How Much Do You Really Have to Know?: An Analysis of the Mens Rea Requirement of 21 U.S.C. § 841(c)(2)

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INTRODUCTION

The average American is undoubtedly familiar with the decongestant Sudafed. Often employed to treat symptoms of the common cold and allergies, Sudafed is a household name. When most people purchase Sudafed at their local drug store, however, they are often unaware that their fellow customers may not be buying the medicine to nurse their cold symptoms. In fact, many are not aware of the black market that exists for Sudafed. The active ingredient in Sudafed, pseudoephedrine, is used in the manufacturing of methamphetamine, a highly addictive, illegal stimulant that typically causes neurological damage in its users.1 Methamphetamine producers often purchase bulk quantities of pseudoephedrine, and the DEA is currently unaware of any other legitimate or black market use for large amounts of pseudoephedrine.2 To ensure that lawful chemicals that are readily available, such as pseudoephedrine, are not diverted into illegal channels such as methamphetamine production, Congress enacted 21 U.S.C. § 841(c)(2). This statute criminalizes the possession or distribution of certain chemicals when the defendant knew, or had reasonable cause to believe, that such chemicals would be used to manufacture a controlled substance.3

A well-established maxim in criminal law is actus non facit reum, nisi mens sit rea, "an act does not make [its doer] guilty, unless the mind be guilty."4 It is axiomatic in American criminal jurisprudence that punishment is proper only when an individual has committed the physical act and had the mental state required by the statute defining the crime.5 Certain crimes require that the defendant intended the result of his physical act, predicating conviction on the defendant's subjective, or actual, objectives.6 Other crimes, however, focus on the mindset of the reasonable person in the defendant's situation, allowing the prosecution to prove guilt based upon objective knowledge.7 When drafting statutes, Congress often includes more than one requisite mental state, or mens rea; in such a case, a defendant may be found guilty if he possessed either of the named mentes reae.8 Title 21, section 841(c)(2) is one such statute, criminalizing the possession or distribution of certain chemicals when the defendant knew, or had reasonable cause to believe, that the chemicals would be used to manufacture a controlled substance.9 Black market sellers of pseudoephedrine, or other chemicals used to make controlled substances, can be convicted of violating 21 U.S.C. § 841(c)(2) if they do so knowing or having reasonable cause to believe that their purchasers will use the chemicals to produce a controlled substance.10

To answer the question of whether a particular defendant violated 21 U.S.C. § 841(c)(2), a court must ascertain the meaning of the requisite mens rea: "knowing or having reasonable cause to believe." Specifically, the court must determine whether this phrase implicates an entirely subjective standard or, instead, allows a defendant's conviction to be based on either subjective or objective knowledge of his purchaser's intent. This decision is often crucial in whether a defendant is found guilty, as a defendant who only possessed objective knowledge would be innocent in a jurisdiction that adopts a wholly subjective standard; the same defendant, however, would be convicted in a court that holds that guilt may be predicated on objective fault.11 Currently, the circuit courts have failed to adopt a uniform understanding of 21 U.S.C. § 841(c)(2)'s mens rea.12 A consistent interpretation is needed to ensure that a defendant's guilt or innocence is not determined simply by the court in which he is tried.

The varying interpretations of the mens rea of 21 U.S.C. § 841(c)(2) have been at issue in the circuit courts for a number of years. While one circuit has held that the standard is wholly subjective, others have ruled that the statute's language allows for either a subjective or objective finding of knowledge on the part of the defendant, and one circuit has failed to adopt a conclusive stance on the issue. …