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58–476 PDF 2010

REINING IN OVERCRIMINALIZATION: ASSESSING 

THE PROBLEM, PROPOSING SOLUTIONS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 28, 2010 

Serial No. 111–151 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DANIEL MAFFEI, New York 

JARED POLIS, Colorado 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

PEDRO PIERLUISI, Puerto Rico 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

ANTHONY D. WEINER, New York 

MIKE QUIGLEY, Illinois 

TED DEUTCH, Florida 

LOUIE GOHMERT, Texas 

TED POE, Texas 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TOM ROONEY, Florida 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 

(III) 

C O N T E N T S 

SEPTEMBER 28, 2010 

Page 

OPENING STATEMENTS 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 5 

The Honorable Ted Poe, a Representative in Congress from the State of 

Texas, and Member, Subcommittee on Crime, Terrorism, and Homeland 

Security ................................................................................................................. 8 

WITNESSES 

Mr. Jim E. Lavine, President, National Association of Criminal Defense Lawyers, Washington, DC 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 14 

Mr. Robert ‘‘Bobby’’ Unser, Personal Impact Witness, Albuquerque, NM 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 25 

Mr. Abner Schoenwetter, Personal Impact Witness, Pinecrest, FL 

Oral Testimony ..................................................................................................... 35 

Prepared Statement ............................................................................................. 38 

Mr. Brian W. Walsh, Senior Legal Research Fellow, The Heritage Foundation, 

Washington, DC 

Oral Testimony ..................................................................................................... 46 

Prepared Statement ............................................................................................. 49 

Mr. Stephen F. Smith, Professor of Law, University of Notre Dame Law 

School, Notre Dame, IN 

Oral Testimony ..................................................................................................... 62 

Prepared Statement ............................................................................................. 64 

Ms. Ellen S. Podgor, LeRoy Highbaugh, Senior Research Chair and Professor 

of Law, Stetson University College of Law, Gulfport, FL 

Oral Testimony ..................................................................................................... 86 

Prepared Statement ............................................................................................. 88 

Mr. Andrew Weissmann, Partner, Jenner & Block, LLP, New York, NY 

Oral Testimony ..................................................................................................... 95 

Prepared Statement ............................................................................................. 98 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Chairman, Committee on 

the Judiciary ......................................................................................................... 6 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 115 

(1) 

REINING IN OVERCRIMINALIZATION: ASSESSING THE PROBLEM, PROPOSING SOLUTIONS 

TUESDAY, SEPTEMBER 28, 2010 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 3:03 p.m., in room 

2141, Rayburn House Office Building, Honorable Robert C. ‘‘Bobby’’ 

Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Conyers, Gohmert, and Poe. 

Staff Present: (Majority) Bobby Vassar, Subcommittee Chief 

Counsel; Ron LeGrand, Counsel; Veronica Eligan, Professional 

Staff Member; and (Minority) Caroline Lynch, Counsel. 

Mr. SCOTT. The Subcommittee will now come to order. 

I am pleased to welcome you today to today’s hearing before the 

Subcommittee on Crime, Terrorism, and Homeland Security. Today’s topic is Reining in Overcriminalization: Assessing the Problem, Proposing Solutions. 

Last year, on July 22, the Subcommittee conducted a hearing titled Over-Criminalization of Conduct/Over-Federalization of Criminal Law. That hearing occurred as a result of a series of conversations that Ranking Member Gohmert and I had with former Attorney General Ed Meese and a coalition of organizations, including 

the Washington Legal Foundation, the National Association of 

Criminal Defense Lawyers, the Heritage Foundation, the ACLU, 

the American Bar Association, the Federalist Society, and others. 

They came to Congress to seek a hearing to discuss the practice 

and process of enacting Federal criminal law; and they came out 

of concern for what they, and many others, viewed as an astounding rate of growth of the Federal criminal code. 

Testimony from last year’s hearing served as a disturbing illustration of the harm that can and does result from the enactment 

of poorly conceived legislation. A year later, they still question the 

wisdom of continuing the expansion of the criminal code without 

first taking time to consider and review the process by which Federal crime legislation is enacted. 

But more than the rate of the Federal criminal code’s growth, 

these concerned citizens and groups remain alarmed about the deterioration that has occurred in the standards of what constitutes 

a criminal offense. There is great concern about the overreach and 

perceived lack of specificity in criminal law standards, i.e. the 

2 

vagueness and the disappearance of the common law requirement 

of mens rea, or guilty mind. 

Today’s hearing is supported by a similarly broad group of organizations, and we will continue our examination of the issue with 

a discussion of a draft of their own legislative proposal and review 

of the findings of a joint study by the National Association of 

Criminal Defense Lawyers and the Heritage Foundation entitled 

‘‘Without Intent, How Congress Is Eroding the Criminal Intent Requirement in Federal Law.’’ 

The legislative proposal is notable not only for its content but 

also for the fact that such seemingly odd political bedfellows can 

come together on this common ground issue. The Without Intent 

report is a remarkable nonpartisan study that raises important 

questions about the proper role of the Federal criminal code and 

also documents problems that I cited at last year’s hearing: vagueness in criminal law standards and the disturbing disappearance 

of the common law requirement of mens rea. 

As all of you by now are familiar with my position on crime policy generally, I have been in office for 30 years, and I have learned 

that when it comes to crime policy you generally have a choice. You 

can prosecute and incarcerate people for so-called crimes, or you 

can utilize available civil remedies to handle minor infractions. You 

can do the things that research and evidence have proven will reduce crime and enact legislation that provides clear and fair notice 

of what constitutes criminal acts, or we can play politics as usual 

with the emotionally charged sound bites and slogans that sound 

good but prove not to be sound policy. 

These kinds of things include mandatory minimum sentencing; 

three strikes and you’re out; and after that didn’t work, two strikes 

and you’re out; life without parole; abolish parole; or if it rhymes 

it’s even better, if you do the adult crime, you do the adult time. 

None of those have been shown to reduce the crime rate; and, in 

fact, the adult crime and time slogan, all of the studies have shown 

that if you codify that sound bite you will actually increase the 

crime rate. 

We can see the impact of the unfair and vague legislation at the 

hands of overzealous prosecutors when we look at the prison population. We now have on a daily basis over 2.3 million people locked 

up in our Nation’s prisons, a 500 percent increase over the last 30 

years. The Pew Foundation has estimated that any incarceration 

rate over 500 per hundred thousand is actually counterproductive. 

This massive increase in the number of Americans incarcerated has 

very little documented positive effect on public safety, while it contributes significantly to family disruption and other problems in 

many American communities. In fact, we incarcerate now at such 

a high rate that it is actually contributing to crime. 

We must continue to work on legislation to bring some common 

sense to enacting Federal criminal law in sentencing. We must put 

an end to the notion that we need to prosecute every individual for 

every perceived offense and incarcerate every defendant for the 

longest possible time. We now lock up not 500 per hundred thousand but over 700 per hundred thousand in the United States, 

seven times the world average. And now, as we’ll hear today, we 

3 

continue to lock up people for offenses that should not even require 

incarceration. 

So the problem has been identified, the challenge is clear, and 

our purpose today is to hear from experts, practitioners, and those 

who have been personally impacted by vague and unfair laws about 

what Congress can do to enact criminal legislation that is fair, provides notice, and is truly necessary. Congress already knows how 

to play politics, but we need do things that will actually reduce 

crime in a fair way. 

It is now my pleasure to recognize the esteemed Ranking Member of the Subcommittee, my colleague from Texas’s First Congressional District, the Honorable Louie Gohmert, Ranking Member of 

the Subcommittee. 

Mr. GOHMERT. Thank you, Chairman Scott. Thank you for calling 

this hearing today. This obviously is the second hearing we have 

had in the Subcommittee on overcriminalization, and that is a topic 

of particular importance to me. 

I also want to welcome the witnesses here today and thank you 

for your tireless work and dedication to this issue. Organizations 

including the Heritage Foundation, the National Association of 

Criminal Defense Lawyers, the ACLU, Cato Institute, American 

Bar Association and others have joined together to address overcriminalization and overfederalization. 

Now, Chairman Scott and I have differing views on the approach 

to true crimes. In Texas, when you had judges like Judge Ted Poe 

and Louie Gohmert on the district bench and we were locking up 

increasing numbers of people for violent crime, we saw our crime 

rate go down all through that period. So I know in some places 

maybe it’s just you got the right law enforcement. I’m not sure. But 

I know we incarcerated in higher numbers those that were committing violent crimes, and the crime rates did go down. 

But what we’re talking about in this hearing today are things 

that should not be offenses, things that shouldn’t carry criminal 

sentences as a result of an activity, particularly when there is no 

mens rea, there is no intent—and from something as minor as failing to stick a sticker on a package with an airplane and a line 

through it when you have already checked the box that indicates 

by ground only. 

But our witnesses have spent so much time studying this issue 

and preparing recommendations to Congress; and I hope my colleague, Chairman Scott, and I and others on this Subcommittee 

will be able to get our colleagues to move forward with many of the 

proposals that you have made for us. 

I would also like to take a moment to welcome two of our witnesses here today, Bobby Unser and Abbie Schoenwetter, who have 

experienced firsthand the consequences of overcriminalization. Mr. 

Unser was convicted of operating a motorized vehicle inside a national wilderness area after becoming disoriented during a blizzard 

that nearly cost him his life. Mr. Schoenwetter was just recently 

released from over 8 years in prison for purchasing lobster tails not 

in violation of U.S. regulations but in violation of Honduran regulations, a charge even the Honduran Government disputed. 

The evolution of the Internet and 24-hour news cycles has in 

some respects blurred the lines between State and Federal law. 

4 

American communities may suffer an increase in gang activity, car 

theft, or sexual assault and call upon their representatives in 

Washington to respond, though these are normally local crimes. 

Unfortunately, many in Congress are eager to respond to the 

urgings of their constituents, often without due regard for the proper elements of a criminal statute or other existing Federal and 

State laws. The result is a labyrinth of Federal criminal laws scattered throughout many of the 50 titles of the U.S. Code, and much 

of this occurs despite the fact that the Federal Government lacks 

a general police power. 

To be sure, there are areas of legitimate jurisdiction within 

which Congress can and should prohibit criminal conduct. Congress 

has authority to regulate crime in the special maritime and territorial jurisdiction, crime occurring on Federal lands, and crime 

within interstate or foreign commerce. Today, there are an estimated 4,500 or so Federal crimes on the books and still many more 

regulations and rules that, if not abided by, result in criminal penalties, including incarceration. However, many of these laws impose criminal penalties, often felony penalties, for violations of Federal regulations. 

As a former prosecutor and judge, I support the common law 

tenet that ignorance of the law is not a defense, and this tenet 

rings true for crimes which are categorized as malum in se, are 

they just wrong of their own. We expect members of civilized society to know it is wrong to commit murder or burglary or engage 

in an act of terrorism, regardless of what the law says, but today 

Americans must contend with literally thousands of obscure and 

cumbersome Federal regulations. And, as our witnesses today can 

attest, a simple misreading of a regulation or ignorance of a regulation can land a person in prison. 

Our witnesses today will note that a great number of these regulations lack an important element, criminal intent. But an even 

more fundamental issue is raised by such regulations, and that is 

whether the prohibited conduct is even criminal in the first place. 

Should the importation of certain goods such as lobsters or orchids 

in violation of Federal or even U.S. regulation be met with criminal 

sanctions or should it instead be met with civil penalties? Should 

only habitual violations be criminalized or only such violations that 

result in personal or property damage? And perhaps most important, shouldn’t most, if not all, Federal crimes include at least some 

form of intent to do wrong? Once these important policy considerations are answered, then we can turn to properly constructing the 

elements of criminality. 

The growth in criminal regulations has produced a side effect, so 

to speak, that is equally disconcerting, an increasing number of 

Federal agencies empowered to investigate these so-called criminal 

activities. We are all used to hearing about the investigations by 

the FBI, DEA, or Customs agents. But what about investigations 

by the National Marine Fisheries Service within the National Oceanic and Atmospheric Administration or an EPA SWAT team that 

runs someone off the road, throws them to the ground because he 

failed to put a sticker on a package? 

This agency of the National Marine Fisheries Service is the agency that uncovered the Honduran regulations that Mr. Schoenwetter 

5 

is alleged to have violated. I say ‘‘alleged’’, even though he has done 

time in prison. That still is an issue. 

People also may be surprised to learn that the Food and Drug 

Administration has an Office of Criminal Investigations or that 

Medicare fraud is hunted down by agents within the Health and 

Human Services Office of Inspector General. 

I mean no disrespect to the men and women of these offices. I 

only cite them as a means to highlight my concern and why I appreciate Chairman Bobby Scott calling this hearing, that concern 

being that along with broad, sweeping criminal regulations comes 

a host of investigative agencies eager to enforce them and we’ve 

seen over and over overly eager at times to enforce them. 

There’s a well-known saying that a prosecutor would rather let 

100 criminals go free than to send one innocent person to jail, but 

I am concerned that criminal regulations and poorly drafted laws 

may be responsible for sending more than just one innocent person 

to prison. 

I do look forward to hearing from our witnesses and appreciate 

your helping us bring attention to this issue so that we can convince people on both sides of the aisle. Because people on both 

sides of the aisle are responsible. Trying to show America that we 

know how to fix these things, we will slap a prison sentence on it 

when it’s not fixing it, it’s in fact creating even more issues of faith 

in our Federal Government. We need to get back to those issues 

that are within the constitutional mandate for Congress to take 

care of, not allow regulators to pass regulations that become criminal laws to get people put in jail. 

I look forward to hearing your testimony and yield back my time. 

Thank you. 

Mr. SCOTT. Thank you. 

We have been joined by the distinguished Chairman of the full 

Committee, the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Scott, and the two judges 

that are here with us, former prosecutors, also. I am delighted to 

be with you. I think this is an important hearing, and I am glad 

that you have enough witnesses to help us prove the point. Seven, 

that’s a pretty good number to start us off. 

My emphasis on this subject is more directed to the way that we 

are using the drug war to incarcerate people in the United States. 

We have now over 2 million people imprisoned, which makes us the 

number one incarcerator of its people in the world. Sixty-eight percent of the people arrested are tested positive for drugs. So what 

we need are drug courts that provide diversion and treatment rather than mandatory sentences, which this Committee has worked on 

for so many years. 

My concern is that there may be a tendency of my beloved Administration to propose to spend even more money on law enforcement than on treating the drug problem as a crisis. So it’s in that 

sense that I hope some of these seven witnesses will enlarge upon 

this point that I make in my opening statement, and I will put the 

rest of my statement in the record. 

Thank you very much. 

[The prepared statement of Mr. Conyers follows:] 

6 


JCJ-1.eps
7 


JCJ-2.eps
8 

Mr. SCOTT. Thank you, Mr. Chairman. 

I understand that Judge Poe has a statement. 

Mr. POE. Thank you, Mr. Chairman. Thank you for holding this 

hearing and Judge Gohmert for putting this hearing together again 

today. 

I welcome all the witnesses. Good to see Jim Lavine here today, 

a long-time practicing lawyer, excellent lawyer in Texas. Twentytwo years on the criminal bench in Texas. 


JCJ-3.eps
9 

You know, in Texas almost everything’s a crime, and almost all 

of them are felonies. Years ago, we operated under the penal code 

of 1925, which really hammered folks. You know, you leave your 

wire cutters in your saddle bags and you are off to the penitentiary. A marijuana cigarette could get you life in the penitentiary 

of the State of Texas. And numerous crimes like that. And, finally, 

the State got together and decided some things ought to be felonies, 

some ought to be misdemeanors, and some shouldn’t be crimes at 

all. 

I say that to say that we are in the Federal system now, where 

the general jurisdiction and philosophy for criminal conduct was to 

be done in State courts. The States were to decide how they wanted 

to punish folks, either making something a crime or not, and the 

Federal Government was to take other roles. 

We’ve come a long way since the piracy laws and the kidnapping 

laws and the bank robbery laws, and now we have 4,450 Federal 

crimes, and, once again, we are in the situation where everything’s 

a Federal crime. And I think that it’s time that we deal with this 

and make some realistic decisions and also prioritize what the role 

of the Federal Government is in labeling things a crime and even 

reconsider this whole concept of the sentencing guidelines, which 

tend to be I think arbitrary in many cases. So we need to make 

the decisions what should be Federal crimes, what should be handled by local and State authorities, and even reduce or change to 

some type of civil sanctions. I agree with my friend Judge Gohmert 

on those issues. 

We have many compelling cases before us. I just want to mention 

one Federal case that happened recently that is worthy of mention. 

In Iowa, there was a kosher slaughterhouse operated by Sholom 

Rubashkin, and he was sentenced to 27 years in the Federal penitentiary for some financial crimes. He was investigated for immigration violations, charged with 9,311 charges. Over 9,250 of those 

charges were dismissed, and he still went to the penitentiary for 

27 years because he violated that law, that sacred law that’s the 

Packers and Stockyard Act for not paying cattle suppliers within 

24 hours of delivery of the cattle—dastardly deed—and got him 27 

summers in the Federal penitentiary. He was prosecuted even 

though all cattle suppliers were paid in full, and the latest was just 

paid 11 days late. But that was a felony, and it is a felony still. 

He is the only person I know of prosecuted under this act that was 

passed in 1921. 

So this is an example of I think really an abusive law. Probably 

our slaughterhouse operators, if there are any left in the country, 

don’t even know this law exists, but they better pay those bills on 

time. 

I’m not going to get into all the complexities of his case, but his 

sentence was considered excessive by a lot of people. I am one of 

them. And it was even 2 years longer than the prosecutors asked 

for. So the Federal judge really was upset about not paying those 

bills on time. And his account—no, I am not justifying any of the 

conduct, but financial crimes don’t seem to be related to the situation which he was originally charged for, which was immigration 

allegations. So he is at 51 years of age, and he is doing, in essence, 

10 

a life prison sentence in the Federal penitentiary. We probably 

need that space for somebody that’s just really an outlaw. 

But, once again, example after example of Federal cases, Federal 

prosecution where maybe the system needs to look again at these 

4,500 crimes under the Federal system and then make sure that 

when we have somebody that needs to go to the penitentiary they 

go to the penitentiary. I do believe it does deter criminal conduct, 

especially violent conduct. But we need the space for these folks, 

as opposed to the folks that don’t pay their slaughterhouse bills on 

time. 

With that, I yield back. Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. 

We have several distinguished witnesses today to help us consider the issues. 

The first witness is Jim Lavine, president of the National Association of Criminal Defense Lawyers, based in Washington, D.C. 

He is a former prosecutor in both Texas and Illinois. He is the recipient of the prestigious award from the NACDL given annually 

to criminal dense lawyers who personally and professionally exemplify the goals and values of the association and the legal profession. 

Our second witness is Bobby Unser, a retired race car driver. But 

he is here not to talk about his racing exploits. In 1996, as we’ve 

heard, he and a friend were snowmobiling along the Colorado-New 

Mexico border, trapped in a blizzard. They dug for shelter and 

abandoned their snowmobiles, while suffering frostbite, dehydration, and exhaustion. After their rescue, the Forest Service rangers 

returned days later to recover the vehicles, and he was find $75 for 

snowmobiling in a wilderness area. He refused to sign; and, following a 2-day bench trial, he was convicted of a one-count misdemeanor. 

Our next witness, Abner Schoenwetter, is another victim of overcriminalization. In November, 2000, a Federal jury found him, a 

hard-working seafood dealer with no prior criminal history, and his 

codefendants, guilty of multiple violations of the Lacey Act, all premised on violations of a disputed Honduran law regarding importation of fish or wildlife. Interestingly, the Honduran Embassy filed 

an amicus brief stating that the law was null and void. He served 

7 years in prison for shipping lobsters that were under regulation 

size and transported in plastic bags instead of cardboard boxes. He 

will be under supervised release for the next 3 years. 

During my opening statement at last year’s hearing on this 

issue, I referenced this case; and, at the time, he and his codefendants were still incarcerated. And I said Congress must understand 

that we are making law-abiding Americans vulnerable of losing 

their freedom, their livelihood, their lives when we enact laws that 

are vague and fail to clearly communicate the illegality and criminality of proscribed acts. He is here with us today and will tell us 

about his experiences. 

After he testifies, Brian Walsh is a senior legal research fellow 

at the Heritage Foundation’s Center for Legal and Judicial Studies. 

He directs Heritage’s projects on countering the abuse of criminal 

law and criminal process. Prior to joining the Heritage Foundation, 

11 

he was with the litigation team at Kirkland & Ellis and a law clerk 

to Judge Bowman of the U.S. Court of Appeals for the 8th Circuit. 

Our next witness would be Stephen Smith, professor of law at 

Notre Dame School of Law. Prior to teaching, he served with the 

Supreme Court and Appellate Practice Group of Sidley & Austin in 

Washington, D.C. He also served as an associate majority counsel 

to a 1996 House of Representatives select committee investigating 

U.S. involvement in Iranian arms transfers to Bosnia. 

The witness after that will be Professor Ellen Podgor, who is the 

LeRoy Highbaugh Senior Research Chair and professor of law at 

Stetson University. A former deputy prosecutor and criminal defense attorney, she teaches in areas of white-collar crime, criminal 

law, and international criminal law. She presently serves on the 

board of directors of the International Society for Reform of Criminal Law. 

Our next witness is Andrew Weissmann, who is co-chair of the 

white-collar defense and investigations practice at Jenner & Block 

in New York City. He joined the firm after serving as the director 

of the Enron Task Force, where he oversaw the prosecution of more 

than 30 individuals in connection with that company’s collapse. 

Now, all of the witnesses’ written statements will be entered into 

the record in their entirety. I would ask each witness to summarize 

his or her testimony in 5 minutes or less. And to help stay with 

the time, there is a timing device in front of you which will start 

green, will turn to yellow when there is 1 minute left, and red 

when the 5 minutes have expired. 

Mr. Lavine. 

TESTIMONY OF JIM E. LAVINE, PRESIDENT, NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, WASHINGTON, 

DC 

Mr. LAVINE. Chairman Scott, Ranking Member Gohmert, Committee Members, my name is Jim Lavine, and I am the president 

of the National Association of Criminal Defense Lawyers. I am also 

a practicing criminal defense attorney in Houston, Texas, and I 

was formerly a prosecutor, having the privilege of practicing before 

Judge Poe during the time in his prior life when he was a judge 

in Houston. I appreciate the opportunity to testify today on behalf 

of NACDL and all of my colleagues in the criminal defense community. 

No one, including the government, can state how many criminal 

offenses exist in the Federal code or in the Federal regulations. It 

is impossible for practitioners who specialize in this area to know 

all of the conduct that is criminalized. How then is the citizen to 

protect against unjust prosecution and punishment for making honest mistakes or engaging in conduct they had no reason to know 

was illegal? 

Duplicative statutes, federalization of conduct traditionally belonging to the States, criminalization of regular business activity or 

social conduct and interactions, this is overcriminalization. When 

any of these elements is combined with poor legislative drafting, inadequate mens rea requirements, or unfettered prosecutorial discretion, the result is inevitably the victimization of more law-abiding citizens. 

12 

While I am here today to speak about overcriminalization, Representative Conyers, NACDL would welcome the opportunity to return at another time and discuss the issue of problem-solving 

courts; and we have published in our report and discussed the 

issue in drug courts and diversion in particular, in answer to your 

earlier question in your opening remarks. 

On July 22, in 2009, this Subcommittee came together under the 

bipartisan leadership of Representatives Bobby Scott and Louie 

Gohmert to learn about our Nation’s addiction to overcriminalizing 

conduct and over-Federalizing crime. Supported by a broad coalition of organizations ranging from the right to the left, last summer’s hearing received attention from national media and ignited 

the overcriminalization reform movement. NACDL and the Heritage Foundation dedicated themselves to analyzing the legislative 

process for enacting criminal laws and produced a groundbreaking 

nonpartisan joint report entitled ‘‘Without Intent, How Congress Is 

Eroding the Criminal Intent Requirement in Federal Law.’’ So 

basic is this issue that the Nation’s practicing criminal defense bar 

has collaborated with a conservative think tank to produce the 

Without Intent report. 

Just 1 month after its release, over 300 articles from news organizations spread coast to coast were written about the report. The 

press had taken notice of this unlikely coalition, the American people’s growing concern over the current overexpansiveness of Federal criminal laws and the broad bipartisan support for reform. 

The interest extends beyond the press. NACDL has received requests for copies of the report from members of every branch of 

government. 

But another side of this problem has received even more attention by Members of this Chamber and the national media alike, the 

personal side, or as we refer to it, the face of overcriminalization. 

Presenting the face of overcriminalization is critical to raising public awareness of this problem. For this reason, I will spend the remainder of my testimony doing just that. 

During last summer’s hearing, Members of this Subcommittee 

heard the heart-wrenching tales of two victims of overcriminalization, Krister Evertson and George Norris. From this testimony we 

learned how an unwarranted prosecution can destroy the lives of 

productive, law-abiding citizens and community members. 

Sadly, their stories are not unique. Consider the case of Georgia 

Thompson, which is described in more detail in my written testimony. Georgia was charged and convicted of violating 18 USC 

1346, commonly known as the honest services fraud statute, for 

conscientiously doing her job and doing it well. Upon hearing oral 

argument, the Seventh Circuit panel of judges found this prosecution so ill-conceived that it immediately reversed her conviction and 

ordered her released without delay. 

The honest services statute did receive a measure of comeuppance in the Supreme Court this past term but not before its 

carnage was visited upon untold numbers of victims of overcriminalization. You may ask yourself, how could this happen? An innocent, hardworking civil servant ends up spending 4 months in prison just for doing her job. 

13 

Georgia Thompson is the face of overcriminalization. Her story is 

evidence of the harm caused when Congress fails to draft statutes 

clearly and with adequate mens rea protection, when prosecutors 

stretch already broad statutes to reach everyday conduct never intended to be criminalized, and when judges inconsistently apply 

rules of interpretation. 

The honest services fraud statute responsible for victimizing 

countless law-abiding individuals is the poster child for this problem. The failure of Congress to define criminal conduct in a clear 

and specific manner allows, and quite possibly encourages, prosecutors to charge all sorts of innocent conduct, from errors in judgment to behavior that is the slightest bit unsavory. Rather than 

enact a specific, precise criminal statute, Congress instead relies on 

prosecutorial discretion to shape the contours of criminal offenses. 

The story of Georgia Thompson as well as Krister Evertson and 

George Norris demonstrate that such reliance is misplaced. 

Today you will hear from two more victims, Abner Schoenwetter 

and Bobby Unser. Abner spent nearly 6 years in prison for shipping lobster tails in plastic bags rather than cardboard boxes, in 

violation of a Honduran law that was deemed null and void by the 

Honduran Government. Bobby Unser got lost in a blizzard while 

snowmobiling and spent almost 2 days trekking through snow in 

search of aid. After this near-death experience, Bobby was prosecuted for unknowingly entering protected land with his snowmobile. The fact that he got lost in a blizzard was no defense in 

the eyes of the government. 

The cost of overcriminalization does not stop with the personal 

freedom of its direct victims. In my over 25 years as a criminal defense attorney, I have seen families shattered, careers ruined, businesses fail, thousands of innocent workers become unemployed, and 

entire communities devastated, all done at the taxpayers’ expense. 

This dangerous trend needs to end. 

The Without Intent report offers five basic good government reforms that, if implemented, will potentially stop haphazard Federal 

criminalization. The remainder of the panel will discuss these reforms further, but it is important to note that they have received 

broad support from a coalition of organizations ranging from the 

right to the left. This is not an ideological or political issue but 

rather a serious and fundamental aspect of good governance. Indeed, all political parties share a responsibility to ensure that 

criminal laws are properly circumscribed. 

The problems of overcriminalization are very real, deal with very 

real people in the very real world of courtrooms across this country. 

NACDL is confident that today’s hearing will heighten awareness 

of overcriminalization and inspire future action. We welcome this 

hearing and urge the Subcommittee to support rules and legislation embodying these reforms. 

Thank you. 

[The prepared statement of Mr. Lavine follows:] 

14 

PREPARED STATEMENT OF JIM E. LAVINE


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Mr. SCOTT. Thank you. 

Mr. Unser. 

TESTIMONY OF ROBERT ‘‘BOBBY’’ UNSER, 

PERSONAL IMPACT WITNESS, ALBUQUERQUE, NM 

Mr. UNSER. Thank you, Chairman Scott and Ranking Member 

Gohmert and the rest of the Members of the Committee for inviting 


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me here to tell my story about what often happens to honest men 

and women because of bad criminal laws. 

The bad law in my case said that I was a criminal if I wandered 

into a national wilderness that was off limits to motorized vehicles 

when a friend and I were lost in a blizzard. It didn’t matter that 

we never intended to enter the wilderness. It didn’t matter that the 

wilderness was not marked. It didn’t matter that we didn’t even 

know that there was a wilderness there. 

I could have been imprisoned for up to 6 months for this law. 

Maybe I should be grateful that I wasn’t sent to jail, and I guess 

I am. But someone else in the same situation might have ended up 

in prison. I am here to help make sure that does not happen again, 

hopefully. 

Just before Christmas in 1997, my friend and I, Robert Gayton, 

planned to go to a snowmobile ride up in what’s called the Jarosa 

Peak area near my ranch in Chama, New Mexico. That’s on the 

edge of Colorado and New Mexico. It’s all in just the State line in 

between, all the same mountains. The area was known as a 

snowmobiling location that was perfectly legal to snowmobile there. 

Robert and I headed out around noon and rode for about an 

hour, until we reached the bowl above the tree line that was terrific for snowmobiling. It was exposed and a very high altitude, at 

about 11,000 feet. Our trouble started about an hour later, when 

a severe ground blizzard suddenly kicked up. In a ground blizzard, 

the wind is blowing so hard that all the snow around you creates 

what is called a whiteout. 

That day the wind was blowing about 60 to 70 miles an hour, 

and at times we couldn’t see any more than 2 or 3 feet in front of 

us, just like being in a closet. Almost immediately, we went from 

playing around to trying to get out of there and find shelter from 

the blizzard. 

Less than 30 minutes after the blizzard started and the visibility 

went down to zero, Robert rode a snowmobile into an embankment 

and got stuck, which was a blessing in disguise. The good Lord 

took care of that one. We tried for a few minutes to get it moving, 

but I realized that it was unlikely that we could get it unstuck. 

And, being abandoned, the snowmobile was good. It was a blessing. 

So I put Robert on behind me. I couldn’t look back and try to 

guide him out of the mountains is what the deal was. Robert got 

on the back of my snowmobile. We started off again. At its best, 

the visibility was about 20 feet. That’s less than from here to you. 

And now we had another problem. I had a brand new snowmobile, and it kept breaking down. Brand new meaning very first 

trip ever on it. And I am a pretty good mechanic. And under normal circumstances I could have fixed it and kept it running maybe. 

But I couldn’t get it up and running, and it was getting darker and 

darker. Starting to get dark, which happens at 5 o’clock in that 

time of the year. We made the decision to abandon it and attempted to get down the mountain to shelter on foot. 

If we stayed in the high, exposed terrain above the tree line, we 

were going to die. There was not going to be any question about 

that. And it was going to be that night. So we had to get down 

somewhere low enough that there would be trees so that we could 

23 

build a snow cave. These are the things that I know because I was 

raised in the mountains. 

We trudged through the snow in complete darkness, feeling our 

way down the mountain like two blind men. After a few hours of 

wandering—remember, no flashlights, no lights of any sort, no 

moon, nothing to walk by—we trudged through the snow in complete darkness, feeling our way down the mountain like two blind 

men. After a few hours of wandering, we finally found an area 

below the tree line where we could build a snow cave. We spent 

the night in that snow cave. It sheltered us from the wind, but, remember, it’s going to get down around 30 below zero up there, plus 

or minus a little bit. It’s not going to be warm, by any means. Snow 

cave’s the only way to make it. 

We didn’t sleep all night, needless to say. The snow cave, just for 

a minute, had to be—we built it under a tree, a big Ponderosa pine 

tree, where the snow gets on the branches, lays the branches down. 

And I built the cave around the tree a little bit circular. And the 

branches made the roof of the cave. And then we pitched snow up 

on top of that in order to make the snow cave. Had to do it in the 

darkness, also. 

The next morning we had no idea—no clear idea where we had 

come from and no idea where to go. So what had happened there 

is the blowing snow—I went out the next morning—we tried—I 

would have backtracked to the snowmobile because it was full of 

gas. Gasoline is safety in the mountains, because you can light a 

fire real easy. But I can’t see our tracks because it’s all filled back 

in with snow. 

The judge didn’t want to listen to this. 

All the next day, we trudged through the snow that was never 

any shallower than our hips. I was very nauseated. And after a 

short while, I began vomiting repeatedly. Soon after, I started 

coughing up blood. I was in bad shape. Incidentally, I was only 2 

weeks out of a back operation. I was back to Indianapolis, Indiana, 

got my back overhauled. And maybe I shouldn’t have been 

snowmobiling. But under normal circumstances I could have done 

it. 

So we were so cold and near the end of our strength that we did 

not stop to sleep for the end of the second day. We kept struggling 

on through that night. We were operating on auto pilot, exhausted, 

hungry, and suffering from dehydration and hypothermia and frostbite. 

Before dawn, we found our oasis, an open barn that had a working space heater and a phone. Brand new barn somebody had built 

clear down at the bottom over another range of mountains. And 

there was a phone in there, believe it or not. Good Lord took care 

of me again. I called my brother, and then I ended up spending 

weeks in bed recovering from my experience. But with the help of 

my friends, family, and doctor, I was able to survive. It was a terrible memory. But all that really matters is that we both made it 

back alive. 

After regaining my strength and returning to business, I started 

thinking about finding my lost snowmobile. It wasn’t important before that because it was way up in the mountains somewhere. I 

planned to contact the Forest Service, because they have employees 

24 

who work out in the field almost daily and know the area. So I 

reached out to them. 

We at first had a short first meeting with a Forest Service employee—this was in Albuquerque—and he told me that he would 

see what he could do to help. He knew, but didn’t tell me, that the 

Forest Service had started a criminal investigation against me. I 

didn’t know this at all. So I came down. It was really the next 

afternoon. I really thought that they were there to assist me, and 

I had no idea that they were basically Forest Service police, because they never showed me a badge or any credentials. 

I met with them by myself and had a conference room and talked 

right after lunch until after 5 o’clock. I think it was around 5:30 

that day. I told them everything, where we started, where we rode, 

where the ground blizzard started, and where I thought we spent 

the first night. Had to just guess at it because I didn’t know. They 

asked me to guess where we might have been. I gave them several 

good guesses but made it clear that I didn’t know exactly where I 

was because of the conditions. 

After we had talked for several hours, one of the Forest Service 

agents—meaning a lady—reached under the table, opened her 

briefcase, and pulled something out. It was an official form document they had already filled out and saying they were going to 

charge me with a Federal crime. They claimed I had entered the 

national wilderness area in my snowmobile, which of course they 

had no way of knowing. We were only guessing at everything. So 

when I found out that they were going to prosecute me for driving 

my snowmobile into the wilderness area, I told them flat out there 

was no way I was going to admit to committing a crime—I certainly wasn’t going to sign a ticket either—if you can even call it 

a crime in the first place. I was facing up to 6 months in prison 

and a $5,000 fine, and I had no other option but to fight the 

charges. 

I fought the case all the way up to the Supreme Court of the 

United States but ended up on the short end of the stick because 

of the nature of the law itself. It seems that because the law was 

what’s called strict liability the government hardly had to prove 

anything at all. Under strict liability laws, the government doesn’t 

need to show that the defendant, me, intended to do something 

wrongful, something illegal, or even know that he was violating the 

law. 

That doesn’t seem like the American justice system to me. Why 

should I, who nearly died in the ground blizzard, have to show 

there was no true need for me to enter the wilderness? Didn’t even 

know I was there. If someone with my ability to fight this case 

could have made so little headway against the government, then 

most people charged under bad laws like this will be truly hard 

pressed to defend themselves. 

The long and short of it is that what happened to me was totally 

wrong. It should not have happened to me. It should not happen 

to anyone else in the United States. Laws should not be written so 

that the government can prosecute us for things we have no idea 

that’s illegal or wrong. 

Given how bad the situation currently is, I ask Congress to make 

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mending. Real criminals, those who intentionally commit robberies, 

burglaries, and violent crimes, should be properly punished. No 

doubt about that. No one disputes it. But Americans who are working to do the right thing and stay out of trouble should not be 

caught up in these traps of overcriminalization. 

I would like to answer any questions that you might have. I have 

a lot to say. 

[The prepared statement of Mr. Unser follows:] 

PREPARED STATEMENT OF ROBERT ‘‘BOBBY’’ UNSER


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[Charges against Mr. Unser:] 

Mr. SCOTT. Thank you. 

Mr. Schoenwetter. 

TESTIMONY OF ABNER SCHOENWETTER, 

PERSONAL IMPACT WITNESS, PINECREST, FL 

Mr. SCHOENWETTER. How does that sound? 

Good afternoon. Thank you, Chairman Scott and Ranking Member Gohmert, for holding this hearing on overcriminalization. 


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I didn’t know anything about overcriminalization until an unjust 

Federal prosecution almost destroyed me and my family. But I’m 

not here to get sympathy. I’m here to make sure other Americans 

don’t have to go through the same destructive ordeal that we have 

been through. 

I am now a convicted felon and just spent 6 years in Federal 

prison because I was a seafood importer and agreed to purchase a 

typical shipment of lobster. They were packaged in plastic bags, 

like all of the other shipments we had purchased in the previous 

12 years. But the U.S. Government said the lobster should have 

been in cardboard boxes because an obscure Honduran regulation 

said so. That ended up being the reason I was sentenced to over 

8 years in Federal prison. It may sound crazy, but it’s true. 

I grew up in Brooklyn and learned very early the value of hard 

work and staying on the right side of the law. Crime was all 

around you, so you either got caught up in it or you learned to do 

what was right, follow the law and stay out of trouble. I had good 

parents and a strong desire to make something better of myself, so 

I chose to stay out of trouble. But none of this could have prevented 

me from becoming a Federal criminal. 

I started a small seafood import company in 1986. It was my little piece of the American dream. My nightmare started in early 

1999, when my long-time partner, Bob Blandford, and I agreed to 

buy a load of Caribbean spiny lobsters from David Henson McNab, 

a Honduran fisherman and business associate. 

The shipment was no different than any of the other hundreds 

of deals we had done over the years with David. What was different was that the ship was seized in port in Bayou La Batre, Alabama, by the National Marine Fishery Service, that’s NMFS, a 

Federal agency. 

Bob and I didn’t know the reason for the seizure at the time. Our 

products had been subjected to FDA and Customs regulations, inspections, and random testing for 12 years; and we had never had 

any trouble at all. We purchased mostly from David McNab because he delivered the highest quality product on time and was always professional. We never even dealt in the lower-quality lobster 

that was often sold into the secondary market. 

We eventually learned that the government seized the lobster for 

supposedly being in violation of Honduran fishing regulations. 

Keep in mind that we had never seen the lobster before the day 

it was seized at port. We had no reason to believe that there was 

anything wrong with it. 

The government soon told us that they were only trying to make 

a civil case against David. But that was not true. We soon found 

out that we were being charged with smuggling and conspiracy 

based upon violations of Honduran fishing regulations that applied 

to us under a Federal law known as the Lacey Act. 

The first regulation was the one about cardboard boxes. According to our prosecutors, the second regulation supposedly required 

that all lobsters caught and sold be at least 51⁄2 inches in length. 

The third regulation supposedly prohibited possessing any eggbearing lobsters. If found guilty, I faced hundreds of thousands of 

dollars in fines and decades in prison. 

37 

When I look back on it now, my biggest mistake was exercising 

my Sixth Amendment right to trial. I had done nothing wrong. I 

never intended to violate any law. None of us had ever heard of the 

Honduran regulations. Beyond that, the Honduran Government 

certified to the U.S. Government that all three regulations were invalid and unenforceable. But none of this mattered in our case. 

First, armed agents from the FBI, IRS, NMFS searched my 

house in Pinecrest, Florida. They forced their way in around 7 in 

the morning, herding my wife, my mother-in-law, and my daughter 

into the living room in their nightclothes and ordering them to sit 

and be quiet. Needless to say, we were all frightened to death. 

Not long after this, another group of Federal agents came to my 

house at 6 in the morning to arrest me. I was not home, but they, 

too, had their guns out. I was not a dangerous person. Importing 

lobsters has nothing to do with violence. And when they finally 

asked me to surrender, I did so voluntarily. 

Fighting the unjust charges proved impossible. It all boiled down 

to a complex relationship between the Honduran regulations and 

American law. The issue was so complicated in fact that the judge 

was forced to hold separate hearings to determine the validity and 

meaning of the Honduran rules. 

Our lawyers presented plenty of evidence showing that the regulations were invalid, including a letter from the Attorney General 

of Honduras. None of this evidence mattered to the court, however. 

Despite the absurdity of the law itself, the jury found me guilty of 

both conspiracy and importation contrary to law, and the judge 

later sentenced me to 97 months in prison. It took me 5 years to 

pursue my trial and appeal, and I am still under 3 years of supervised release. All in all, this will be a 14-year ordeal for me and 

my family, and I will always be a convicted felon. 

Up until this point, I had been convinced that the justice system 

would sort out the whole mess. False hope, as it turned out. It’s 

tough to say whether prison is tougher on the inmate or the inmate’s family. In my case, prison certainly ground me down. It 

made me a far less trusting person and triggered a range of personal health problems that I am dealing with to this day. It also 

cost me my reputation, my livelihood, and my ability to vote. The 

toll on my family, however, was perhaps even more immense. 

Last month, on August 27, 2010, I completed the last 5 months 

of my 6 years and 3 months of confinement. I struggle daily with 

how to readjust to life after prison and often find myself reflecting 

how to start my life over. But I owe it to my family and to others 

who may be targeted to tell my story. I am by no means a lawyer 

or expert in criminal justice policy, but, like most Americans, I 

think I have a good gut sense of what is right and what is wrong. 

The law should draw clear, understandable lines between what 

is legal and what is criminal. When there are so many thousands 

of criminal laws on the books, none of us can be certain how our 

actions will be characterized or mischaracterized by the government. The law needs to be simplified, made clearer, and written in 

a way that gives average Americans an understanding of what they 

can and cannot do. 

Simple changes such as these would go a long way toward protecting innocent people from unfair prosecution and unjust prison 

38 

sentences. Such changes might be too late to benefit my family, but 

my sincere hope is that they help protect other Americans from the 

devastating effects of overcriminalization. 

Thank you for letting me speak, sir. 

Mr. SCOTT. Thank you. 

[The prepared statement of Mr. Schoenwetter follows:] 

PREPARED STATEMENT OF ABNER SCHOENWETTER


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TESTIMONY OF BRIAN W. WALSH, SENIOR LEGAL RESEARCH 

FELLOW, THE HERITAGE FOUNDATION, WASHINGTON, DC 

Mr. WALSH. Good afternoon. Thank you, Chairman Conyers, 

Chairman Scott, and Ranking Member Gohmert and other Members of the Committee, first for holding this hearing on overcriminalization problems and solutions, and also for inviting me to testify. 

My name is Brian Walsh, and as Chairman Scott said, I direct 

Heritage’s projects on countering the abuse of criminal law and the 

criminal process, particularly at the Federal level. My work focuses 

on overcriminalization. 

The problems of overcriminalization have been well documented 

academically and even statistically. But the real toll cannot adequately be captured by scholarship or numbers, no matter how 

skillful. 

The approximately 4,500 criminal offenses in the U.S. Code, and 

tens of thousands in the Code of Federal Regulations, have proliferated beyond all reason and comprehension. Surely when neither the Justice Department nor Congress’ own Research Service 

can even count the number of crimes in Federal law, the average 

person has no hope of knowing all he must do to avoid becoming 

a Federal criminal. 

The damage this does to the American criminal justice system is 

incalculable. It used to be a grave statement to say that someone 

was ‘‘making a Federal case’’ out of something. Today, although the 

penalties for a Federal case are severe and frequently harsh, the 

underlying conduct punished is often laughable: Six months in Federal prison for (possibly) wandering into a national wilderness area 

when you are lost with a friend in a blizzard and fighting for your 

lives; 2 years in prison for ‘‘abandoning’’ materials that you have 

paid to properly store in 3⁄8-inch-thick stainless steel drums; 2 

years in prison for having a small percentage of inaccuracies in 

your books and records for a home-based business; 8 years in Federal prison for agreeing to purchase a typical shipment of lobsters 

that you have no reason to believe violates any law, and indeed 

does not. 

All of these sentences and the underlying prosecutions make a 

mockery of the word ‘‘justice’’ in ‘‘Federal criminal justice system.’’ 

They consume scarce and valuable legal enforcement resources that 

could be spent investigating and prosecuting real criminals or in 

hearing legitimate civil and criminal cases. By imposing criminal 

punishment where there is no connection to any rational conception 

of moral wrongdoing, they severely undermine the public’s confidence in and respect for criminal justice as a whole. 

My written testimony, which I have submitted for the record, focuses on the report that you mentioned, Mr. Chairman, published 

jointly by the Heritage Foundation and the National Association of 

Criminal Defense Lawyers. I respectfully request that ‘‘Without Intent, How Congress Is Eroding the Criminal Intent Requirement in 

Federal Law’’ would be submitted to the record. 

Mr. SCOTT. It will, without objection. 

Mr. WALSH. Thank you. 

In short, however, in the report we found that approximately 60 

percent of nonviolent, nondrug criminal offenses considered in a 

47 

single Congress, the 109th, had mens rea or criminal-intent requirements that are wholly inadequate to protect from criminal 

punishment Americans who had no intention to commit a crime 

and no idea that their conduct was illegal or even wrongful. The 

percentage was approximately the same whether we looked at offenses that were introduced, passed, or enacted. In other words, 

these are flawed laws with inadequate criminal-intent requirements that fail to protect innocent persons like Mr. Unser and Mr. 

Schoenwetter. 

We also found that over 50 percent of these 446 criminal offenses 

were not given oversight by the Judiciary Committees that have 

the express jurisdiction over and most expertise regarding criminal 

law and justice. 

The one bright spot comes from your Committee, and that is that 

bills that are marked up or reported out by this Committee are statistically more likely to have criminal-intent requirements that protect innocent persons. 

The ‘‘Without Intent’’ report was not limited to identifying the 

problems and causes of Federal criminalization. The study was conducted in the context of concerted efforts by the broad range of organizations in or working with the overcriminalization coalition to 

educate Congress on these problems and develop effective, practical 

solutions. These organizations have met with increasing frequency 

in the past 2 years with Members of Congress and their staffs, 

leading academics and legal practitioners, and with one another, to 

develop principled, nonpartisan reform proposals. 

The ‘‘Without Intent’’ report borrowed heavily from the coalition’s 

efforts and selected the five reforms that are best suited to redress 

the problems on which the study focused. Several members of the 

coalition have begun initial crafting and vetting of legislative language to begin discussing with Members of Congress. The hope is 

that Members will adopt some of the ideas in the draft language 

for their own reform bills, and the current expectation is that bills 

consistent with such reforms will have bipartisan support. 

Briefly, the five reforms addressed by ‘‘Without Intent’’ are: 

Enacting default rules of interpretation ensuring that mens rea 

requirements are adequate to protect against unjust conviction, 

much like the Model Penal Code already has. 

Codifying the rule of lenity which grants defendants the benefit 

of the doubt when Congress fails to legislate clearly, and this reform is, of course, consistent with our American system’s presumption of innocence for the defendant and also the burden of proof 

that it places on the government to prove every element of the 

crime beyond a reasonable doubt. 

The next reform is to require adequate Judiciary Committee 

oversight over every bill proposing criminal offenses or penalties. 

The next is to provide detailed written justification for and analysis of all new Federal criminalization. 

And finally, it is to redouble efforts to draft every Federal criminal offense clearly and precisely. 

These five reforms would substantially increase the strength of 

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nal law. Americans are entitled to no less attention to and no less 

protection of their most basic liberties. 

The organizations that have been listed today as being in support 

of this hearing by no means see eye to eye on many important 

issues, but they have put their disagreements aside to establish 

common ground on the issue of overcriminalization and to develop 

a common framework for addressing its root causes. This is because there is no disagreement that Federal criminal law is seriously broken, and getting worse almost every week Congress is in 

session. 

In an age of often intense and bitter partisanship, this surprising 

collaboration speaks volumes. It expresses the good faith of those 

who share overlapping conceptions of a fundamental goal: to make 

the criminal justice system as good as it can be and as good as 

Americans rightly expect it to be. 

The organizations have differing ideas about how to get to that 

place, but the broad support for today’s hearing is a sign of the 

similarly broad support for returning Federal criminal law to its 

proper foundations in the fundamental principles of justice. 

At the end of the day, the most severe toll levied by overcriminalization is human. Racing legend Bobby Unser will be known for 

life, not only for his remarkable accomplishments, but also for his 

Federal criminal conviction. Krister Evertson is currently unable to 

care for or even visit his 82-year old mother in Alaska because he 

is on probation and living in a ramshackle aluminum trailer on the 

lot of an Idaho construction company. Abbie Schoenwetter and his 

family must now labor to overcome the unjustified and unneccesary 

impact of overcriminalization on their health, finances, and emotional well-being. 

All of these human tragedies came about because an unjust law 

was written and placed into the hands of an unreasonable government official. These stories testify most eloquently to the irrational 

injustices of overcriminalization. 

These victims and unknown victims like them around the country who have not yet had their stories told, comprise the thousands 

of human reasons why stopping and reversing the trend of overcriminalization fully merits this Committee’s consideration. 

Thank you again for inviting me to testify, and thank you for 

your principled, bipartisan stance against these injustices. 

[The prepared statement of Mr. Walsh follows:] 

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*See Appendix, page 116, for an amended version of this statement. 

PREPARED STATEMENT OF BRIAN W. WALSH* 


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Mr. SCOTT. Professor Smith. 

TESTIMONY OF STEPHEN F. SMITH, PROFESSOR OF LAW, 

UNIVERSITY OF NOTRE DAME LAW SCHOOL, NOTRE DAME, IN 

Mr. MCDONALD. Thank you, Chairman Scott, Chairman Conyers, 

and Judge Gohmert. It is a pleasure to be here to talk about this 

topic, and I commend all of you for your interest in it. 

I want to address you from an academic perspective about the 

problem of overcriminalization. And, yes, I think it is a serious 

problem. So I wanted to talk about this from an academic perspective. I think there are two aspects to overcriminalization that it is 

important to focus on. 

One is the usual one that we tend to focus on, which is the quantitative issue. The idea there is that we have too many criminal 

laws, certainly at the Federal level, and those criminal laws are entirely too broad in scope. There are too many infractions that are 

punishable as crimes. And that is what I call the quantitative aspect of overcriminalization. 

There are also, I think, important qualitative aspects. And there 

the complaint isn’t so much about the number of the crimes and 

the scope of the crimes, but just at how poorly conceived the criminal code is; how inadequately defined crimes are in terms of the 

conduct, or actus reas elements; the state of mind, or mens rea elements; the paucity of defenses that are necessary, and similar 

problems. 

And in my scholarship, I talk about both of these. I tend to focus 

less on the quantitative aspects and more on the qualitative aspects. And to be clear, I want to make sure that you don’t think 

that I don’t agree with the idea that there are too many crimes, 

that crimes are too broad. I totally agree. I think the Federal 

Criminal Code would work a lot better, we would have a lot more 

fairness in our country. We would be a lot more effective at 

counterterrorism, for example, and securing our borders if Federal 

prosecutors focused on those issues of truly national concerns and 

stop playing district attorney, and if FBI agents stop playing beat 

cop. Leave these to the State court systems, these street crimes 

and violent crimes, to save the resources of the Federal Government for where they are truly needed—immigration, where that is 

a function of the Federal Government; those kinds of things. I 

think a narrower criminal code at the Federal level that focused 

the Federal enforcers on those things would be an enormous benefit to our great Republic. 

The problem I have is I don’t want to stick all of my bets on the 

Congress radically reducing the size of the criminal code. It would 

be great if it happened. Lots of things would be great if they happened. It would be great if I won the lottery. I don’t think that is 

going to happen either. I don’t play it, so how can I win it? 

But I don’t know that that is terribly realistic. So I have tended 

to focus my scholarship on the qualitative problems associated with 

overcriminalization. Can we fix the criminal code so that it more 

accurately defines crimes? Can we have more realistic punishments, as Chairman Conyers recognized? I think that is an underappreciated part of this problem, so I am glad the Chairman 

brought that up. 

63 

I think overpunishment is something that we need to be concerned about, and that ties directly into overcriminalization, because Federal prosecutors take these broad crimes and they enforce 

them, and they enforce them because they carry such high penalties, they enforce them because they often have mandatory minimums that ensure jail sentence. 

And when we move these offenders from the State court system 

where drug courts are there, where they are exploring alternative 

punishments, when we move them from the flexible policies in the 

State court system into the Federal court system where we have 

a very rigid, one-size-fits-all approach—punishment, more punishment and even more punishment—I think that is a fundamental 

mistake. We are giving prosecutors incentives to bring these cases 

into the Federal system with all the attendant problems that 

causes—and we saw that in the Armstrong case with the crack, 

100-to-1 crack cocaine rule which the Congress rightly repealed 

earlier this year. Enormous racial disparities in the prison population attributable to this arbitrary and unnecessarily harsh rule 

about the sentences for crack cocaine. 

So I think the quantitative aspects are important, and that is 

where I tend to focus. 

I do want to make a broader point so we don’t get lost in the 

weeds, as professors are wont to do. And I think all of this fundamentally comes back to the role of moral blameworthiness in the 

country. These horror stories that we have heard today about overcriminalization are heartbreaking because a fundamental principle 

or a criminal law is that punishment requires moral blameworthiness, that nobody should be subject to conviction and punishment 

for a crime unless they committed a blameworthy act, unless they 

had reason to know their conduct was immoral or illegal. 

And you can see from these examples that we heard today that 

our criminal law at the Federal level does not do that, that punishment is often imposed without blameworthiness and in excess of 

blameworthiness. The idea of overpunishment as well. 

Crimes are not defined adequately. The mens rea requirements 

in particular in Federal criminal law are woefully insufficient. That 

is a real problem for a criminal law that is supposed to be limited 

to punishing blameworthy acts, because it is the guilty-mind requirement that really ensures that people won’t be punished unless 

they had knowledge that they were committing a wrong, either a 

legal wrong or moral wrong. 

There are a lot more aspects to this problem; I address them in 

my lengthy statement. I will stop there, and, again, I will be happy 

to answer your questions. 

[The prepared statement of Mr. Smith follows:] 

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PREPARED STATEMENT OF STEPHEN F. SMITH


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Mr. SCOTT. Professor Smith, we didn’t repeal the crack and powder disparity. We adjusted it. We improved it. We didn’t quite repeal it. We still have a little more work to do. 

Professor Podgor. 


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TESTIMONY OF ELLEN S. PODGOR, LeROY HIGHBAUGH, SENIOR RESEARCH CHAIR AND PROFESSOR OF LAW, STETSON 

UNIVERSITY COLLEGE OF LAW, GULFPORT, FL 

Ms. PODGOR. Thank you, Chairman Conyers, thank you Chairman Scott, Ranking Member Gohmert, for allowing me the opportunity to speak to you about this important topic of overcriminalization. 

My name is Ellen Podgor, and I am a professor of law at Stetson 

University College of Law. I practiced law as both a prosecutor, a 

deputy prosecutor, and on the defense side, and I am now a professor of law, altogether stretching a period in excess of 30 years. 

I have been teaching and authoring books and articles on the 

subjects of criminal law, white-color crime, and legal ethics for 

many years, and I feel that my background allows me to offer you 

a balanced perspective on overcriminalization issues that are being 

addressed by this Committee. 

Clearly we are all opposed to crime. The goal to eradicate its existence is of the utmost importance. Laws that punish individuals 

when they commit crimes serve the important goals of deterring future criminality and isolating those who may present harm to society, and, as Representative Conyers points out, educating those 

who need the education. 

But efforts toward achieving these goals are hampered by the reality that in some cases criminality is not clearly defined, and society is not properly notified of what conduct is prohibited by law. 

If we were speaking about murder, rape, robbery, or arson, or other 

common law—malem in se—types of crimes, we wouldn’t be having 

this conversation. 

We all know these crimes are wrong and that such conduct will 

result in harsh punishment. The problem arises with respect to 

malum prohibitum crimes; crimes enacted by Congress that have 

enormous breadth; crimes that often do not require that the accused acted with criminal intent; and in many cases, crimes that 

are scattered throughout the 50 titles of the Federal Code. 

Overcriminalization is a twofold problem, and I agree with Professor Smith in that regard, the number of statutes and the 

breadth of the statutes. You have my written remarks that elaborate on how overcriminalization increases prosecutorial discretion 

and judicial creativity, all at the expense of the legislative function. 

It is important that legislatures not assign their lawmaking function to the other branches. 

I will speak briefly today about three solutions that I believe can 

assist you with solving this problem. 

With over 4,450 Federal criminal statutes, with thousands more 

regulatory provisions that allow for criminal punishment, and with 

these numbers continually growing, something needs to be done. 

First, there needs to be reform of the legislative drafting process. 

I recommend instituting reporting requirements, ascertaining 

whether there truly is a need for the new legislation, and whether 

constitutional authority was intended to cover that conduct. It 

would offer safeguards to haphazard legislative drafting and agency-focused initiatives. It also avoids federalism problems that may 

plague the law when eventually reaching court review. 

87 

Overcriminalization places financial stress on limited resources, 

and so there needs to be ample consideration of the costs of enacting new legislation and the resources that are available for implementation. 

A final component of reforming the legislative drafting process is 

to require reflection on the overcriminalization problem on an annual basis. This can best be accomplished through data collection 

of new criminal statutes that are passed to examine how they are 

used. New statutes that are continually used in tandem with existing laws are suspect as to whether they are truly needed to remedy 

a gap in the law. 

The second solution I recommend is to strengthen the mens rea 

terms in statutes and to provide a default mens rea for the situations when it might be unclear. It is important that Federal statutes provide a clear statement of mens rea, that the accused knew 

his or her conduct was illegal. The American Law Institute’s Model 

Penal Code has a default mens rea, and the Federal Criminal Code 

should exceed what is required in the Model Penal Code as it criminalizes malem prohibitum conduct that is not always nefarious or 

presumptively considered illegal. Having a specific mens rea terminology in statutes and a default mens rea as a safety net may still 

leave gaps needing interpretation. 

So the third solution I would recommend is to codify the rule of 

lenity. The rule of lenity requires ambiguous criminal laws to be 

interpreted in favor of the defendants subjected to them. As Chief 

Justice Marshall in 1820 noted, it is the legislature, not the court, 

which is to define a crime and ordain its punishment. 

Some States have moved in this direction; my own State, Florida, 

for example. Overcriminalization is a flaw of our criminal justice 

process that needs a remedy. I do understand that it is difficult to 

change the existing mentality of addressing immediate problems 

with criminalization. The solutions recommended here take an important step in restoring the importance of the legislative role. The 

cycle of recriminalizing conduct every time an event occurs needs 

to stop. 

Thank you very, very much for this opportunity today. 

[The prepared statement of Ms. Podgor follows:] 

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PREPARED STATEMENT OF ELLEN S. PODGOR


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Mr. SCOTT. Mr. Weisman. 

TESTIMONY OF ANDREW WEISSMANN, PARTNER, 

JENNER & BLOCK, LLP, NEW YORK, NY 

Mr. WEISSMANN. Good afternoon. The perspective that I would 

like to share with you this afternoon is as a former member of law 

enforcement. 


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The proposals in the ‘‘Without Intent’’ report would bring muchneeded clarity, in my view, to the criminal law. You have heard 

today from various panelists about how the proposals would benefit 

the public and not just putative defendants. A question can arise 

to what potential downsides are of these proposed reforms to law 

enforcement. 

As a dedicated Federal prosecutor for up to 15 years, I can tell 

you that these proposals would have no drawbacks for law enforcement. Indeed, in my view, they would serve to benefit it. Let me 

give you two examples. 

First, requiring criminal bills to state clearly the mens rea requirement would serve to assist prosecutors in guiding their decisions as to who to investigate and who to charge; it would benefit 

the courts in knowing how to charge a jury; and, benefit of course, 

defendants in being held accountable only for conduct that clearly 

violates the law. 

One example I can give you is the prosecution of Big Five accounting firm Arthur Andersen in which I served as the lead attorney for the government. The Federal district judge was faced with 

an obstruction statute that required the defendant to act intentionally and ‘‘corruptly.’’ The definition of the latter, however, was 

not spelled out in the statute, unless the court followed precedent 

that the Supreme Court only years later determined to be erroneous. The Supreme Court itself grappled with the term ‘‘corruptly’’ 

and what it meant. 

The Federal Criminalization Reporting Statement advocated by 

the Heritage Foundation and the NACDL could have led to a much 

more just outcome. Instead of a company facing indictment for a 

crime whose elements were not in retrospect crystal clear, the government and grand jury would have been able to determine prior 

to indictment whether the conduct violated the terms of the statute. Further, if the grand jury went forward and voted an indictment, the company would have been able to defend itself at the 

trial based on the clear requirements of the criminal statute, and 

not have to wait two levels of appeal, which, in a corporate setting, 

can render any relief Pyrrhic. Indeed by the time the Supreme 

Court ruled in the Andersen case, the organization was basically 

out of business. 

Thus, in answering whether the proposed reforms and regrets 

here today are wise, I submit one would need only imagine the answers of the prosecution, the defense, and the court in the Andersen case to the question whether they would have preferred that 

Congress specified clearly the intent standard in the obstruction 

statute. In short, lack of clarity in the criminal law can have real 

and dire consequences which are antithetical to the very goals of 

the justice system. 

There is a second way in which proposed reforms would be beneficial. The rush to enact a criminal statute to address perceived 

criminal problems can be illusory. The issue is often not the absence of criminal statutes on the books, but of investigation and enforcement. Often the conduct at issue already runs afoul of existing 

criminal law. In such situations, enacting a new criminal statute 

is not only redundant, it can be counterproductive, since it focuses 

97 

our time and attention on a measure that actually will not serve 

to reduce the risk of recidivism. 

For instance, in the immediate aftermath of high-profile national 

crises such as the corporate scandals, the meltdown on Wall Street 

that we’ve recently seen, or illegal immigration, there is a natural 

desire to take action that will reduce the risk of recidivism. Such 

actions often include the passage of additional criminal statutes. 

And while those statutes can be useful and sometimes extremely 

well crafted, in the heat of the moment they can be ill-advised, redundant, and vague. 

For instance, in the white-collar context, hearings last year in 

the Senate addressed a bill that would have simultaneously created 

a uniform fiduciary duty on all financial institutions to their clients 

and criminalized breaches of that duty. But there already were 

abundant tools available to Federal prosecutors to prosecute such 

conduct. 

As has been noted by various panelists, the United States Code 

contains numerous provisions that would criminalize such conduct; 

for instance, the mail and wire fraud statutes. To win a conviction, 

the prosecutor need only show the defendant used the mails or 

wires as a part of a scheme to defraud. Any e-mail could suffice. 

Here an anecdote may be illustrative. When I was a prosecutor 

switching from organized crime prosecutions in New York City to 

prosecuting fraud on Wall Street, I sought advice from a senior 

white-collar prosecutor about the intricacies of the securities laws. 

His advice: Get to know the mail and wire fraud statutes really 

well. Everything else is gravy. 

In conclusion, I would note that the line separating criminal conduct from all other is society’s starkest boundary between right and 

wrong. It should be reserved for actions taken intentionally. The 

goal of reserving the criminal law today as truly deserving of the 

highest punishment of our society would be greatly served by enacting the proposals put forward to you by the Heritage Foundation 

and the NACDL. 

Thank you. 

[The prepared statement of Mr. Weissman follows:] 

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PREPARED STATEMENT OF ANDREW WEISSMANN


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Mr. SCOTT. I want to thank all of our witnesses for the testimony. This is extremely helpful. 

I will now recognize myself for questions for 5 minutes and will 

start with Ms. Podgor. 


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Without taking an hour to do it, as you usually do as a professor, 

can you just give us a description of why malem in se and malum 

prohibitum would require a mens rea requirement? 

Ms. PODGOR. It all comes back to punishment. If we want people 

to actually know why they are being punished so that they don’t 

commit the crimes, then it is very important that they know that 

they are committing the crime. And I think the witnesses who testified today are the perfect example of just that. 

Whether it is malem prohibitum or malem in se, there needs to 

be a mens rea. The basic difference is that with malem in se crimes 

there usually is that mens rea. It is there. 

In the malem prohibitum crimes, the ones that are passed by the 

legislature, we don’t find that mens rea, and people just don’t know 

that it is wrong. And if they don’t know it is wrong, then even if 

we punish them, it is not going to serve that goal if it is not known. 

So if we want to succeed in stopping criminality, then we have to 

put the mens rea in so that people won’t commit the crimes. 

Mr. SCOTT. You mentioned the rule of lenity. With the presumption of innocence, why isn’t the rule of lenity automatic? 

Ms. PODGOR. The presumption of innocence goes to the factual 

decision in the case. The rule of lenity goes to the interpretation 

of the law. And when you have two constitutional possible interpretations of the law, the court is faced with the decision of which one 

they should go with. The rule of lenity allows them to go with the 

one that would be more persuasive for the defendant. And so it is 

different than just a presumption of innocence, which would be 

looking at the facts itself. 

Mr. SCOTT. But when you add guilt beyond a reasonable doubt 

to that, why wouldn’t the court be required to pick the one most 

favorable to the defendant? 

Ms. PODGOR. Reasonable doubt only goes to whether the person 

has committed the crime itself from a factual stance: Do they have 

sufficient evidence of that particular crime? But if we don’t know 

what the crime is, then the problem becomes: Have they committed 

it or not? Even if there is, we can’t even get to the question of reasonable doubt. The reasonable doubt question would really be our 

second question after we determined what the law is. 

Mr. SCOTT. Mr. Walsh, can you talk a little bit about the problem 

of allowing regulators to create crime without going through the 

normal legislative process when regulators can decide what is a 

crime and what is not? 

Mr. WALSH. Certainly. One of the things coming from the report 

that we found when we were doing our study was that a large percentage or significant percentage of crimes that were passed by the 

legislature actually authorized the agencies to create even more 

crimes. There wasn’t necessarily a limitation on how the agency 

had to do it. In other words, there wasn’t a requirement of whether 

there would be criminal intent or what the scope of the conduct 

was that would be prohibited. So there is no telling, when Congress 

creates those types of crimes, how many additional crimes end up 

being created by that. 

Which is one of the reasons why Professor John Coffey from Colombia has reported an estimate that up to 300,000 regulations 

may be enforced by criminal penalties. 

104 

So the issue becomes, of course, that if something is important 

enough to send a person to prison, it really should be the people’s 

elected representatives to make that decision and not delegating it 

to unelected agency officials; I don’t mean to say that in a demeaning way, but the bureaucrats in the executive branch. It really 

should be a decision made by those who are elected by the people. 

So there is a separation of powers issue as well I think that is 

implicated there and that it is the job of the Congress to make a 

decision about what the law should be. 

And especially in the area of criminal law, in particular when 

somebody’s deepest rights and liberty are at stake, that is something that really implicates some constitutional issues about 

whether the agency in the executive branch should be making 

those decisions. 

Mr. SCOTT. These are very important regulations, and we expect 

them to be for people to conform with the regulations. How do you 

enforce those regulations if you do not have the criminal code? 

Mr. WALSH. You can absolutely do it if you have a meaningful 

criminal intent or mens rea requirement, because in that instance 

the individual is on notice based on something, whatever it might 

be. Maybe it is a person who is in a highly regulated industry and 

has been informed or knows of the standard industry practices, or 

there is actual evidence that the person is on notice that this is 

what the regulation is. 

But apart from that, one of the ways to punish it is, in the first 

instance, civilly. So the first time that somebody violated one of 

these regulatory offenses and if there is no evidence of mens rea 

or criminal intent, then a civil punishment is appropriate in that 

context and would really fulfill the requirements of justice. 

On a second offense, then you could actually say the person—especially if it is the same person with the same offense—they have 

been put on notice, and maybe subsequent offenses could be punished using criminal offenses and penalties. 

Mr. SCOTT. Thank you. 

Judge Gohmert. 

Mr. GOHMERT. Thank you for all of your wonderful observations. 

Very helpful. 

I have just been looking at some of these statutes that we are 

talking about, and it causes me great chagrin to note some of the 

laws. Like Mr. Unser, in your situation, apparently since we have 

passed a law that says the Forest Service can promulgate regulations and if you violate one of those, the law inserted the words ‘‘or 

such rules and regulations shall be punished by a fine not more 

than $500 in prison, not more than 6 months.’’ It is the insertion 

of ‘‘or such rules and regulations’’ that apparently caught you, because there is a provision that the Department of Interior, some 

part thereof, says that possessing in a national forest wilderness, 

possessing or using a motor vehicle, motorboat, or motorized equipment is a crime. And also such terribly heinous activity as possessing or using a bicycle in a wilderness would get you the same 

6 months. So be careful where you ride your bike. Unbelievable. 

And I appreciate the comments that perhaps we ought to be restricting the threat of prison to those things we actually take up 

and actually come before the Judiciary. 

105 

Mr. Walsh, you indicated we have a better percentage of cases 

in which laws we pass actually included mens rea requirement or 

criminal intent. So hopefully that would be one area in which we 

can work. 

But I wanted to follow up with a couple of other questions, too. 

Mr. Schoenwetter, after the Attorney General of Honduras submitted his letter saying they didn’t think that you had violated 

Honduran law, what was the prosecutor’s response? Did you see or 

hear what the position of the prosecutor was? 

Mr. SCHOWENWETTER. We had a witness against us, a Liliana 

Paz, who was a mid-level official who had testified that we did violate Honduran regulations. They were in effect. And the position of 

the prosecutors was that the Government of Honduras was changing their opinion of the case. In other words, they changed their position, not so much the prosecutors, but in the 11th Circuit, they 

inferred that in a place like Honduras, government officials could 

be paid off in order to change their position on different ideas. So 

they just disregarded that. 

I would also like to say that we also had a letter from the President of Honduras to our President, asking not for myself but 

McNab, my co-defendant, who had some—he was well known in 

Honduras. The President wrote a letter on his behalf, asking for 

the President of the United States to intervene in this, and that 

was ignored also. 

Mr. GOHMERT. Apparently the law which created the net that 

caught you, this saws it is unlawful for any person—and it goes 

through import, export, transport, sell or receive—fish or wildlife 

taken or transported, sold in violation of any law or regulation of 

any State or in violation of any foreign law. 

You know, there was a time when most of us, and it sounds like 

all of the reasonable minds here would say—and in talking to 

Chairman Scott, we are just shocked, because our feeling is, what 

prosecutor would take a case like this? You know, if you told us a 

couple years ago no prosecutor in his right mind would take these 

cases, well, maybe that is right. But maybe we got a lot of prosecutors who are not in their right mind because they are taking these 

cases. We are just shocked. 

I know, Professor Smith, from your comment, surely as a professor, if someone had come up and given you these hypotheticals, 

you would have said, No, I know enough prosecutors; no good prosecutor would take a case like that. But apparently there are a lot 

of prosecutors perhaps that aren’t good that are taking them. 

I appreciate the Chairman’s indulgence. 

But Mr. Unser, I wanted to ask you a clarification. Were there 

any markers that marked where you went into the wilderness area, 

to your knowledge? 

Mr. UNSER. There were absolutely 1,000 percent none. Completely none. Excuse me, a frog in my throat. Charlie Bird—— 

Mr. GOHMERT. Did that come from the wilderness area? You 

have the right to remain silent. 

Mr. UNSER. But he made a fool out of himself in the court himself by not understanding where the wilderness area was, what he 

was issuing me a ticket for. 

106 

In other words, when you talk about that Jurosa area, thousands 

of people snowmobile up there. Nobody gets a ticket. It is legal. He 

thought the wilderness area went clear out to there. He didn’t even 

know that people had been snowmobiling in that area. But the wilderness area was in fact a long way west of there, and that came 

right out in the court. 

It is in the court records now, that nobody can hide. It was just 

like a jury-rigged deal. He could lie as much as he wanted to lie, 

and the judge would accept it as much as he wanted to accept it. 

It is that simple. 

Mr. GOHMERT. If you just watch TV, you know that normally 

when there is a law enforcement person who is going to ask you 

about something and they suspect that you have committed a 

crime, you get read your rights. Did anybody at any time before 

you were being charged or told you you were being charged advise 

you that you had a right to remain silent and not tell them where 

your snowmobile was that they suspected that you had violated the 

wilderness area?. 

Mr. UNSER. Not only did they not do that—I have airplanes also. 

I have a special airplane that would do high-altitude and slow 

flight. I described to millions of people—in fact, it had to be hundreds of millions of people all over the world—those articles that 

I let out way before the court date went all over to every noncommunist country on this Earth. At least that is what it was rumored to be. And I described where I left my snowmobile as an example. 

That snowmobile, it showed up 1 week before the trial, 1 week. 

That is in June, the summer. There is no snow. They finally 

showed up, theoretically had found my snowmobile in trees. The 

snowmobile was under trees. So I couldn’t see it from my airplane, 

because Charlie Bird, the government cop, had had it moved. In 

other words, I sent pictures to—— 

Mr. GOHMERT. Somebody had moved it. 

Mr. UNSER. Because why would I describe it being out in the 

open, when I don’t know that I have committed any crimes? So I 

would have no reason to lie or tell a story. But it shows up 1 week 

before the trial. But they didn’t give us a picture or even let us see 

that. And mens rea or warning—— 

Mr. GOHMERT. Did you give him his warnings that he had his 

right to remain silent after it was found? I don’t mean to be facetious about something that is so serious, where people have lost 

their freedoms because of overzealousness, but if I could have one 

more moment of indulgence. 

Professor Smith and Professor Weissmann, you both addressed 

the rule of lenity. Why do you think in these cases there is hostility 

toward not having an ambiguity afforded in the direction of the defendant? Do you have any explanation? 

Mr. SMITH. Sure. I think there are a couple of things. One, there 

are some tough-on-crime judges who just would prefer criminals go 

to jail, and they don’t want an interpretive rule that makes it hard 

for them to send criminals to jail. I think that is one part of it. 

I think another part of it is the lack of judicial humility. They 

think they can make the decisions necessary. Most judges think 

they can decide reasonably, certainly as reasonably as this body, 

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and, in their view, probably more reasonably, what should and 

shouldn’t be a crime. So they roll up their sleeves and put on their 

thinking caps and they take these ambiguous statutes and they 

misconstrue them and make the case come out right. 

Now, it is important to remember that unlike when this Congress—when a Congress or legislature passes crimes, it is acting in 

advance of a legislative act. Courts are acting retrospectively. The 

conduct has happened, and they are deciding whether that past 

conduct should be a crime. 

So they look at that conduct, and, you know, if it is a bad person, 

however one might describe that, they want to make the case come 

out right, which is to send that person to jail. And I don’t know— 

and that is just an unprincipled approach to this. They are basically making crimes, which is fundamentally at odds with our system. 

The legislature and only the legislature is supposed to declare 

crimes, and yet when courts take these ambiguous statutes in violation of the rule of lenity and expand them, they are declaring 

criminal acts that the Congress hasn’t specifically made a crime. 

I think they are also overriding legislative judgments about penalties as well. These are things that should be reserved for the legislature and not the other branches. 

And Judge Gohmert, you brought up the issue of prosecutorial 

discretion. I think most prosecutors are professionals, but I think 

it is dangerous. You know the phrase ‘‘absolute power corrupts absolutely.’’ Well, that is what overcriminalization fundamentally is 

about. It is about giving prosecutors, the executive branch, absolute 

power. 

And it is not just the executive branch, it is each and every prosecutor. The hundreds of prosecutors across this country all have 

absolute power in their own areas. So any prosecutor with an 

ounce of sense, maybe even a half an ounce, would not have 

charged Mr. Unser with this offense, but he was still charged and 

convicted. 

And these two examples here are examples of how prosecutorial 

discretion fails. And I think it is important for the Congress to realize it fails quite a lot. 

The presumption of innocence I think has turned on its head. It 

is a legal construct. It didn’t apply to prosecutors. Prosecutors, I 

think, decide, Well, Mr. Schowenwetter must have been up to no 

good, we can get him on this. And so what if we can’t get him on 

this? We know he is up to no good. 

It is that kind of speculation that drives prosecutorial decisions. 

And that is why I think it is so important that the crimes fully define the blameworthiness of the act, including the state of mind 

that is required, because then they are being forced to prove their 

suspicions in court. They are being forced to prove moral blameworthiness. 

So if they were required to show that Mr. Schoenwetter knew he 

was breaking Honduran law, he would have been acquitted. But I 

think because that wasn’t an element of the crime with which he 

was charged, they can say, Well, we think you knew, and if you 

didn’t know you should have known. And so what if the President 

108 

and the Attorney General of that country say it is not a crime? We 

know it is. 

It is that fundamental hubris that happens when you give prosecutors absolute power. 

In Mr. Unser’s case it is even a more basic issue. There is a key 

fact necessary to the blameworthiness of his act, that he is in a 

Federal wilderness area. The crime doesn’t even require him to 

have that factual knowledge. No wonder these horror stories happen. 

It is dangerous when you give any official, no matter how well 

intentioned, absolute power. That is what overcriminalization does. 

And I think it is high time for Congress to assert itself, its supremacy in this area, and to require courts to help counteract instead 

of facilitate overcriminalization. 

Ms. PODGOR. I have nothing to add to that. 

Mr. SCOTT. Thank you. 

Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Scott, and your Ranking 

Member, who have done a good job on this Committee. We have 

covered so many subject areas over the years coming out of the 

Crime Committee. 

I would like to ask this question of whether or not we should 

begin to put together some sort of place to house all of the Unser, 

Schoenwetter, cases in America. I mean, we have got two here. But 

can you imagine how many there might be if this Committee—not 

to invite for hearings, because we have become an inferior court of 

our own—but what about a place to capture this information that 

would serve as a reservoir for our five other experts that are here 

to begin to get a larger picture of this? 

It seems to me that we have two cases. If you give me—well, I 

guess we would be talking about the next session of Congress now, 

because we are almost out by next week, it is predicted. But there 

ought to be a place where people can communicate any problems 

of this nature, and they would go into a specific place. 

The problem is that right now Members of Congress get letters 

about these kinds of cases, the Unser case, the Schoenwetter case, 

but they are individual cases in their congressional district. I suppose Senators get the same thing in their State. 

So what if we were to put these into, say, the Crime Committee, 

or another body designated by the Crime Committee, so that there 

would be a repository in the American legal system of what has 

happened, to give us a clearer picture; and we wouldn’t have to 

hold an almost infinite number of hearings, hearing special cases 

of other peopling that are so aggrieved. 

And can I invite our distinguished witnesses—Brian Walsh, do 

you want to take a crack at that please, sir? 

Mr. WALSH. I think it is a terrific idea. I can’t say it is quite to 

the level or to the extent that you have suggested yet, but there 

have been some efforts that we have undertaken in collaboration 

with others. I know that NACDL, for example, collects these types 

of cases. And also we have an Overcriminalized.com Web site 

where we have begun to publish these stories. 

So it is an opportunity for us to have a sort of central place. People will e-mail us on a fairly regular basis, and not all of the stories 

109 

have been published yet, but we would certainly be interested in 

pursuing that. 

One of the other features that we developed with NACDL was an 

e-mail list notification of new bills going through Congress that actually have these types of provisions in them; and people can subscribe to that, the Legislative Update Alert. But we are working to 

try to do exactly what you are suggesting. And we would be delighted to help the Committee to help develop that even further. 

Professor Smith also encouraged me to mention ‘‘One Nation 

Under Arrest’’ which is a book we published that has some of these 

stories in them, about a couple dozen. 

Mr. WEISSMAN. I agree with that. Oversight is an important 

function of this body, as you know, and that is fundamentally what 

you are talking about, oversight of how the executive branch is 

handling these cases. So I think that is important to do. 

But I do want to caution, you have been focusing on these esoteric, highly technical crimes. It is easy to do that. And you get a 

lot of fair notice problems that is fairly serious there. But the problem of overcriminalization exists even with real crimes. I think this 

goes back to something Judge Gohmert mentioned. Even real 

crimes that we all would agree are heinous, immoral acts, you still 

have poor crime definitions causing problems there. 

For example, the Federal child pornography statute. It requires, 

as passed by Congress, you have to know you are receiving something and you have to know that the thing you are receiving is a 

visual depiction. That is all Congress said about the mens rea requirements. What don’t you have to know? What matters? You 

don’t have to know that it is sexually explicit. You don’t have to 

know that it is minors engaging in sex. Congress did not require 

mens rea. Those are the things that you need to know. Those are 

the facts that are essential to say it is blameworthiness. 

And the Supreme Court construed that statute and they read in 

a mens rea requirement, so they fixed that problem. But the fact 

is it was a problem. 

The fact, also going back to prosecutorial discretion, is the Justice Department argued in that case, the excitement video case, 

Oh, you don’t have to know it is sexually explicit conduct involving 

minors. As long as you know it is a video, that is enough. I mean, 

that is insane. 

But the point is simply to illustrate, again, the limitations of 

prosecutorial discretion and also to see that even when we are talking about real crimes, malem in se real crimes, crimes that should 

be punished, there, too, you have problems with crime definition. 

So it is not just the technical regulatory offenses, it is all crimes. 

That is how deep and corrosive the problem of overcriminalization 

is. 

Mr. CONYERS. You are quite right that merely collecting these 

without making that kind of analysis would be overlooking a very 

huge part of the problem. 

What about the president of the Defense Lawyers Association? 

How does this strike you, sir. 

Mr. LAVINE. Certainly we are in the process, working with Heritage Foundation and others, to try to collect the anecdotal evidence 

to support the reforms that we are asking Congress to enact. And 

110 

part of that deals with the two separate issues, as Professor Smith 

discussed. One is the overcriminalization issue itself and the requirement that statutes are particularly described with the conduct 

that the citizen should know is wrong, both the act itself and the 

mental state that goes along with it. That is what we have been 

talking about foe the last couple of hours and weeks with this report. 

The other issue is overfederalization, if I may be so bold, as a 

perspective from a practicing lawyer who has been trying cases for 

over 36 years, 11 years as a prosecutor, 25 years as a defense lawyer. The reality is prosecutors don’t often use the appropriate discretion, and when they don’t, judges are not acting independently. 

Which is why we are suggesting the rule of lenity, and where you 

need to put this in perspective. 

Judge Gohmert is a State court judge in east Texas where it was 

his—Judge Poe, it was the same thing. Nobody would say that 

these judges were not independent. But in some Federal circuits, 

the reality is otherwise. The judges rubber-stamp what prosecutors 

do. 

So in the context of what we are attempting to do is to collect 

these anecdotal stories to eventually being able to present them to 

you, so that you can see not just the construct that we are talking 

about here, that we have really been using the ‘‘Without Intent’’ report to give you the basics of the 109th Congress and how that was 

a snapshot of things that were wrong in that context. 

Obviously the problem is much larger than that. And when you 

see it here, you assume that judges would exercise discretion in 

Mr. Schoenwetter’s case, and you assume prosecutors would exercise discretion in Mr. Unser’s case, but the fact is they didn’t. 

And in the Georgia Thompson case we spoke about earlier, they 

didn’t. And the reason they didn’t is manifold. Maybe the local politics, maybe the regulatory agency is looking to justify its budget for 

that year and has to have so many scalps. Maybe that regulatory 

agency, I suspect in the Unser case, was pushing the local prosecutor and the judge did not have the independence—we might call 

it something else, might not be public—to say that this is wrong. 

There has to be a mental state and intentional construct to it. 

There has to be a conscious objective or desire to engage in conduct 

that is against the law. 

So to answer your question shortly, yes, we will do everything we 

can to attempt to collect these and find maybe perhaps a way to 

get them to you in a repository that would help you to expand some 

of the issues we talked about here today. 

Mr. CONYERS. Thank you so much. 

Just close on this, Chairman Scott, and Judge Gohmert. I still 

think that the drug problem—am I right that we put a trillion dollars in fighting the so-called drug war over the last decades? We 

are not sure how much money we spent. 

We are not sure how much money we spent. But the whole idea 

is that we have put an enormous amount of Federal money into 

this. States have also put an enormous amount of money, and yet 

the treatment of this offense as a health problem is minimized. 

Many people are imprisoned with a health problem which is only 

aggravated, certainly while they are there, and maybe even worse 

111 

when they get out. And it overlooks a sort of more commonsense 

approach. 

So the last thing that I think makes this a good idea is that, 

more than anything else, we educate the American people; the citizens themselves begin to understand the kind of problems that we 

have taken up here today with all of you experts. 

And so I thank you very much for the time, and I hope that we 

can continue this discussion after this hearing. 

Mr. SCOTT. Thank you. 

I just have one final question for Mr. Walsh. 

You have presented Subcommittee staff with draft legislation as 

to what we should be doing about reform. Can you describe that 

legislation to us? 

Mr. WALSH. The draft is based on the recommendation in the 

‘‘Without Intent’’ report that basically would require Congress to 

analyze what it is that it is doing each time it criminalizes. So for 

any new or modified criminal offense or penalty that went through 

Congress, the recommendation would be in that legislation that 

there would have to be a report generated before there was floor 

debate on the criminal penalties. 

There is already so much criminalization that it makes sense 

that if there is going to be any new criminalization, Congress 

should have to describe what is the problem we are trying to solve 

here, with specificity. How is the mens rea requirement supposed 

to work? What about existing Federal and State law? How does 

that overlap with the new law that is being proposed? 

In addition, how does this impact the federalism implications? 

What are the implications for that, that both Mr. Lavine and Professor Smith have and others mentioned, during this panel? So that 

list of requirements would basically help Congress really to stop, 

look, and focus on the work that it is doing in criminalization, decide whether this is really needed? Is there really a motivating factor, or could this act already be charged? 

Many times the crimes that we hear about that result in new 

criminalization are in fact already charged. One of the great examples of this is the carjacking offenses that ended up being Federal 

crimes, and yet those specific crimes that were used were a horrible tragic crime, but the perpetrators were both sentenced to life 

sentences in Maryland under State law. So there was already existing law; there wasn’t a need for Federal law in this case. 

So explaining what it is that Congress is doing. And in addition, 

the recommendation of NACDL and the Heritage Foundation that 

is embodied in that legislation would be that the agencies would 

have to describe all their new criminalization. Right now, there is 

so much of it that it is hard to really get a handle on when the 

agencies propose rules that have criminal penalties or offenses in 

them. 

In addition, whenever these agencies make a referral to the Justice Department for prosecution, what is the criminal offense in 

statutory code that they are saying justifies this criminal referral? 

What is the regulation in the Code of Federal Regulations that justifies it? That basically puts them on notice and also puts Congress 

on notice of how these new laws and these new regulations are 

being used. 

112 

So that is the general gist of it. We think that there are some 

really good points in it that would be useful to the Committee for 

its consideration as it is considering legislation. 

Mr. SCOTT. Thank you. 

I had a conversation with somebody earlier today and we mentioned carjacking. And if you are the victim of carjacking, you do 

not call the FBI, you call the local police. 

Mr. WALSH. That is right. 

Mr. SCOTT. Judge Gohmert. 

Mr. GOHMERT. Thank you, Chairman. 

Looking at this—and of course, Mr. Walsh, the book you put together, ‘‘One Nation Under Arrest,’’ really eye-opening. And I mentioned before, it makes Kafka’s novels look tame compared to what 

we have done to people, all the uncertainty. 

I look at a law like this that has so grievously, adversely affected 

Mr. Schoenwetter. When you include language in a law that says 

‘‘in violation of any law or regulation of any State or in violation 

of any foreign law,’’ we just embraced every foreign law in every 

country? I know this was passed before I ever got to Congress, but 

I bet there is language in some that have been passed more recently that include broad language like that, but we have no business embracing all foreign laws. 

And I would tend to think that one of the solutions, from hearing 

our panelists, the testimony, is that I am not sure that we should 

have any law that is punishable by incarceration that is not made 

a law by the legislative body. Leaving that to regulators that are 

unelected, some of them are unappointed—they are certainly 

unconfirmed, they are just unaccountable—out there passing regulations as they see fit, heck, they may have even come up with the 

regulation that says you can’t park a snowmobile under a tree for 

all we know. But if it is serious enough to take away someone’s 

freedom, then it ought to be serious enough to come before Congress. 

And then, of course, the criminal intent issue, to require that 

where there is no mention that there has to be some criminal intent. These statutes that captured the acts of Mr. Schoenwetter 

and Mr. Unser, there appears to be a knowing requirement—not 

knowing of any violation, but knowing that you are on a snowmobile or knowing that you are purchasing lobsters, and I am not 

sure how much sense that made. I would have thought perhaps 

that lobsters would be safer and cleaner in a plastic bag instead 

of cardboard. Who knew? But anyway, it just seems like if it is important enough to take away somebody’s freedom, it ought to come 

from the legislative branch. 

Chairman Conyers, I know that you and Chairman Scott have 

both made a great deal of effort over the last 31⁄2 years to do oversight, but there is just so much to do. I think you did better, perhaps, than we did my first couple of years here, but I appreciate 

your efforts in that regard. But we can see there is just so much 

area that needs oversight. We better clean up the laws so that it 

is not quite so broad in the areas of abuse, so that there is not as 

much discretion as Professor Smith points out has created some of 

the problems. 

113 

But I appreciate former Attorney General Ed Meese’s efforts in 

trying to push this and bringing this to the forefront. And regardless, you never know how politics is, whether Democrats or Republicans are in the majority after this, it doesn’t matter, this is so serious. We are talking about people’s freedom and the way it adversely affects people’s faith in their government, or lack thereof. 

We have got to get this cleaned up. Thank you very much for helping us bring this to the front. 

Mr. SCHOENWETTER. Chairman Scott, can I make a remark in regard to something Judge Gohmert said? 

Mr. SCOTT. Yes. 

Mr. SCHOENWETTER. You talk about the Lacey Act. What happened with us was—and this is to the best of my recollection—the 

Lacey Act was rewritten. The original Lacey Act said ‘‘any foreign 

law or regulation.’’ The rewriting of it said ‘‘any foreign law.’’ So 

we objected on the grounds that we were accused of violating regulations. It was semantics, of course. But the judge found that it was 

the intent of Congress to add ‘‘regulations’’ into that; that they just 

forgot to do it. 

So actually, I think I spent—I was sentenced to 8 years in prison 

because Congress intended to put in ‘‘regulations’’ but decided it 

just was understood. 

Mr. GOHMERT. So when I talked in terms of us allowing Federal 

unelected, unaccountable bureaucrats to make regulations that 

capture people, heaven knows how those regulator-makers in other 

countries were doing that. It sounds like in Honduras they certainly disagreed with our government’s approach to their own laws. 

So I appreciate that point. 

Thanks, Chairman. 

Mr. SCHOENWETTER. Thank you, Judge Gohmert. 

Mr. SCOTT. I just have one last question for Professor Podgor. 

Would one short bill be sufficient to create a default of mens rea? 

Ms. PODGOR. I think so. It is one provision within the Model 

Penal Code, so I see no reason why it couldn’t be accomplished 

with one short bill. 

Mr. SCOTT. I thank all of our witnesses for your testimony. 

Without objection, the joint report ‘‘Without Intent, How Congress Is Eroding the Criminal Intent Requirement in Federal Law’’ 

by the Heritage Foundation and National Association of Criminal 

Defense Lawyers will be included in the record. 

The memo, ‘‘Enacting Principled, Nonpartisan Criminal-Law Reform, A Memo to President-elect Obama’’ by Brian Walsh will also 

be included in the record. 

The hearing record will remain open for 1 week for submission 

of additional materials. We may have written questions for you. If 

you would respond to them, if they are sent to you, as promptly as 

possible so your answers can be made part of the record. 

Without objection, the Subcommittee stands adjourned. Thank 

you very much. 

[Whereupon, at 5:06 p.m., the Subcommittee was adjourned.] 

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