Courts have long struggled with interpreting (and thus instructing a jury on) the statutory element of willfulness. This frequently manifests in the challenge of expressing what level of knowledge the defendant must possess about the law he is accused of violating. Reflective of this challenge, courts have characterized the element of willfulness as “bedeviling,” turning as it does on a “chameleon” word whose construction is often dependent on its context1. Embracing the chameleon concept, courts have created varying standards that become increasingly difficult for the government to prove as the statutory proscription in question becomes more complex and less intuitive. The following three standards (in order of increasing proof) have emerged as leading candidates:

  1. Baseline level: Simple intentionality (where ignorance of the law is no excuse).
  2. Intermediate level (Bryan standard): The defendant intended to violate some law (general intent) but need not have known of the charged law’s specific commands.
  3. Heightened level (Ratzlaf / Cheek standard): The defendant knew of the legal duty but voluntarily and intentionally violated it.2

The purpose of applying a heightened standard of willfulness is to avoid ensnaring individuals engaged in apparently innocent activity — although defendants often (and understandably) take a home-run swing and urge courts to apply the heightened standard.

In the recent case United States v. Bishop, the 4th Circuit affirmed a conviction for willfully attempting to export ammunition without a license under the Arms Export Control Act (AECA). The defendant argued, unsuccessfully, that he did not know that the particular ammunition he was shipping to Jordan (9 mm and 7.62×39 mm rounds used in AK-47 assault rifles) was subject to export controls under the AECA and International Traffic in Arms Regulations (ITAR). The defendant argued that, without such statutory knowledge, he could not have willfully violated the statute. The court rejected the defendant’s argument that the heightened standard for willfulness articulated in Cheek v. United States and Ratzlaf v. United States should apply, distinguishing those cases as involving “highly technical” subjects (federal income tax and financial transaction structuring). Accordingly, in order to prevent capturing innocent conduct, conviction under those laws required proof that the defendants were aware of the specific statutory commands they were alleged to have violated.

Instead, the 4th Circuit in Bishop applied the standard articulated in Bryan v. United States, in which the U.S. Supreme Court announced: “the willfulness requirement [of the Firearms Owners’ Protection Act (FOPA)] does not carve out an exception to the traditional rule that ignorance of the law is no excuse; knowledge that the conduct is unlawful is all that is required.”

In articulating its rationale for applying the Bryan general awareness of unlawfulness standard, the 4th Circuit appears to have borrowed from the law of torts, inquiring into the mind of the reasonable man to determine whether an enhanced mens rea is required to avoid criminalizing the conduct of innocent, unwitting actors. The court reasoned that “the export of 9mm and AK-47 ammunition to Jordan would quickly strike someone of ordinary intelligence as potentially unlawful.” This statement rings true insofar as shipping nearly “10,000 rounds of small-arms ammunition” overseas via government contract carrier probably should give someone pause in an era when the USPS broadly prohibits shipping hazardous materials internationally.

Moving statute-by-statute, there is little clarity as to what standard of willfulness will apply until a court decodes the statutory context. Courts have been reluctant, however, to extend the heightened standard. Bishop is just the most recent case to reject the heightened standard of willfulness in favor of the Bryan “intermediate” standard3. For example, in 2013 two courts considering the Federal Election Campaign Act (FECA)4 determined that this statutory structure is sufficiently complex to risk criminalizing seemingly innocent conduct, but applied the intermediate Bryan standard rather than the heightened standard of Ratzlaf and Cheek.5

For defendants, the Bryan intermediate standard still requires proof of some awareness that the conduct in question violated the law. This awareness may be shown “by conduct that is ‘not consistent with a good-faith belief in the legality of the enterprise.’”6 In Bishop, this conduct was satisfied through proof that the defendant failed to disclose the presence of ammunition in his personal effects, certified that his belongings did not contain “any unauthorized explosives, destructive devices or hazardous materials,” and admitted that he attempted to ship the ammunition because it was prohibitively expensive to purchase in Jordan (contradicting his statement to the contract carrier that the ammunition was a gift).


1United States v. Danielczyk, 788 F. Supp. 2d 472, 486-87 (E.D. Va. 2011).
2For a discussion of these standards, see id. at 487-89; see also United States v. George, 386 F.3d 383 (2d Cir. 2004).
3Though in light of the court’s observation that someone of ordinary intelligence should recognize that the law may regulate the international shipment of ammunition, coupled with the maxim that ignorance is no excuse for the law, one wonders whether the baseline standard of willfulness would have been sufficient to shield innocent conduct from prosecution under the AECA.
4See United States v. Whittemore, 944 F. Supp. 2d 1003 (D. Nev. 2013); United States v. Danielczyk, 917 F. Supp. 2d 573 (E.D. Va. 2013); see also Danielczyk, 788 F. Supp. 2d.
5The second Danielczyk case is particular noteworthy because the court affirmed its application of the intermediate standard of willfulness despite the fact that “both Defendants and the Government . . . seemed to take as a given that ‘willfulness’ in this case required that Defendants knowingly violate the law’s specific commands, citing Ratzlaf.” 917 F. Supp. 2d at 576.
6Whittemore, F. Supp. 2d at 1010 (citing Bryan, 524 U.S. at 189 n.8).