[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
___________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14537 JULY 3, 2007
___________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 04-20490-CR-MGC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO KNIGHT,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Southern District of Florida
____________________________
(July 3, 2007)
Before TJOFLAT, FAY, and SILER,* Circuit Judges.
*
The Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
SILER, Circuit Judge:
Ricardo Knight, an alien resident of the United States, appeals his conviction
for improperly voting in a federal election, in violation of 18 U.S.C. § 611(a), a
misdemeanor. Knight contends that § 611 is unconstitutional because it fails to
incorporate a mens rea, and the district court improperly incorporated a general intent
mens rea into the offense. Additionally, Knight argues that the instructions given to
the grand jury that indicted him violated the Fifth Amendment. Because Knight’s
arguments lack merit, we AFFIRM.
I. BACKGROUND
Knight is a 32-year-old native of Jamaica. He came to the United States as a
minor with his parents. At sixteen, he became a legal permanent resident of the
United States.
In 1995, at the age of 22, Knight registered to vote in the United States, stating
under oath that he was a United States citizen. In 1997, he filed a petition to become
a United States citizen. That same year, he requested a replacement voter’s
registration card. On his signed application for the replacement card was the
question, “Are you a U.S. citizen?” Beside the question were two boxes, one for
“yes” and another for “no.” The “no” box had a check mark in it that had been
crossed through, and the “yes” box contained an unblemished check mark.
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In 2000, Knight voted in the United States presidential election. The next year,
immigration officials interviewed him in connection with his citizenship application.
He stated that he had registered to vote and had voted in a federal election. He also
told the immigration officials that he had never claimed to be a United States citizen.
When asked why he had registered and voted as a non-citizen, Knight stated that he
did not know that he had to be a United States citizen to register and vote.
Knight was later indicted by a federal grand jury for improperly voting in a
federal election based on his alienage, in violation of § 611. Prior to trial, Knight
moved to dismiss the indictment by challenging the instructions given to the grand
jury. The district court denied the motion, and the case proceeded to trial. Knight
was convicted of violating § 611 and was sentenced to one year of probation.
II. STANDARD OF REVIEW
We review a challenge to the constitutionality of a statute de novo. United
States v. Ballinger, 395 F.3d 1218, 1225 (11th Cir. 2005). The constitutionality of
the grand jury instructions present a question of law, which we also review de novo.
HGI Assocs., Inc. v. Wetmore Printing Co., 427 F.3d 867, 873 (11th Cir. 2005).
III. ANALYSIS
1. Constitutionality of § 611
Title 18, United States Code, § 611 (a), provides that:
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It shall be unlawful for any alien to vote in any election held solely or
in part for the purpose of electing a candidate for the office of President,
Vice President, Presidential elector, Member of the Senate, Member of
the House of Representatives, Delegate from the District of Columbia,
or Resident Commissioner, unless –
(1) the election is held partly for some other purpose;
(2) aliens are authorized to vote for such other purpose under a
State constitution or statute or a local ordinance; and
(3) voting for such other purpose is conducted independently of
voting for a candidate for such Federal offices, in such a manner
that an alien has the opportunity to vote for such other purpose,
but not an opportunity to vote for a candidate for any one or more
of such Federal offices.
Knight argues that § 611 violates his constitutional right to due process
because it is both overbroad and impermissibly vague. He contends that it
criminalizes two innocent acts, being an alien and voting, excluding any attendant
mens rea. In his view, the statute demonstrates Congress’s deliberate omission of a
mens rea, and therefore, this court is prevented from reading an implied mens rea into
the statute. Knight goes on to argue that even if the court does incorporate a mens
rea into the statute, it would have to be a specific intent crime in order to properly
separate wrongful conduct from innocent conduct. We reject these arguments.
Section 611 is a constitutional general intent crime. “Some indication of
congressional intent, express or implied, is required to dispense with mens rea as an
element of a crime.” Staples v. United States, 511 U.S. 600, 605 (1994). The text of
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§ 611 does not use the language typically associated with the creation of a specific
or general intent offense because it does not utilize adverbs such as “intentional,”
“knowing,” or “willful.” See Morissette v. United States, 342 U.S. 250, 264 (1952).
Given this omission, we are to presume that Congress “legislated against the
background of our traditional legal concepts which render intent a critical factor.”
United States v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978). This court may “read
a state-of-mind component into an offense even when the statutory definition did not
in its terms so provide.” Staples, 511 U.S. at 605. The existence of a mens rea is “the
rule of, rather than the exception to, the principles of Anglo-American criminal
jurisprudence.” Gypsum, 438 U.S. at 437-38. Therefore, Knight’s due process rights
were not violated by a deliberate omission of a mens rea by Congress.
We must now determine the appropriate mens rea to read into § 611. United
States v. Henry, 111 F.3d 111, 113 (11th Cir. 1997) (“where a statute is silent as to
intent, it becomes a question of legislative intent to be construed by the court”).
Section 611 is a general intent crime. In Henry, we found that an immigration statute,
which was silent as to intent, was a general intent crime. Id.
While Knight maintains that we must read a specific intent mens rea into § 611
in order to properly separate wrongful conduct from innocent conduct, a general
intent requirement satisfies this goal. See Staples, 530 U.S. at 610. As a general
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intent crime, the government must still prove that the defendant knowingly engaged
in the conduct prohibited by § 611. See United States v. Phillips, 19 F.3d 1565, 1576
(11th Cir. 1994). This is sufficient to separate proper conduct from improper actions.
The district court found § 611 to be a constitutionally-sound general intent
offense. We agree. Thus, we affirm the district court on the statutory claim.
2. Constitutionality of the Grand Jury Instructions
The portions of the grand jury instructions that Knight challenges are as
follows:
The case that comes before you will arise in various ways. Frequently
suspects are arrested on the scene, so to speak, during or shortly after an
alleged crime is committed. They are taken before a judicial officer
known as a magistrate judge before you become involved in the case.
The United States magistrate judge holds a preliminary hearing to
determine whether there is probable cause to believe that a crime was
committed and that the accused committed it. If the magistrate judge
finds such probable cause, the accused will be held for the action of the
Grand Jury so that you can consider whether probable cause exists and
an indictment should be issued.
***
While you would perform a disservice if you did not indict where the
evidence justifies an indictment, you would violate your oath if you
merely rubber stamped the indictment brought before you by the
government representatives.
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These instructions were based upon the Model Jury Instructions.1
Knight agues that his Fifth Amendment rights were violated because the
instructions improperly limited the grand jury’s duty to determine probable cause and
deprived the grand jury of the option not to indict. Specifically, he contends the
instructions were improper in two ways. First, the instructions implied to the grand
jury that a federal magistrate judge had already determined probable cause. Second,
the instructions essentially prohibited the grand jury from withholding an indictment
where the evidence might support it. Knight contends that these two errors taken
together deprived him of an independent grand jury. These arguments are meritless.
In United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) (en banc),
the court considered the model jury instructions and upheld them as constitutional.
Id. at 1208. The Ninth Circuit concluded that there was no constitutional violation
in instructing jurors that they could not question the wisdom of the law, or that the
jurors should, rather than could, indict if sufficient evidence was presented. Id.
1
The Model Instructions are as follows:
You cannot judge the wisdom of the criminal laws enacted by Congress, that
is, whether or not there should or should not be a federal law designating
certain activity as criminal. That is to be determined by Congress and not by
you. (The “wisdom of the law” instruction).
Furthermore, when deciding whether or not to indict, you should not be
concerned about punishment in the event of conviction. Judges alone
determine punishment. (The “punishment” instruction).
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We follow Navarro-Vargas because its reasoning is sound. The grand jury
instructions in this case are significantly similar to the Navarro-Vargas instructions.
The grand jury could easily understand it was independent from the court and could
indict or not based upon the evidence. Thus, there was no constitutional violation in
the grand jury instructions in this case.
IV. CONCLUSION
Section 611 is a general intent crime. It is not unconstitutional merely because
the congressional drafters did not specifically articulate a mens rea. There was also
no constitutional violation in the grand jury instructions.
AFFIRMED.
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