dissenting.
If — and the if is not a very big one — the statute and the statutorily ordained regulations 1 call for the usually accepted standard of criminal intent, I would readily concur in Judge Coffin’s excellent opinion for us.
Intent:
More Than A Six Letter Word
The trouble is, the statute with its legislatively mandated regulations, is quite to the contrary. In addition to 15 C.F.R. § 369.1(e)(4) and (5), quoted by the court,2 there is subsection (3) which I regard as critical and critically distinctive:
(3) [i] Intent is a necessary element of any violation of this Part, [ii] It is not sufficient that one take action that is specifically prohibited by this Part, [iii] It is essential that one take such action with intent to comply with, further, or support an unsanctioned foreign boycott. Accord*220ingly, a person who inadvertently, [iv] without boycott intent, takes a prohibited action, does not commit any violation of this Part.
(Emphasis and bracketed numbers added.)
It is here where the words of the District Judge, the words of the Congressionally mandated regulations and the words of the Supreme Court coalesce to compel a result of reversal, not affirmance.
The trial judge plainly stated:
at no time did he [Meyer] consciously intend to violate the laws of the United States or any applicable regulations established by the Commmerce Department.3
The Court in reaching affirmance reads these words to be nothing, or little more, than a paraphrasing of the usual rule that although Meyer did not consciously feel that he was violating the law, he did know that (i) he was doing the acts and that (ii) the law charges him with realizing that these acts were in violation of law.
The Supreme Court’s word comes in Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985).
To be sure, Liparota did not deal with the anti-boycott law. Rather, it dealt with a prosaic, not very spectacular situation of a crimeless crime that condemns one who “knowingly uses, transfers ... or possesses coupons [food stamps] ... in any manner non-authorized by [the statute] or the regulations.” 7 U.S.C. § 2024(b)(1).
As the Supreme Court points out, “[i]n submitting the case to the jury, the District Court rejected petitioner’s proposed ‘specific intent’ instruction.”4 Concluding that this was not a “specific intent crime,” the trial court charged:
When the word ‘knowingly’ is used ..., it means that the Defendant realized what he was doing, and was aware of the nature of his conduct, and did not act through ignorance, mistake, or accident.
Liparota v. United States, 471 U.S. at 422, 105 S.Ct. at 2086, 85 L.Ed.2d at 438 (footnote omitted).
To the further instruction that the Government had to prove that “ ‘the Defendant acquired and possessed food stamp coupons for cash in a manner not authorized by the federal statute or regulations[,]’ ” the Defendant objected that this instruction “required the jury to find merely that he knew that he was acquiring or possessing food stamps.” Id. at 422, 105 S.Ct. at 2086, 85 L.Ed.2d at 438. To the contrary, he argued “the statute should be construed instead to reach only ‘people who knew that they were acting unlawfully.’ ” Id. at 422-23, 105 S.Ct. at 2086, 85 L.Ed.2d at 438 (emphasis added).
Reviewing the Seventh Circuit’s affirmance, 735 F.2d 1044 (1984), the Court stated, “[t]he controversy between the parties concerns the mental state, if any, that the Government must show in proving that petitioner acted ‘in any manner not authorized by [the statute] or the regulations.’ ” Id. 471 U.S. at 423, 105 S.Ct. at 2087, 85 L.Ed.2d at 438.
The controversy was sharply divided. The Government contended that the Defendant “violated the statute if [i] he knew that he acquired or possessed food stamps and if [ii] in fact that acquisition or possession was in a manner not authorized by statute or regulations.... According to the Government, no mens rea or ‘evil-meaning mind’ is necessary.” Id. at 423, 105 S.Ct. at 2087, 85 L.Ed.2d at 438-39 (citation omitted) (bracketed numbers added).
To the contrary, the Defendant contended “that the Government’s interpretation, by dispensing with mens rea, dispenses with the only morally blameworthy element in the definition of the crime ... [and,] an individual violates the statute [only] if he knows that he has acquired ... food stamps and if he also knows that he has done so in an unauthorized manner.” Id. *221at 423, 105 S.Ct. at 2087, 85 L.Ed.2d at 439 (footnote omitted).
Recognizing that the elements of the crime (including the mental element) is one for Congressional determination and, hence, a judicial problem of statutory interpretation, the Court made this critical determination:
“[W]e believe that [the statute] requires a showing that the defendant knew his conduct to be unauthorized by statute or regulations.” Id. at 425, 105 S.Ct. at 2088, 85 L.Ed.2d at 440 (footnote omitted).
The upshot was that the “rule of lenity”5 directly supports the Defendant’s contention that to convict him under the statute the Government must prove that the defendant knew that what he was doing was in violation of the law. In the Court’s words, “the Government must prove knowledge of illegality” for conviction. Id. 471 U.S. at 427-28, 105 S.Ct. at 2089, 85 L.Ed. 2d at 441. The Court concluded:
We hold that in a prosecution for violation of [the Food Stamp Act] 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, 105 S.Ct. at 2092, 85 L.Ed.2d at 445 (footnote omitted).
The upshot is that the Court holds that where Congress or its specifically directed agency defines the crime in words requiring a consciousness of illegal action, the Government must sustain this burden to substantiate a verdict (finding) of guilty.
Subsection (3) of the Congressionally-mandated regulations on intent makes the principle of Liparota applicable to the anti-boycott provisions. Sentence [ii] of 15 C.F.R. § 369.1(e)(3) affirmatively states what is and is not sufficient to constitute a violation. What is not sufficient to constitute a violation is specifically a shorthand statement that negatively states the usual formulation that one intends the natural consequences of his/her acts. This is highlighted by sentence [iii] which makes it essential that the acts are performed with a specific purpose, intent to comply with, that is help carry out, a forbidden boycott. The affirmative statement in [iii] at the same time negatives the usual rule that one need only intend to do the act, i.e. mail the letter, etc. Finally, under sentence [iv] a person who “takes” any action which would be prohibited under the Act does not commit a “violation of this” Act unless he does so with a boycott intent.
In the light of Liparota, all of the § 369.1(e)(3) ingredients require that a person accused of anti-boycott violations must consciously be aware that what he is doing is in violation of the Anti-Boycott Act.
From Food Stamps To Trademark Registration
What was it that the misguided Meyer did here? As to any of these things is there a finding that he consciously knew that what he was doing was in violation of the anti-boycott provisions? First, Meyer received the Authorization of Agent Form which contained the Creed Declaration section. Next, Meyer completed the form and then mailed the completed form to the Saudi Arabian Embassy. Upon the Embassy’s request, Meyer attempted, through a Virginia associate, to obtain State Department notarization. The State Department declined to notarize the document on the grounds that it could not authenticate documents “relating to the Arab Boycott of Israel” and United States law “prohibits U.S. persons from providing certain boycott information.” Meyer’s Virginia associate then obtained United States Arab Chamber of Commerce notarization, as he explained to Meyer, “[a]fter failing to ob*222tain authentication by the State Department because of the Arab boycott.”
Next, Meyer advised his client of the notarization difficulties, specifically stating “that the Department of Commerce would not apply its Certificate because of the boycott provisions [and] that Saudi Arabia would not waive the boycott provisions.” Finally, Meyer sent the Authorization of Agent Form to the Saudi Arabian firm which processes trademark applications.
Indulgent, as we must be to the trier’s finding of guilt, the question remains: were any of these acts done by Attorney Meyer with a consciousness that they were illegal? The test for determining whether the finding of guilt can stand is whether there was sufficient evidence to establish beyond a reasonable doubt that the acts done by Attorney Meyer were done with a consciousness that they violated the anti-boycott statute. In words which could not have been plainer or clearer or more selective, the trial judge, as the trier, answered emphatically:
... at no time did he [Meyer] consciously intend to violate the laws of the United States or any applicable regulations established by the Commerce Department.
(Emphasis added.)
The anti-boycott statute construed as it must be in the light of Liparota requires the Government to prove that one charged with violations of the anti-boycott statute consciously did the acts knowing that they were a violation of the statute.
The Court’s findings of liability for the administratively imposed penalty being based on the usual standards of mens rea and not the Liparota standard of consciousness of violation of the law cannot stand.
The judgment should be reversed with directions to dismiss or, at a minimum, reversed and remanded for consideration in the light of the proper legal standards.
. See the Court’s opinion, n. 1 and related text.
. See the Court’s opinion at p. 218.
. See Court’s opinion p. 219 (emphasis added).
. The Court continued "[this] would have instructed the jury that the Government must prove that 'the defendants knowingly did an act which the law forbids, purposely intending to violate the law.’" Liparota v. United States, 471 U.S. 419, 422, 105 S.Ct. 2084, 2086, 85 L.Ed.2d 434, 438 (1985).
. The rule of lenity is the "general injunction that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.’ " United States v. United States Gypsum Co., 438 U.S. 422, 437, 98 S.Ct. 2864, 2873, 57 L.Ed.2d 854, 869 (1978) (quoting Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493, 497 (1971)). This lenity is reflected in the Court’s "generally inhospitable attitude” to strict liability offenses and its hesitancy to interpret Congressional silence on requisite intent as a directive that a strict liability standard was intended. Id. 438 U.S. at 437-38, 98 S.Ct. at 2874, 57 L.Ed.2d at 869-70.