Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-28-1995

United States v Hayden
Precedential or Non-Precedential:

Docket 94-3349




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           UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                     ___________

                     No. 94-3349
                     ___________



              UNITED STATES OF AMERICA

                         v.

                 WILLIAM O. HAYDEN,
                               Appellant


  _______________________________________________

  On Appeal from the United States District Court
     for the Western District of Pennsylvania
          (D.C. Criminal No. 94-cr-00021)
                ___________________


              Argued September 29, 1994

Before:   SCIRICA, NYGAARD and McKEE, Circuit Judges

               (Filed August 28, 1995)


                   KAREN S. GERLACH, ESQUIRE (ARGUED)
                   Office of Federal Public Defender
                   960 Penn Avenue
                   415 Convention Tower
                   Pittsburgh, Pennsylvania 15222

                     Attorney for Appellant


                   MICHAEL L. IVORY, ESQUIRE (ARGUED)
                   BONNIE R. SCHLUETER, ESQUIRE
                   Office of United States Attorney
                   633 U.S. Post Office & Courthouse
                   Pittsburgh, Pennsylvania 15219

                     Attorneys for Appellee



                          1
2
                          __________________

                        OPINION OF THE COURT
                         __________________


SCIRICA, Circuit Judge.



          Appellant William Hayden was convicted of receiving a

firearm while under a felony "information," 18 U.S.C. § 922(n)

(1988).   The issue on appeal is the meaning of "willfully" in the

statute's penalty provision, 18 U.S.C. § 924(a)(1)(D) (1988 &

Supp. V 1993).   We will reverse and remand.

                                   I.

          In January 1993, Pennsylvania authorities charged

Hayden with receiving stolen property and with the unauthorized

use of an automobile.     Hayden received a copy of the criminal

information, and he signed a form acknowledging receipt that was

captioned, in capital letters, "RECEIPT OF COPY OF INFORMATION."

Below the caption were the words, "I hereby certify that I have

received a copy of the information filed by the District Attorney

in the above-captioned action," and the accompanying document

states that "[t]he District Attorney of Allegheny County by this

information charges" Hayden with receiving stolen property and

unauthorized use of automobiles and other vehicles.

          A month after receiving the information, Hayden went to

a firearms dealer and inquired about purchasing a pistol.    The

dealer told Hayden that there was a waiting period and that the

Allegheny County Sheriff's Office and Pennsylvania State Police

would be notified.   Hayden then asked about purchasing a rifle.


                                  3
In response, the dealer told him he must give proper

identification, be eighteen years of age, and fill out a Bureau

of Alcohol, Tobacco, and Firearms Form 4473, which was subject to

ATF inspection.

          Hayden purchased an AK-47, a semiautomatic rifle with a

magazine capacity of one hundred rounds.   He also filled out a

Form 4473 which defined the meaning of the words "indictment" and

"information" and inquired:
          Are you under indictment or information*
          in any court for a crime punishable by
          imprisonment for a term exceeding one year?
          * A formal accusation of a crime made by a
          prosecuting attorney, as distinguished from
          an indictment presented by a grand jury.

Hayden answered "no" to this question, even though Form 4473

twice warned that it was unlawful to answer any of the


questions falsely, stating that "[a]n untruthful answer may

subject you to criminal prosecution."   Just above Hayden's

signature, the form provided the following certification:
          I understand that a person who answers "Yes"
          to any of the above questions is prohibited
          from purchasing and/or possessing a firearm,
          except as otherwise provided by Federal Law.
          I also understand that the making of any
          false oral or written statement or the
          exhibiting of any false or misrepresented
          identification with respect to this
          transaction is a crime punishable as a
          felony.

          The ATF ran a criminal history check on Hayden and

found the information pending in Allegheny County.     Hayden was

indicted and charged with one count of violating 18 U.S.C.




                               4
§ 922(n), receiving a firearm while under an indictment or

information.    At a non-jury trial, Hayden attempted to prove that

his low intelligence and reading ability prevented him from

understanding the document sent to him was an "information" and

that, in purchasing a gun, he did not know he was violating the

law.   The district court prevented such testimony from Hayden and

his experts, ruling that the government need not prove he knew he

was violating the law.    Hayden was convicted and sentenced to

eight months in prison, three years of supervised release, and a

$50 special assessment.

                                II.

           Hayden was charged under 18 U.S.C. § 922(n), which

provides as follows:
               It shall be unlawful for any person who
          is under indictment for a crime punishable by
          imprisonment for a term exceeding one year to
          ship or transport in interstate or foreign
          commerce any firearm or ammunition or receive
          any firearm or ammunition which has been
          shipped or transported in interstate or
          foreign commerce.

Section 922(n) has a corresponding penalty provision, found in 18

U.S.C. § 924(a)(1)(D), which provides:
          (a)(1) Except as otherwise provided in this
          subsection, subsection (b), (c), or (f) of
          this section, or in the section 929, whoever
          --

                (D) willfully violates any other
           provision of this chapter, shall be fined not
           more than $5,000, imprisoned not more than
           five years, or both. (emphasis added).

           The district court had jurisdiction under 18 U.S.C.

§3231 (1988).   We have jurisdiction under 28 U.S.C. § 1291



                                 5
(1988). Because § 924(a)(1)(D)'s willfulness language involves

statutory interpretation, our standard of review is plenary.

United States v. Meraz, 

, 183 (3d Cir. 1993).    We

review the trial court's evidentiary rulings for an abuse of

discretion.   United States v. Sampson, 

, 889 (3d Cir.

1992).

                                III.

          This case requires us to determine the meaning of the

term "willfully" in 18 U.S.C. § 924(a)(1)(D).    The government

contends that the term requires merely a purpose to commit the

prohibited act.    But Hayden alleges "willfully" also requires

that the government prove he intended to violate the law.     We

believe that either interpretation is plausible.    Cf. Rachael

Simonoff, Ratzlaf v. United States: The Meaning of "Willful" and

the Demands of Due Process, 28 Colum. J.L. & Soc. Probs. 397, 397

(1995) (citing Model Penal Code) ("[T]wo interpretations of

'willful' have developed.    The first interpretation requires

merely a purpose or willingness to commit the act.    The second

requires, in addition, an intent to violate the law itself."). As

the Supreme Court has noted, "'Willful' . . . is a 'word of many

meanings,' and 'its construction [is] often . . . influenced by

its context.'"    Ratzlaf v. United States, 

, 659
(1994) (citation omitted).

                                 A.

          In 1968, Congress barred persons convicted of or

indicted for serious crimes from receiving firearms as part of a




                                 6
comprehensive gun control package0 "enacted in response to the

precipitous rise in political assassinations, riots, and other

violent crimes involving firearms, that occurred in this country

in the 1960's."   Lewis v. United States, 

, 63 (1980).

The offense appeared to contain no scienter requirement,0 and

courts interpreted it as either requiring no specific intent0 or

no scienter at all.0

            Congress recognized later that without a mens rea

requirement, the law could inflict severe penalties upon persons

who unintentionally violated firearms offenses.    So it passed the

Firearms Owners' Protection Act of 1986, Pub. L. No. 99-308, 100

Stat. 449 (1986), which overhauled the system of firearms

offenses.   The Act "added a set of mens rea requirements by

amending section 924(a)(1) to punish certain violations only if

they are committed 'willfully' and others only if they are

committed 'knowingly.'"    United States v. Sherbondy, 865 F.2d


0
  Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No.
90-351, tit. IV, 82 Stat. 197, 225, 231 (1968), as amended by the
Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (1968)
(codified as amended at 18 U.S.C. §§ 921-928 (1970)).
0
  See United States v. Sherbondy, 

, 1001 (9th Cir.
1988) ("many of the firearms provisions were, on their face,
strict liability offenses" prior to their amendment in 1986).
0
  See, e.g., United States v. Weiler, 

, 477 (3d Cir.
1972) ("[W]e construe Section 922(g)(1) as a Congressional
determination . . . that the transportation of firearms in
interstate commerce by persons previously convicted of, or
charged with, serious crime presents a serious hazard to the
public welfare without regard to whether the one doing the
transporting knows of the Gun Control Act.").
0
  See, e.g., United States v. Quiroz, 

, 585 (9th Cir.
1971) (holding that defendants need not know their weapons were
"firearms," within the meaning of the statute, because
"§ 922(g), does not contain a scienter element").


                                 7
996, 1001 (9th Cir. 1988).   These new penalty provisions, which

affected a range of firearms offenses contained in § 922,

provide:
           § 924. Penalties
                (a)(1) Except as otherwise provided in
           this subsection, subsection (b), (c), or (f)
           of this section, or in section 929, whoever--

                    (A) knowingly makes any false
                    statement or representation with
                    respect to the information required
                    by this chapter to be kept in the
                    records of a person licensed under
                    this chapter or in applying for any
                    license or exemption or relief from
                    disability under the provisions of
                    this chapter;

                     (B) knowingly violates subsection
                     (a)(4), (a)(6), (f), (k), or (q) of
                     section 922;

                     (C) knowingly imports or brings
                     into the United States or any
                     possession thereof any firearm or
                     ammunition in violation of section
                     922(l); or

                     (D) willfully violates any other
                     provision of this chapter,

           shall be fined not more than $5,000, imprisoned not
           more than five years, or both.


18 U.S.C. § 924(a)(1) (1988 & Supp. V 1993) (emphasis added). The

"catch-all" provision, § 924(a)(1)(D), is applicable to the

offense for which Hayden was convicted, § 922(n), but it is not




                                8
apparent from the face of the statute what the phrase, "willfully

violates," is intended to mean.0

           It took seven years from the time the Firearm Owners'

Protection Act ("FOPA") was introduced in 1979 to its enactment

in 1986.   See David T. Hardy, The Firearms Owners' Protection

Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585,

585 (1987).   Despite contradictory signals from lawmakers, 

the most consistent interpretation of § 924(a)(1)(D) is


0
 A discussion between Judge Learned Hand and Herbert Wechsler,
the Reporter for the Model Penal Code, illustrates the difficulty
in interpreting "willfully" in criminal statutes:

                JUDGE HAND: Do you use . . . [wilfully]
           throughout? How often do you use it? It's a
           very dreadful word.

                MR. WECHSLER: We will never use it in
           the Code, but we are superimposing this on
           offenses outside the Code. It was for that
           purpose that I thought that this was useful.
           I would never use it.

                JUDGE HAND: Maybe it is useful. It's an
           awful word! It is one of the most
           troublesome words in a statute that I know.
           If I were to have the index purged, "wilful"
           would lead all the rest in spite of its being
           at the end of the alphabet.

                MR. WECHSLER: I agree with you Judge
           Hand, and I promise you unequivocally that
           the word will never be used in the definition
           of any offense in the Code. But because it
           is such a dreadful word and so common in the
           regulatory statutes, it seemed to me useful
           to superimpose some norm of meaning on it. .
           . .

Model Penal Code and Commentaries § 2.02, at 249 n.47 (Official
Draft and Revised Comments 1985) (quoting ALI Proceeding 160
(1955)).

                                   9
that Congress intended "willfully" to mean that a defendant must

know his conduct is illegal. As one author explained:
          Early versions of FOPA required a willful
          state of mind for any prosecutions. That
          this was understood to require knowledge of
          illegality is apparent from the report on S.
          1030. The division between "willful" for
          some offenses and "knowing" for others
          originated in the Treasury-NRA negotiations,
          and was specifically premised upon an
          understanding that proof of willfulness
          required proof that the defendant knew of the
          illegality of his conduct. . . . In light of
          these extensive considerations, it is
          impossible to avoid the conclusion that
          Congress was fully aware that its use of
          "willfully" in FOPA would require proof that
          the defendant actually knew of the illegality
          of his acts.

(footnotes omitted); cf. 

.   In fact, a House report criticized the bill for its

requirement of willfulness for some offenses, but noted that

"[p]roponents of the willfulness standard argue that the offenses

for which the standard would apply are mere regulatory offenses,

for which a conscious and specific intent to violate the law

should be required."   H.R. Rep. No. 495, 99th Cong. 2d Sess. 11

(1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1337.

           Perhaps more persuasive than the legislative history is

the statutory context in which the "willfully" language appears.

As we have explained, the penalty provision of § 924(a)(1)

requires defendants to "knowingly" act for offenses covered by

the first three subparts thereto, § 924(a)(1)(A)-(C), but

mandates they "willfully" violate the offenses covered by the

final subpart, § 924(a)(1)(D).   The Court of Appeals for the


                                 10
Seventh Circuit noted the significance of this distinction:

"Congress' use of the term 'willfully' in subsection (D)

indicates that it intended a scienter standard there that is

distinct from the 'knowingly' requirement of the previous three

subsections."   United States v. Obiechie, 

, 314 (7th

Cir. 1994).

          In defining "knowingly," courts have almost uniformly

rejected arguments that the term requires the defendant know his

conduct was unlawful; rather, they have interpreted "knowingly"

merely to require that the defendant know he was engaging in the

prohibited conduct.   

United States v. Hern, 

, 767 n.5 (8th Cir. 1991); 

-

03; United States v. Dancy, 

, 80-82 (5th Cir. 1988);

cf. United States v. Langley, No. 93-5219, 

(4th

Cir. Aug. 14, 1995) (en banc).   In light of the legislative

history, it is difficult to understand what more the "willfully"

language could require, if not knowledge of the law.   See, e.g.,

("In our view, the only reasonable

distinction between section 924(a)(1)'s 'knowingly' and

'willfully' standards is that the latter requires knowledge of

the law."); 

& n.6 (noting the defendant
"assumes, and the government does not dispute, that 'willful'

means an intentional violation of a known legal duty" and stating

"[w]e believe the legislative history is consistent with this

definition of willful").0   Therefore, because of the legislative

0
 Although we recognize the Court of Appeals for the Second
Circuit reached a contrary conclusion in United States v.

                                 11
history and the context in which "willfully" and "knowingly" were

added simultaneously to different provisions of the same

statutory subsection, we hold that "willfully" in § 924(a)(1)(D)

means the defendant must have acted with knowledge that his

conduct was unlawful.

                                  B.

          Hayden contends that our interpretation of "willfully"

here is controlled by the Supreme Court's decision in Ratzlaf v.

United States, 

(1994).      In Ratzlaf, the Supreme

Court reiterated "the venerable principle that ignorance of the

law generally is no defense to a criminal charge."     

see also Cheek v. United States, 

, 199 (1991) ("The

general rule that ignorance of the law or a mistake of law is no

defense to criminal prosecution is deeply rooted in the American

legal system.").     Nevertheless, Ratzlaf held that in particular

contexts, such as the case then before the Court, "Congress may

decree 

.

          We already have determined the definition of

"willfully" in § 924(a)(1)(D) requires that a defendant know his

conduct is unlawful, 

part III.A, just as the Ratzlaf
Court decided with regard to the statutes it construed.


Collins, 

, 76 (2d Cir.), cert. denied, 

(1992), we concur with the discussion of Collins in United States
v. Obiechie, 

, 315 (7th Cir. 1994) ("In reaching the
opposite conclusion in Collins, the Second Circuit neither
discussed Sherbondy and Hern, nor attempted to differentiate
between FOPA's 'knowingly' and 'willfully' standards. Indeed,
Collins failed even to note that FOPA applies a 'knowingly'
standard to some violations and a 'willfully' standard to
others.").


                                  12
Nevertheless, we believe the Ratzlaf analysis is neither useful

nor applicable here.

          As in this case, Ratzlaf involved two statutory

provisions, the first criminalizing the conduct and the second

designating the penalty.   Compare 18 U.S.C. §§ 922(n),

924(a)(1)(D) (at issue here) with 31 U.S.C. §§ 5324(a)(3),

5322(a) (at issue in Ratzlaf).   In Ratzlaf, the offense barred

transactions structured "for the purpose" of evading certain

federal financial reporting requirements.   31 U.S.C. §5324(a)(3).

Thus, the statute required that a defendant know he was evading

reporting requirements and intend to do so.   Section 5324's

corresponding penalty provision, § 5322(a), set out punishments

for persons "willfully violating" the statute.   The government,

however, contended that the "willfully violating" language of the

penalty provision meant nothing, that "the 5324 offense is just

what it would be if you never had 

n.7.

          The Supreme Court rejected that argument, holding that

courts should hesitate to treat statutory terms as "surplusage."

see also United States v. Zehrbach, 

,

1261 (3d Cir.) (in banc) ("The [Ratzlaf] Court found that failure
to read knowledge of illegality into a violation prosecuted under

§ 5322 would -- in light of § 5324's purposefulness requirement -

- treat '§ 5322(a)'s willfulness' requirement essentially as

surplusage."), cert. denied, 

(1995).     The Ratzlaf

Court also found it significant that courts of appeals

consistently had interpreted the § 5322 "willfulness"

requirement, as applied to other offenses in the same subchapter,


                                 13
to require both "'knowledge of the reporting requirement' and a

'specific intent to commit the crime,' i.e., 'a purpose to

disobey the 

(citations omitted).

Finally, the Court rejected the claim that "structuring is so

obviously 'evil' or inherently 'bad' that the 'willfulness'

requirement is satisfied irrespective of the defendant's

knowledge of the illegality of structuring."    

          The considerations the Supreme Court found persuasive

in Ratzlaf, however, are not present in this case.    There is no

attempt here to treat the language of the penalty statute as mere

"surplusage."   As we have noted, the criminal statute and

corresponding penalty provision in Ratzlaf both contained mens

rea requirements, the first requiring the conduct be done "for

the purpose of" evading federal reporting requirements and the

second penalizing those "willfully violating" the first.       See 31

U.S.C. §§ 5324(a)(3), 5322(a).    In this case, the criminal

statute contains no mens rea requirement; only the corresponding

penalty provision does.    See 18 U.S.C. §§ 922(n), 924(a)(1)(D).

In fact, Congress enacted the "willfully" language in the penalty

provision in 1986 to ensure that the firearms statutes contained

a mens rea element and would not be interpreted as strict

liability offenses.   

part III.A.   Therefore, even if we

had construed the "willfully" language here merely to require

that defendants know they are committing the prohibited act, we

would not be treating the term as "surplusage."0

0
 Besides its primary concern with treating statutory language as
"surplusage," the Ratzlaf Court noted two other factors it found


                                 14
          In support of his position that Ratzlaf controls this

case, Hayden cites our decision in United States v. Curran, 

(3d Cir. 1994), which applied the Ratzlaf willfulness

standard to violations of a federal false statements statute.       In

Curran, the defendant was convicted of causing election campaign

treasurers to submit false reports to the Federal Election

Commission in violation of 18 U.S.C. §§ 2(b) and 1001.    Section

1001 prohibits making false statements to a federal agency and

requires that "the government must prove that prohibited conduct

was performed 'knowingly and willfully.'"   

  Section



persuasive. First, it found significant the fact that the courts
of appeals consistently had interpreted the "willfully" language
in the applicable penalty statute to require a purpose to disobey
the law. 

, 659 (1994). In this case, however, the
courts of appeals are divided in their interpretation of § 924,
the penalty provision at issue. 

note 6.

          Second, the Court rejected the claim that currency
"structuring is so obviously 'evil' or inherently 'bad' that the
'willfulness' requirement is satisfied irrespective of the
defendant's knowledge of the illegality of structuring." 114 S.
Ct. at 662. This case involves firearms, which the Supreme Court
has determined are not generally such dangerous devices as to
"put gun owners on notice that they must determine at their
hazard" whether ownership of certain weapons would constitute a
crime. Staples v. United States, 

, 1798, 1800
(1994). This reasoning may not apply here, however, because
those indicted for or convicted of felonies are routinely subject
to restrictions not applicable to the general population; thus,
they may be held to be on notice of the need to determine whether
they are barred from certain ordinarily lawful conduct -- such as
gun ownership. Cf. Lewis v. United States, 

, 64
(1980) (noting that firearms control legislation "prohibits
categories of presumptively dangerous persons from transporting
or receiving firearms" and that "the fact of mere indictment is a
disabling circumstance" under 18 U.S.C. § 922(h), the statutory
predecessor to § 922(n)). Because the other factors persuasive
to the Supreme Court in Ratzlaf do not exist here, we need not
decide the applicability of this final factor.


                               15
2(b) provides that a person who "willfully causes" another person

to commit a criminal act is liable as a principal.    Because the

Curran defendant did not make the false statements himself, but

caused campaign treasurers to do so, the government proceeded

under "section 2(b) in tandem with section 1001."    

involved an interplay between two statutes, both

containing a willfulness requirement, just as in Ratzlaf.      As we

have noted, this interplay does not exist between the statutes

involved in this case.0

          We emphasize that Ratzlaf did not alter "the venerable

principle that ignorance of the law generally is no defense to a

criminal charge."   

.   In fact, Ratzlaf

"emphasized that its decision was particular to the plain meaning

of the statute then before it."    

0
 In Curran, we also noted that both it and Ratzlaf involved a
"defendant's knowledge of a third party's duty to disclose
information to a government agency." 

, 569 (3d Cir.
1994). In both cases, without the duty to disclose information
to the government, there would have been no offense. For
example, in Ratzlaf, the statute prohibited persons from acting
"for the purpose of evading the reporting requirements" of
structuring 

. Likewise, in Curran, 18
U.S.C. § 1001 prohibited persons from making false statements to
a federal agency or department, and 18 U.S.C. § 2(b) barred
persons from "willfully" causing others to commit a criminal act.
The liability in Curran resulted from the defendant causing
election campaign treasurers to submit false reports to the
Federal Election 

. Therefore, if
there had been no duty to disclose information in Curran and
Ratzlaf, then the defendants could not have committed those
offenses. In this case, however, Hayden was not charged with
making a false statement on Form 4473 or causing another person
to do so. He merely was charged with illegal receipt of a
firearm. Although his false statement on Form 4473 may be
relevant to prove whether he knew his conduct was illegal, it
does not constitute an element or even directly involve the
offense of which he was convicted.


                                  16
(citing Ratzlaf).   Therefore, for the reasons we have expressed,

we believe the Ratzlaf analysis is inapplicable here.0

                               IV.

           Although we believe that "willfully" in § 924(a)(1)(D)

means a defendant must have acted with knowledge that his conduct

was unlawful, the question remains what quantum of proof suffices

for a conviction.   In this case, as we have noted, the ATF Form

4473 provided a certification of the purchaser's knowledge:
          I understand that a person who answers "Yes"
          to any of the above questions is prohibited
          from purchasing and/or possessing a firearm,
          except as otherwise provided by Federal law.
          I also understand that the making of any
          false oral or written statement or the
          exhibiting of any false or misrepresented
          identification with respect to this
          transaction is a crime punishable as a
          felony.

Hayden's signature appears on the form immediately below these

words.   Absent a disability, such as mental incapacity or

illiteracy, this certification should be sufficient to prove

knowledge of the law under §§ 922(n) and 924(a)(1)(D).0

0
  We recognize that the Court of Appeals for the Seventh Circuit
relied on Ratzlaf in holding that the "willfully" language of §
924(a)(1)(D) required a defendant know his conduct was unlawful.
United States v. Obiechie, 

, 313-14 (7th Cir. 1994).
But Obiechie is not inconsistent with the result we have reached
here, because it merely followed Ratzlaf's command to interpret
willfulness "by considering the context of the term's use within
the overall structure of the statute," 

an analysis we
undertook in section III.A.
0
  Of course, a defendant's knowledge could be proven other than by
certification. The back of Form 4473 provides instruction for
cases when a "buyer is unable to read and/or write," and warns
that "[t]he transferor (seller) of a firearm is responsible for
determining the lawfulness of the transaction . . . ." This
frequently results in firearms owners reading aloud the questions
on Form 4473 to buyers unable to read. See infra part IV.B.


                                17
                                 A.

            Hayden contends his low intelligence and reading

ability constituted such a disability, preventing him from

understanding he was under indictment or information.    Hence, he

claims he did not know his conduct in purchasing the weapon was

unlawful.   But we have long recognized that defendants may not

avoid the knowledge requirement of criminal statutes merely by

ignoring the high probability they may be breaking the law.      See,

e.g., United States v. Caminos, 

, 365-66 (3d Cir.

1985) (holding knowledge requirement satisfied if "defendant

himself was subjectively aware of the high probability of the

fact in question").0

            This result comports with the rationale underlying the

requirement that a defendant know he has been indicted.    The

requirement that the possessor know his status is necessary


0
 Cf. United States v. Hester, 

, 803 n.4 (4th Cir.
1989) (citing Leary v. United States, 

, 46 n.93 (1969))
("[T]he [Supreme] Court has indicated general acceptance of the
proposition that awareness of 'a high probability' that a fact
exists may properly be equated with 'knowledge' in the
interpretation of criminal statutes."); United States v. Jewell,

, 700 (9th Cir.), cert. denied, 

(1976).

          In Hester, the court held that knowledge meant actual
knowledge or "deliberate disregard for its truth or falsity with
a conscious purpose to avoid learning the 

. We believe that this standard of "deliberate disregard
for [] truth or falsity with a conscious purpose to avoid
learning the truth" requires a defendant's subjective awareness
of the fact in question, in this case, that he is breaking the
law or that it is "high[ly] probab[le]" he is violating it. This
standard does not permit a conviction when a defendant is merely
negligent or reckless in failing to realize the unlawfulness of
his actions. See United States v. Caminos, 

, 365-66
(3d Cir. 1985).


                                 18
because of the "special circumstances that may surround one under

indictment, i.e., he may not be aware of the fact that he has

been indicted because of failure to serve him on a secret

indictment."   United States v. Renner, 

, 926 (6th

Cir. 1974); see also United States v. Ballentine, 

, 506

(7th Cir. 1993) ("Because there is a possibility that an

indictment will remain sealed, a knowledge requirement would

appear to be necessary to address the circumstance of a

defendant's receiving a firearm while subject to an undisclosed

sealed indictment.   Without such a requirement, there could be

unintended strict liability."), cert. denied, 

(1994).   Therefore, if a defendant knows he has been indicted or

deliberately avoids ascertaining his status, and thereafter

purchases a firearm, he will have satisfied the knowledge

requirement of § 922(n).0

0
 Section 922(n) applies to "any person who is under indictment
for a crime punishable by imprisonment for a term exceeding one
year." At oral argument, defendant's counsel asserted the
government also must prove Hayden knew the crime for which he was
under information carried a possible jail term of more than one
year. We disagree. In Staples v. United States, 

(1994), the Supreme Court interpreted 26 U.S.C. §5861(d), which
makes it unlawful for anyone "to receive or possess a firearm
which is not registered to him." The Court noted that United
States v. Freed, 

(1971), already had determined that
"§ 5861(d) does not require proof of knowledge that a firearm is

. Staples concluded that "our
determination that a defendant need not know that his weapon is
unregistered suggests no conclusion concerning whether § 5861(d)
requires the defendant to know of the features that make his
weapon a statutory 'firearm'; different elements of the same
offense can require different mental states." Id.; see also

, 613-14 (Brennan, J., concurring) ("[M]ens
rea is not a unitary concept, but may vary as to each element of
a crime . . . . To determine the mental element required for
conviction, each material element of the offense must be examined


                                19
                                 B.

            In this case, the district court prevented Hayden from

presenting evidence of his knowledge of the information.     Hayden

contends the precluded testimony as to his low intelligence and

reading levels would have established that he genuinely believed

he was not under an information or at least would have raised a

reasonable doubt in the jury's mind.

            Evidence of low intelligence and reading ability is

generally relevant in determining knowledge and is usually a jury

question.   In similar cases, some factfinders have not been

convinced by such evidence or have chosen to believe contrary

evidence offered by the government.    In United States v.

Fauntleroy, 

, 80-81 (4th Cir. 1973), the defendant

asserted an illiteracy defense when accused of knowingly making a

false statement to a firearm dealer on a Form 4473.    In

Fauntleroy, however, the dealer read the form to the defendant.

The court, in a non-jury trial, believed the defendant understood

the form's questions and determined he knowingly made a false



and the determination made what level of intent Congress intended
the Government to prove . . . ."). In this case, we believe the
length of possible imprisonment is a separate element of the §
922(n) offense, one for which the defendant need have no mens
rea. Cf. United States v. Yermian, 

(1984) (holding
that, in offense of making false statement within jurisdiction of
agency of United States, the federal agency element is a
jurisdictional requirement only and conviction does not require
the defendant knew of that element at the time of the offense);
United States v. Dancy, 

, 81-82 (5th Cir. 1988)
(holding that §922(g), which bars convicted felons from receiving
firearms transported through interstate commerce, does not
require proof that a defendant had knowledge the weapon had an
interstate nexus).


                                 20
statement.    See also United States v. Petitjean, 

,

1347 (7th Cir. 1989) ("[T]here was conflicting testimony as to

whether Petitjean was sufficiently literate to have read the ATF

Form 4473. . . .     [I]n finding Petitjean guilty, the jury

evidently rejected Petitjean's illiteracy defense."); United

States v. Heath, 

, 1070 (5th Cir. 1976) (upholding

conviction of illiterate defendant who made an "X" mark on a Form

4473 because "the jury must have credited the sales clerk's

testimony that he asked defendant the required questions and that

defendant responded falsely"); United States v. Brown, 

, 376 (6th Cir. 1972) (upholding false statement conviction in

case with dispute over whether gun shop owner had read Form 4473

to illiterate defendant because "determination of credibility was

within the province of the jury").

             We believe that Hayden's knowledge of whether he was

under an indictment or information was central to his defense and

indispensable to the factfinder in assessing whether he willfully

violated § 922(n).     Because the district court prevented Hayden

from offering such evidence regarding his low intelligence and

reading ability, we conclude the district court erred.0

                                  V.

          In sum, the government must prove Hayden knew or

deliberately disregarded the fact that he was under an


0
 Any use of expert testimony on remand must, of course, comply
with Federal Rule of Evidence 704(b) (barring expert from
offering "an opinion or inference as to whether the defendant did
or did not have the mental state or condition constituting an
element of the crime charged").

                                  21
information and that his purchase of a firearm was unlawful.

Because the excluded evidence had a direct bearing on willfulness

and was improperly excluded, we will reverse and remand.




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