There is no principle of criminal law more important than intent. Because we grant the government authority to take away our liberties if we do an act (or, in some instances, fail to act) defined by law as a crime, the government must prove beyond a reasonable doubt that we knew what we were doing and that what we were doing was unlawful. Too often, federal and state prosecutors chafe against this need to establish that an individual or an organization intended to commit a crime.
It’s not surprising, then, that prosecutors, with assistance from legislatures, have been working to erode this basic principle. WLF provides a wealth of examples of this in the Second Edition of our Special Report: The Federal Erosion of Business Civil Liberties. Also, a 2010 National Association of Criminal Defense Lawyers and Heritage Foundation study, “Without Intent (illuminated by a Guest Commentary on The Legal Pulse) found a disturbing pattern of Congress reducing the level of intent that need be proven for a federal crime, in some instances down to simple negligence or strict liability.
Our judicial branch is a criminal defendant’s last line of protection against the erosion of criminal intent. Case in point, just yesterday, a federal judge threw out an indictment against a former drug company in-house lawyer who allegedly violated federal law by facilitating the “marketing” of a drug for an off-label use. According to Judge Roger Titus’s ruling memo, during the grand jury proceedings, one prosecutor misstated the law with regards to the advice that the defendant may have received from other lawyers about the off-label communications, while another prosecutor flatly told the jury the issue was irrelevant to their deliberations. Quite to the contrary, Judge Titus wrote, “advice of counsel” is not only an affirmative defense, “but rather negates the wrongful intent required to commit the crimes charged.” Whether the prosecutors were, as the defense counsel in the case alleges, intentionally misstating the law, or were just negligent in doing so was not clear. Judge Titus dismissed the charges on that basis, though he did allow the government to seek a new indictment.
A WLF Legal Opinion Letter being released today highlights another example of prosecutorial attempts to evade criminal intent and the judiciary’s punishing response to such actions. Former Assistant U.S. Attorney Michael Volkov and his colleague Adeel Muhammad Bashir at the Mayer Brown LLP law firm detail the case of U.S. v. Goyal, where the government had charged a business executive with accounting fraud. The U.S. Court of Appeals for the Ninth Circuit ruled unanimously that the government had no evidence that Mr. Goyal wilfully violated the law. Judge Alex Kozinski was especially strong in his separate concurrence, writing that:
This case has consumed an inordinate amount of taxpayer resources, and has no doubt devastated the defendant’s personal and professional life. The defendant’s former employer also paid a price, footing a multimillion dollar bill for the defense. And, in the end, the government couldn’t prove that the defendant engaged in any criminal conduct. This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds.