misdemeanor and felony penalties are as close as they are here, we feel that the analysis takes place on a very slippery slope with too much in the eye of the beholder. Id. at 435. The court did note however that the act regulates conduct that is neither wholly passive nor completely innocent. Id. at In this case, like the act at issue in Wulff and Engler, section requires no proof of guilty knowledge. Also, while the Wulff court held that a two-year term of imprisonment is a severe penalty that cannot be imposed absent proof of guilty knowledge and the Engler court held that a two-year term of imprisonment may be imposed absent proof of guilty knowledge, section provides for terms of imprisonment many times greater than the two-year term allowed in Wulff and Engler. Thus, while courts may disagree as to whether due process draws a line at one-year or two-year sentences, the penalties prescribed for section felony offenses, as Judge Scriven found, clearly lie beyond the outer bounds of due process: [W]hile the Third and Sixth Circuits disagree over whether the outer bounds of due 12

20 process lie at a one or two-year strict liability sentence, the State does not cite, and the Court has not located, any precedent applying federal law to sustain a penalty of fifteen years, thirty years, and/or life imprisonment for a strict liability offense. Shelton v. Sec y, Dep t of Corrections, 23 Fla. L. Weekly Fed. D11, 2011 WL *8 (M.D. Fla. July 27, 2011). [A] ruling upholding penalties on the order permitted by the statute would leave literally nowhere else to go to draw a meaningful Constitutional line. Even if there is uncertainty about precisely where this line is drawn, that hardly matters here because by any measure sentences of fifteen years to life are on the wrong side of it. Id. at *9 (internal quotation marks and citation omitted). Therefore, because section felony offenses allow for severe penalties and lengthy prison terms (up to life) without any required proof of mens rea, section is unconstitutional on its face. 2. Because section criminalizes inherently innocent conduct, the statute violates due process and is unconstitutional. Both this Court and Supreme Court have found that the requirement of mens rea protects innocent actors; absent constitutionally required mens rea, statutes may criminalize inherently innocent, and constitutionally protected, activity. In those cases in which the issue was whether to construe a statute as requiring mens rea, both this Court and the Supreme Court necessarily considered the statute s likelihood of criminalizing 13

21 inherently innocent conduct. Further, in deciding that certain offenses did not require any element of additional guilty knowledge, the Supreme Court concluded that these statutes did not criminalize inherently innocent activity; these statutes regulated either known dangerous activity or activity generally alerting an individual to probable regulation. In requiring the State to prove guilty knowledge as an element of section , this Court, in Chicone, recognized that the requirement of guilty knowledge protects the innocent: Scienter constitutes a factual issue to be resolved by the jury upon proper instructions as to the legal principles pertinent to its consideration. This is not a mere technicality in the law, but a legal principle which must be observed in order to safeguard innocent persons from being made the victims of unlawful acts perpetrated by others, and of which they have no knowledge. It is a safeguard which must be preserved in the interest of justice so that the constitutional rights of our citizens may be preserved. Chicone, 684 So. 2d at 739 (quoting Frank v. State, 199 So. 2d 117, 121 (Fla. 1st DCA 1967)); see also Giorgetti, 868 So. 2d at 516 (same). This Court found that, absent mens rea, section would make criminals out of people who were wholly ignorant of the offending characteristics of items in their possession. Chicone, 684 So. 2d at 743. The Supreme Court has also refused to construe statutes as criminalizing inherently innocent conduct. In Liparota, 471 U.S. at 421, the defendant was indicted for acquiring and possessing food stamps in violation of federal law. The Court addressed 14

22 whether in a prosecution under this provision the Government must prove that the defendant knew that he was acting in a manner not authorized by statute or regulations. Id. at [B]oth parties agree[d] that petitioner must have known that he acquired and possessed food stamps. Id. at 423 n.5. The parties disagree[d] over whether any mental element at all is required with respect to the unauthorized nature of that acquisition or possession. Id. The Court held that the Government must prove that the defendant knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulations. Id. at 433. This construction avoided criminalizing a broad range of apparently innocent conduct. Id. at 426. The Court found that [a] strict reading of the statute with no knowledge-of-illegality requirement would... render criminal a food stamp recipient who... used stamps to purchase food from a store that, unknown to him, charged higher than normal prices to food stamp program participants. Such a reading would also render criminal a nonrecipient of food stamps who possessed stamps because he was mistakenly sent them through the mail due to administrative error, altered them by tearing them up, and transferred them by throwing them away. Id. at (internal quotation marks and footnote omitted). In Staples, 511 U.S. at 619, the Court again construed a statute as including a mens rea element in order to avoid criminalizing a broad range of innocent activity. In Staples, police found a rifle in the defendant s home. After firing the rifle, the police discovered that the rifle had been converted to 15

23 an automatic weapon. Under the National Firearms Act, all automatic weapons must be registered, and a violation of this act is punishable by up to 10 years in prison. Id. at 603. The Court held that to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act. Id. at 619. In declining to hold that there need only be proof that the defendant knew he possessed a gun, the Court stated: [T]he Government ignores the particular care we have taken to avoid construing a statute to dispense with mens rea where doing so would criminalize a broad range of apparently innocent conduct. Id. at 610 (quoting Liparota, 471 U.S. at 426). The Court reasoned that there is a long tradition of widespread lawful gun ownership by private individuals in this country. Id. In other cases, the Court refused to require an additional element of guilty knowledge; however, the offenses in these cases still required that the defendant have knowledge of the nature of the substance. Thus, the Court refused to require an additional element of guilty knowledge only when the statute did not criminalize inherently innocent activity; in these cases, knowledge of the nature of the substance would alert an individual to dangerous activity or probable regulation. For example, in United States v. Balint, 258 U.S. 250, 254 (1922), the Court held that the government need not prove that the defendant knew the specific drugs were within the statute s ambit: [The Act s] manifest purpose is to require every person 16

24 dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him. But, in Balint, the statute still required proof that the defendant knew he was selling drugs. See Staples, 511 U.S. at 606 ( [I]n Balint, we concluded that the Narcotic Act of 1914, which was intended in part to minimize the spread of addictive drugs by criminalizing undocumented sales of certain narcotics, required proof only that the defendant knew that he was selling drugs, not that he knew the specific items he had sold were narcotics within the ambit of the statute. ). Similarly, in United States v. Freed, 401 U.S. 601, 607 (1971), the Court, in determining what level of scienter sufficed, concluded that [t]he Act requires no specific intent or knowledge that the hand grenades were unregistered. However, as the Court later explained, the analysis in Freed... rested entirely on the assumption that the defendant knew that he was dealing with hand grenades - that is, that he knew he possessed a particularly dangerous type of weapon..., possession of which was not entirely innocent in and of itself. Staples, 511 U.S. at 609 (citing Freed, 401 U.S. at 609). The Court emphasized that this construction of the statute did not criminalize innocent activity, as one would hardly be surprised to learn that possession of hand grenades is not an innocent act. Freed, 401 U.S. at 609. In United States v. Int l Minerals & Chem. Corp., 402 U.S. 17

25 558 (1971), the Court again emphasized that its construction did not result in strict liability. In Int l Minerals, the charge stemmed from the shipping of corrosive materials without showing on the shipping papers the required classification. Id. at 559. The sole and narrow question was whether knowledge of the regulation was required. Id. at 560. The Court held that such knowledge was not required: [W]here, as here and as in Balint and Freed, dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation. Id. at 565. The Court stressed that the statute did not impose strict liability: [S]trict or absolute liability is not imposed; knowledge of the shipment of the dangerous materials is required. Id. at 560. A person thinking in good faith that he was shipping distilled water when in fact he was shipping some dangerous acid would not be covered. Id. at Unlike the crimes at issue in Balint, Freed, and Int l Minerals, section does not require knowledge of the nature of the substance. The Court in Int l Minerals noted that a person thinking in good faith that he was shipping some innocuous substance would not be held criminally liable. However, under section , a person thinking in good faith that he possessed baking soda, when in fact the substance was cocaine, would be held criminally liable; the State need only prove knowledge of 18

26 the presence of the baking soda. Thus, the trial court in this case correctly found that section criminalizes innocent activity. The trial court provided the following examples of those who may be found criminally liable without any showing of guilty knowledge: A letter carrier who delivers a package containing unprescribed Adderall ; The roommate who is unaware that the person who shares his apartment has hidden illegal drugs in the common areas of the home ; A mother who carries a prescription pill bottle in her purse, unaware that the pills have been substituted for illegally obtained drugs by her teenage daughter, who placed them in the bottle to avoid detection. (V1/R37) As the trial court stated, even people who are normally diligent in inspecting and organizing their possessions may find themselves unexpectedly in violation of section (V1/R37) Another Circuit Court has also found that section unconstitutionally criminalizes inherently innocent (and inherently common and pervasive) conduct: Section does not punish the drug dealer who possesses or delivers controlled substances. It punishes anyone who possesses or delivers controlled substances however inadvertently, however accidentally, however unintentionally. It reaches beyond those who willfully do wrong, beyond those who negligently do wrong, beyond those who carelessly do wrong, and includes within its wingspan those who meant no wrong. As the Shelton court rightly notes, the simple acts of possession and delivery are part of daily life. Each of us engages in actual possession of all that we have on our person and in our hands, and in constructive possession of all that we own, wherever it may be located. Each 19

27 of us engages in delivery when we hand a colleague a pen, a friend a cup of coffee, a stranger the parcel she just dropped. What distinguishes innocent possession and innocent delivery from guilty possession and guilty delivery is not merely what we possess, not merely what we deliver, but what we intend. As to that as to the state of mind that distinguishes non-culpable from culpable possession or delivery refuses to make a distinction. The speckled flock and the clean are, for its purposes, one. State v. Washington, Nos. F , F , et al. (Fla. 11th Cir. Ct. Aug. 17, 2011). Also, the Supreme Court of Louisiana has recognized that the unknowing possession of a drug cannot constitutionally be made criminal: It requires little imagination to visualize a situation in which a third party hands the controlled substance to an unknowing individual who then can be charged with and subsequently convicted... without ever being aware of the nature of the substance he was given. A situation such as the above does indeed offend the conscious. The unknowing possession of a dangerous drug cannot be made criminal. State v. Brown, 389 So. 2d 48, 51 (La. 1980). By enacting section , the legislature clarified its intent to exclude guilty knowledge as an element of section Unlike Staples and Liparota, this Court can no longer construe the statute as including the element of guilty knowledge. Therefore, the statute violates due process and is unconstitutional on its face. See Liparota, 471 U.S. at 425 n.6 ( Congress must act within any applicable constitutional 20

28 constraints in defining criminal offenses. ); see also Siplin v. State, 972 So. 2d 982, 989 n.8 (Fla. 5th DCA 2007) ( Generally, it violates substantive due process to criminalize purely innocent conduct. ). The trial court in this case correctly found that section criminalizes innocent and constitutionally protected activity, and, as a strict liability crime with severe penalties, section cannot withstand constitutional scrutiny. 3. Because section does not provide notice, the statute violates due process and is unconstitutional. The trial court correctly found that section does not provide adequate notice and therefore violates due process. (V1/R36-38) The State, however, maintains: The trial court posits that the statute must require specific mens rea regarding the illicit nature of the substance because a defendant might not be aware of the actions of others which may have caused them to come into control of such substances. This type of notice is beyond the scope of due process. (Appellant s Br. at ) The State correctly notes that due process does not require notice of others actions. However, due process does demand notice of conduct that may expose an individual to criminal liability; without notice, an individual cannot foresee whether his or her actions (or inaction) may result in criminal sanctions. As the Court explained in Lambert v. California, 355 U.S. 225 (1957), this lack of notice, coupled with no requirement of mens rea, serves to unconstitutionally criminalize innocent 21

29 behavior. In Lambert, the defendant failed to comply with a felon registration ordinance. The ordinance did not include any element of willfulness. Id. at 227. The Court addressed whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge. Id. The Court held that the act violated due process: Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Id. at The Court reasoned that the statute proscribed wholly passive conduct, the mere failure to register. Id. at 228. It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed. Id. Thus, the ordinance failed to provide notice: Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act.... But the principle is equally appropriate where a person, wholly passive and unaware of any wrongdoing, is brought to the bar of justice for condemnation in a criminal case. Id. (emphasis added). Thus, in Lambert, the ordinance punished 22

30 entirely innocent inaction: Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. Id. at 229. In declaring the statute unconstitutional the Court found that [w]ere it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community. Id. at 231. Like Lambert, section punishes entirely innocent activity without notice. While section does provide notice that certain controlled substances may not be legally possessed or delivered, the statute, without a mens rea element, does not provide notice of what conduct may result in criminal condemnation. In United States v. Apollo Energies, Inc., 611 F.3d 679, 687 (10th Cir. 2010), the court, in discussing due process limitations on strict liability crimes, stated: [D]ue process requires citizens be given fair notice of what conduct is criminal.... However, even when a statute is specific about which acts are criminal, our due process analysis is not complete. When, as here, predicate acts which result in criminal violations are commonly and ordinarily not criminal, we must ask the fair notice question once again. The court noted that [c]entral to all of the Supreme Court s cases on the due process constraints on criminal statutes is foreseeability. Id. at 690. Because section requires no proof of guilty knowledge (knowledge of the illicit nature of the substance), individuals 23

31 cannot foresee what conduct may result in criminal liability. Because mens rea is not an element of section offenses, an individual simply has no way of knowing whether common and ordinary acts are criminal; guilty knowledge would normally alert an individual to the criminal nature of certain acts. This absence of constitutionally required notice serves to criminalize innocent behavior. Therefore, the trial court correctly found that, by failing to provide notice, section is unconstitutional. C. The affirmative defense provided for in section does not change the nature of section ; section remains a strict liability offense. Section provides: Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter , Fla. Stat. ( ). The State maintains that section does not impose strict liability because a defendant may raise this affirmative defense. The State relies on Morissette v. United States, 342 U.S. 246 (1952), and Kennedy v. Louisiana, 554 U.S. 407 (2008). (Appellant s Br. at ) However, Morissette only addressed whether a statute should be construed as requiring a mental element. 342 U.S. at Morissette did not address the effect of an affirmative defense on a strict liability crime. Further, in Morissette, the Court stressed the importance of requiring a mental element: The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of 24

32 law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child s familiar exculpatory But I didn t mean to, and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone s sweeping statement that to constitute any crime there must first be a vicious will. Id. at (footnotes omitted). Also, in Kennedy, the Court did not address whether the existence of an affirmative defense renders a strict liability statute something other than strict liability. In Kennedy, the Court only held that the Eighth Amendment prohibits the death penalty for the the rape of a child. 554 U.S. at 413. The State also maintains: In a true strict liability crime there is no defense to a defendant s actions... An example often given of such a strict liability crime is statutory rape which does not permit an affirmative defense of ignorance or mistake. (Appellant s Br. at ) The State relies on Flagg v. State, 36 Fla. L. Weekly D2276 (Fla. 1st DCA Oct. 13, 2011). In Flagg, the court stated that lack of knowledge is not a defense to a true strict liability crime. Id. However, [w]hether a statute is viewed as one of strict liability is determined by reference to its elements not available affirmative defenses. Shelton, 2011 WL at *11. 25

33 Thus, statutory rape is a strict liability crime not because mistake of age is no defense but because proof of knowledge of age is not an essential element of the crime. See 65 Am. Jur. 2d Rape 81 (2011) ( Generally, in the absence of statute, the defendant s knowledge of the age of the female is not an essential element of the crime of statutory rape, and therefore, it is no defense that the accused reasonably believed that the prosecutrix was of the age of consent. ). Therefore, because section expressly eliminated guilty knowledge as an element of section crimes, these offenses remain strict liability crimes. The affirmative defense does not change the elements of the crime; therefore, the affirmative defense does not change the statute s character to anything other than strict liability. D. Because the affirmative defense does not change the character of section , the affirmative defense does not render the statute constitutional. Absent the constitutionally required element of mens rea, section remains unconstitutional. Because the affirmative defense does nothing to cure the absence of this constitutionally required essential element, the affirmative defense does not render the statute constitutional. Unlike the statute, and accompanying affirmative defense, at issue in Patterson v. New York, 432 U.S. 197 (1977), section does violate due process. In Patterson, the defendant was charged with murder. In New York, [t]he crime of murder is defined by the statute... as causing the death of another person 26

34 with intent to do so. The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are either presumed or inferred in order to constitute the crime. Id. at The statute does provide an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation which, if proved by a preponderance of the evidence, would reduce the crime to manslaughter... Id. at 206. The Patterson Court addressed the constitutionality under the Fourteenth Amendment s Due Process Clause of burdening the defendant in a New York State murder trial with proving the affirmative defense of extreme emotional disturbance as defined by New York law. Id. at 198. The Court held: We cannot conclude that Patterson s conviction under the New York law deprived him of due process of law. Id. at 205. The Court recognized that the requirement of proof beyond a reasonable doubt in a criminal case is bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. Id. at 208 (quoting In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring)). However, the Court did not wish to disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the 27

35 defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required... Id. at 210. The Court nonetheless cautioned against possible abuses of affirmative defenses: This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go in this regard. Id. at 210 (emphasis added). In this case, because mens rea remains a constitutionally required element of section offenses, the legislature exceeded constitutional limits by eliminating guilty knowledge as an element and providing for an affirmative defense. Unlike Patterson, the legislature in this case unconstitutionally reallocated the burden of proof by expressly eliminating mens rea as an element of the crime. Professor LaFave describes the holding in Patterson as follows: [Patterson] appeared to mean... the outcome was determined merely by labels, so that the burden of proof could be put upon the defendant whenever the legislature was ingenious enough to characterize the matter as an affirmative defense. Not so, the Patterson majority objected, for there are obviously constitutional limits beyond which the States may not go.... [I]f the legislature could define a particular crime as consisting only of elements X and Y (rather than X and Y plus Z), then and only then may the legislature instead define the crime as X and Y but allow the defendant to prove non-z. 28

36 Wayne R. LaFave, Substantive Criminal Law, 3.4 (2d ed. 2003). Thus, because the legislature cannot constitutionally define section felony offenses without the element of knowledge of the illicit nature of the substance, the legislature cannot constitutionally eliminate this element, label this element an affirmative defense, and allow defendants the opportunity to prove lack of guilty knowledge. See also id. at 1.8 (noting that the constitutional limits alluded to in Patterson prevent the legislature from defin[ing] murder simply as the causing of another s death and then leav[ing] it to the defendant to prove the affirmative defense that he lacked any culpable mens rea ). Moreover, if a defendant raises the affirmative defense provided for in section , the State remains entitled to a permissive presumption: In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance (3), Fla. Stat. ( ). Prior to the enactment of section , this permissive presumption existed; however, prior to the enactment of section , guilty knowledge remained an element of the crime. See Scott v. State, 808 So. 2d 166, 172 (Fla. 2002) ( [K]knowledge of the illicit nature of the contraband is an element of the crime of possession of a controlled substance... Additionally, the [State v. Medlin, 273 So. 2d 394 (Fla. 1973)] presumption or 29

37 inference is applicable to those cases where the defendant has actual, personal possession of the substance. ). Thus, the burden to prove mens rea always remained with the State, and a defendant need not present any evidence. For example, in State v. Williamson, 813 So. 2d 61 (Fla. 2002), police searched the defendant and found some pills. The pills were marked Tylenol, and the word codeine was below the word Tylenol but could not be read without a microscope. Id. at 63. The defense presented no evidence, but, in closing, counsel for Williamson argued that his client had no idea what was in the pill bottle that he had taken. Id. This Court stated: While a conviction may be sustained in a personal possession case based on the Medlin presumption, the presumption may not be sufficient when there is other evidence which tends to negate the presumption. In this case, the State s own evidence, through the testimony of the crime lab analyst, demonstrated that Williamson may not have been aware of the ingredients in the pills he had taken since the word codeine could only be read with the help of a microscope. Id. at 64. This Court further found that the State proceeds at its own peril in relying on the presumption when there is evidence which tends to negate the presumption. Id. at 65. Thus, in Williamson, this Court emphasized that while the State remained entitled to a permissive inference, the burden to prove guilty knowledge never shifted to the defendant; the State proceeded at its own peril when its evidence failed to prove mens rea beyond a reasonable doubt. Section , by eliminating mens rea as an element of the crime and creating an affirmative 30