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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-3483
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINA KAY GARRETT,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana
______________________________________________
(February 18, 1993)
Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.
GARWOOD, Circuit Judge:
Like many people trying to catch a plane around the holidays,
Regina Kay Garrett was in a hurry. Unlike most, she forgot that
she had a gun in her purse, or so she says. The principal question
we decide today is whether the federal statute that criminalizes
this conduct requires any degree of mens rea as an element of the
offense. We hold that a "should have known" standard applies.
Facts and Proceedings Below
On December 18, 1990, Regina Kay Garrett was a ticketed
passenger for and attempted to board flight 457 of L'Express
Airlines, a regularly scheduled commercial commuter airline, from

New Orleans to Alexandria, Louisiana. Passing through the New
Orleans airport security, Garrett was stopped when the security
guard monitoring the X-ray scanner noticed a dark mass in the hand
bag that Garrett had placed on the conveyor belt. A consensual
search of the bag was conducted and a small hand gun was discovered
therein. The gun, a Browning .25 caliber semi-automatic, was
loaded with six rounds in the magazine and one in the chamber.
Garrett told security personnel that she had forgotten that the gun
was in her purse.1
Garrett was charged in a one count bill of information with
attempting to board an aircraft with a concealed weapon in
violation of the Federal Aviation Act (the Act or the statute).
See 49 U.S.C. App. § 1472(l)(1).2 Garrett waived her right to a
1
Airport security officials confiscate approximately 2,500
firearms each year, or about seven a day. See McDowell, Guns at
Airports, an Everyday Event, N.Y. Times, Dec. 29, 1992, at A9.
Recently, singer and pianist Harry Connick, Jr., was arrested in
New York's John F. Kennedy International Airport for this
offense. Notably, the Times reports that, "Most of those
arrested . . . are like Mr. Connick: they say they simply forgot
they were carrying guns to the airport." Id.
2
49 U.S.C. App. § 1472(l) provides in pertinent part:
"(1) With respect to any aircraft in, or intended for
operation in air transportation or intrastate air
transportation, whoeverSQ(A) while aboard, or while
attempting to board such aircraft has on or about his
person or his property a concealed deadly or dangerous
weapon which is, or could be, accessible to such person
in flight; . . . shall be fined not more than $10,000
or imprisoned not more than one year, or both."
We pause to mention that the statute at issue in this appeal
is section 1472(l), not section 1472(1). The typographical
similarity between the lower case "l" and the number one has been
the source of some confusion surrounding the citation of section
1472. See United States v. Mena, 933 F.2d 19, 22 n.2 (1st Cir.
1991).
2

jury trial and the cause was tried by consent before a United
States Magistrate Judge. On January 14, 1992, the magistrate
denied Garrett's motion to dismiss the bill of information. On
January 23, 1992, a bench trial was held and Garrett was found
guilty. Garrett was sentenced to five years' probation and a $25
special assessment. As a special condition of probation, the
magistrate ordered Garrett to reside for six months in a halfway
house. Garrett appealed her conviction and sentence to the
district court, 18 U.S.C. § 3402, and, on May 5, 1992, the district
court affirmed the magistrate's decision. Garrett made a timely
appeal to this Court. 28 U.S.C. § 1291.
Discussion
On appeal, Garrett raises three points of error. First,
Garrett argues that the Act does not apply to her because her
flight was to be wholly within the state of Louisiana. Second, she
argues that her conviction is invalid because the magistrate did
not find that she had actual knowledge that the gun was in her
purse.3 Third, Garrett argues that when the magistrate calculated
her sentence she was entitled to, but did not receive, a three
point reduction of her offense level pursuant to section
2k1.5(b)(3) of the U.S. Sentencing Guidelines (U.S.S.G.).
I. The Statute's Applicability
Garrett challenges the applicability of the statute to her
conduct. By its own terms, section 1472(l) applies to "any
3
Garrett also makes the related argument that the bill of
information with which she was charged was insufficient, and
should have been dismissed, because it did not allege actual
knowledge of the gun's presence as an element of the crime.
3

aircraft in, or intended for operation in air transportation or
intrastate air transportation." The latter term, "intrastate air
transportation" is defined elsewhere in the statute as "the
carriage of persons or property as a common carrier for
compensation or hire, by turbojet-powered aircraft capable of
carrying thirty or more persons, wholly within the same State of
the United States." 49 U.S.C. App. § 1301(26). The government
concedes, as it must, that the plane Garrett attempted to board was
not in "intrastate air transportation"; the L'Express aircraft at
issueSQa Beech 1900 turbopropSQseats only nineteen passengers.

The real question, then, is whether the plane was engaged in
"air transportation," which the statute defines as "interstate,
overseas, or foreign air transportation or the transportation of
mail by aircraft." 49 U.S.C. § 1301(10). There is no evidence or
claim that the plane was engaged in overseas or foreign air
transportation, or carried mail. Relying on the term "interstate"
as its textual hook, the government observes that on December 18,
1990, the L'Express plane carried passengers to multiple
destinations in three states.4 The government points out that the
plane crossed state borders on the next day also. Garrett responds
that the flight for which she was ticketed was wholly within the
4
On that day, the aircraft originated in Birmingham, Alabama,
and flew to Mobile, Alabama, before proceeding to three Louisiana
destinations: New Orleans, Lafayette, and Lake Charles. From
Lake Charles, the plane flew to Houston, Texas. From Houston, it
flew back to Lake Charles, to Lafayette, and then to New Orleans,
where Garrett attempted to board. From New Orleans, the plane
flew to three cities in Louisiana (Alexandria, Shreveport, and
Baton Rouge) before finally returning to New Orleans. All of
these were regularly-scheduled L'Express Airline flights.
4

state of LouisianaSQfrom New Orleans to AlexandriaSQand thus the
plane would not have been in interstate transportation during the
time that she was to be on board. To underscore the singularity of
her flight, Garrett notes that the plane changed L'Express flight
numbers upon its arrival in New Orleans from Houston, Lake Charles,
and Lafayette, and received a new crew.
In essence, the parties' dispute is over what slice of time we
should examine in order to characterize the plane's movements. The
government would have us view the plane's journeys over a period of
one or two days; Garrett wants us to examine only that span of time
during which she would have been a passenger. The statute,
unfortunately, provides no guidance as to the proper scope of the
inquiry and we decline to formulate a precise rule at this time.
On the facts of this case, we hold that the plane was intended for
operation in interstate transportation.
On the same day and not long before L'Express Airlines flight
457 was scheduled to depart from New Orleans for Alexandria, the
plane had come from Houston, Texas, on a regularly scheduled
L'Express Airlines flight.5 It is thus clear that this plane was
intended, in part, to carry passengers who might wish to fly
L'Express between Houston and Alexandria.6 Thus, on the flight on
which Garrett was scheduled to fly, the aircraft was intended to be
5
The plane left Houston as L'Express Airlines flight 331 at
1:00 p.m. and landed in New Orleans (after quick stops in Lake
Charles and Lafayette) at 3:10 p.m. Flight 457 left New Orleans
(sans Ms. Garrett) at 4:00 p.m.
6
Flight 457 went to Alexandria, Shreveport, and Baton Rouge,
before returning to the Crescent City.
5

available for the purpose of, and could actually have been,
transporting passengers who were traveling from one state to
another. This satisfies us that the plane came within the ambit of
section 1472(l) at least during Garrett's flight. There is no
evidence that any Houston passengers in fact flew on flight 457,
and we hence assume that none actually did. But, section 1472
applies to "any aircraft in, or intended for operation in"
interstate air transportation. Therefore, it is enough, we think,
that the flight 457 aircraft was operated with the intent of its
being a potential component of someone's interstate travels on
L'Express Airlines.7
II. The Statute's Mens Rea Requirement
Garrett's next argument on appeal is that her conviction
should be overturned because the government did not prove, nor even
attempt to prove, that she had knowledge that the gun was in her
purse when she attempted to board the L'Express flight. The
government's position is that section 1472(l)(1) is a strict
liability offense and contains no intent requirement whatsoever.
The magistrate, eschewing both extremes, declared that "this Court
is of the opinion that it would be consistent with Fifth Circuit
jurisprudence and the United States Constitution to apply a 'should
7
We do not foreclose the possibility that a broader principle
might be applied to facts such as these to support a finding that
a plane was engaged in interstate air transportation. But that
decision must wait for another day. Cf. United States v.
Delacerda, 474 F.2d 857, 858 (9th Cir. 1973)(holding that an
airline was engaged in air transportation under 49 U.S.C. §
1301(10) where the airline "was properly engaged in the
transportation of United States mails on some routes")(per
curiam; emphasis added).
6

have known' standard to this misdemeanor offense." We agree.
A.
Whether section 1472(l)(1) contains a mens rea requirement is
a question that a number of other circuit courts seemingly
addressed during the 1970's. The government cites United States v.
Flum, 518 F.2d 39 (8th Cir.)(en banc), cert. denied, 96 S.Ct. 454
(1975); United States v. Dishman, 486 F.2d 727 (9th Cir. 1973); and
United States v. Margraf, 483 F.2d 708 (3d Cir.)(en banc), vacated
and remanded, 94 S.Ct. 833 (1973); for the proposition that section
1472(l)(1) contains no intent requirement. Garrett offers United
States v. Lee, 539 F.2d 606 (6th Cir. 1976), for the counter
proposition.8 We believe that none of these courts were squarely
presented with, or actually decided, the precise issue before us.
In Flum, the defendant attempted to board an aircraft with a
switchblade and a butcher knife in his carry-on baggage. The issue
in Flum, however, was not whether the defendant knew that he was
carrying the knives, but rather whether he had intended to conceal
them:
"In this appeal Flum contends that he was convicted upon
insufficient evidence since there was no evidence tending
to establish that he intended to conceal the knives which
were discovered during a preboarding search of his carry-
on luggage and personal belongings." 518 F.2d at 40
(footnote omitted; emphasis added).
There is no suggestion in Flum that the defendant did not know that
he was carrying the knives. Indeed, the court pointedly observed
that, "No issue of scienter is present in this case. It is
8
For a general discussion of these four cases, see
Annotation, 109 A.L.R.Fed. 488, 526-28 (1992).
7

undisputed that defendant knew the nature and approximate location
of each of the knives." Id. at 44 n.10. On the merits, the court
held that intent to conceal is not an element of a section 1472(l)
violation.9
In Dishman, the defendant was carrying a .22 caliber starter
pistol. The question presented to the Ninth Circuit was whether
the gun, which was capable only of firing blanks, was a "deadly or
dangerous weapon" within the meaning of the statute. (The answer
was yes.) Thus, despite such general statements as "[s]ubsection
(l) is a non-intent statute," 486 F.2d at 732, it is clear that the
defendant's knowledge was not an issue before the Dishman court.
To the extent that Dishman discussed an intent requirement, what
the court said was that, to be guilty of violating section 1472(l),
one need not intend to use the weapon in a dangerous way while in
flight: "Any necessary element of present or later developed
intent to make use of the 'deadly and dangerous' weapon in the
commission of a crime while aboard the aircraft is conspicuous by
its utter absence." Id. at 730.10
9
Nor has Flum been given a broader interpretation in
subsequent cases. See United States v. Collins, 949 F.2d 1029,
1031 (8th Cir. 1991). Collins is the only reported Eighth
Circuit case to cite Flum.
10
The government also cites the Ninth Circuit case of United
States v. Wallace, 800 F.2d 1509 (1986), cert. denied, 107 S.Ct.
1901 (1987). However, Wallace merely holds that (following
Dishman) a stun gun is a dangerous weapon under the statute and
that (following Flum) intent to conceal is not required by
section 1472(l). The latter holding is arguably dicta in that,
apart from the question of a stun gun's dangerousness, "the
parties stipulated to the existence of all elements necessary for
a conviction under 49 U.S.C. § 1472(l)." 800 F.2d at 1513. The
only Ninth Circuit case other than Wallace to cite Dishman is
United States v. Patterson, 664 F.2d 1346, 1348 (1982), which
8

In Margraf, the defendant attempted to board while carrying a
folding pocket knife. The question before the Third Circuit was
not whether the defendant knew that he was carrying the knife or
what its physical characteristics were (which he plainly did), but
rather whether he knew that the knife was legally a deadly or
dangerous weapon. In other words, the knowledge issue in Margraf
was whether section 1472(l) contains a specific intent requirement.
To be sure, there is language in Margraf which would suggest a
broader reading. See, e.g., 483 F.2d at 720 (Seitz, C.J.,
dissenting)("Under the majority's standard, no intent or knowledge
of any kind is required for conviction."). However, there is no
doubt that the issue before Margraf was specific intent:
"[Appellant] claims that it is necessary for the
government to prove a specific intent to carry a
'concealed deadly or dangerous weapon' onto a plane in
order for a defendant to be convicted. In other words,
it is not sufficient for the government to show that a
defendant was boarding a plane with a concealed deadly
weapon on his person; it must go further and show that
the defendant was aware that his weapon was dangerous,
and knowing this, still intended to carry the weapon
aboard." Id. at 709 (emphasis added).
The Third Circuit rejected this argument and instead affirmed the
defendant's conviction on the ground that he "should have been
aware that it could be used as a deadly weapon." Id. at 712.11
cited Dishman for the familiar proposition that criminal statutes
are to be construed narrowly in favor of the defendant.
11
Margraf's subsequent history was curious. At the urging of
the Solicitor General, the Supreme Court granted certiorari in
Margraf and then vacated and remanded the decision to the Third
Circuit. 94 S.Ct. 833 (1973). The Solicitor General recommended
that the complaint against Margraf be dismissed because his
knife, which had only a 3 1/4 inch blade, did not meet the
definition of a "weapon or dangerous object" under FAA
guidelines. The Solicitor General did not concede, however, that
9

The case cited by Garrett, United States v. Lee, is a
procedurally peculiar case. The defendant-appellant, Billy Ray
Lee, was stopped with a hand gun in his brief case. Lee claimed
that he had placed the gun in the case the night before and had
forgotten that it was there. Lee consented to be tried by a
magistrate judge, who found him guilty as charged. On the issue of
intent, the magistrate held that it was unnecessary to determine
whether Lee knew that the gun was in his brief case, because the
statute did not make intent an element of the offense. Lee
appealed to the district court, which reversed on the ground that
knowledge of the presence of the weapon is an element of the crime.
The district court then remanded to the magistrate to determine
whether Lee had knowingly possessed the gun. After the case was
remanded, the magistrate denied Lee's motion seeking a jury trial,
retried the case upon the same evidence, and once again found Lee
guilty. The district court affirmed the magistrate's decision and
Lee appealed to the Sixth Circuit. Lee raised as error both the
section 1472(l) contains any requirement of specific intent or
scienter. Upon remand, the Third Circuit ordered the district
court to dismiss the case. 493 F.2d 1206 (1974).
It is uncertain whether Margraf, which has been cited only
twice in the Third Circuit, remains good law. United States v.
Harris, 381 F.Supp. 1095 (E.D.Pa.1974), broadly pronounced that
"as long as [Margraf] remains the law of this Circuit, knowledge
plainly is not a requisite for a conviction under 49 U.S.C. §
1472(l)." Id. at 1101. That conclusion, however, is pure dictum
inasmuch as the court found ample evidence that the defendant had
such knowledge. See id. ("absent the Magistrate's finding of
knowledge, I would apply [Margraf] to the present
action")(emphasis added; footnote omitted). The other case
citing Margraf, United States v. Wilkinson, 389 F.Supp. 465, 468
(W.D.Pa.), aff'd, 521 F.2d 1400 (3d Cir. 1975)(table), merely
mentions the dissent in Margraf for a proposition unrelated to
section 1472(l)'s intent requirement.
10

magistrate's refusal to permit him to withdraw his earlier jury
trial waiver and the holding that knowing possession was an element
of section 1472(l).12
The Sixth Circuit agreed with the district court that "§ 1472
required a finding that appellant knew of the presence of the
concealed dangerous weapon." Lee, 539 F.2d at 608. In the very
next sentence, however, the court explained that, "Nevertheless,
Lee's conviction must be reversed because he should have been
permitted to withdraw his consent to trial before a magistrate."
Because Lee's conviction was reversed on that ground, the court's
approval of the district court's conclusion as to section
1472(l)(1)'s mens rea requirement is dicta.13
In sum, the precise issue before this Court was not present in
Flum, Dishman, or Margraf, and was addressed in Lee only by dicta;
12
Strangely enough, Lee raised the latter issue at the request
of the U.S. Attorney.
13
After the Sixth Circuit's decision, the government proceeded
against Lee a third time. "It has been established as the law of
this case," a subsequent court noted, that "Mr. Lee cannot be
convicted of violating 49 U.S.C. § 1472(l) if he did not knowSQ
had forgottenSQthat he had the weapon involved in his brief
case." United States v. Lee, 435 F.Supp. 974, 982
(E.D.Tenn.1976). However, in support of this proposition the
court cited not the Sixth Circuit's Lee opinion, but the district
court decision prior to Lee which had held that section
1472(l)(1) requires knowledge.
Lee has been cited in the Sixth Circuit only twice, both
times for propositions related to a defendant's withdrawal of
consent to trial by magistrate. See United States v. Martin, 704
F.2d 267, 271 (6th Cir. 1983); United States v. Groth, 682 F.2d
578, 579 (6th Cir. 1982). But cf. United States v. Busic, 592
F.2d 13, 21 (2d Cir. 1978)(citing Lee for the proposition that
"[t]he offense of aircraft piracy . . . requires a showing of
general criminal intent, not a showing of specific criminal
intent.").
11

we appear to be the first appellate court to pass on the question.14
B.
In determining whether section 1472(l)(1) contains a mens rea
requirement, our overarching task is to give effect to the intent
of the Congress. The Congress is fully capable of creating strict
liability crimes when it is their intent to do so. See Liparota v.
United States, 105 S.Ct. 2084, 2087 (1985)("The definition of the
elements of a criminal offense is entrusted to the legislature,
particularly in the case of federal crimes, which are solely
creatures of statute.")(citation omitted). Of course, the Congress
cannot do so in a way that transgresses constitutional boundaries.15
14
One district court case that did squarely address the issue
is United States v. Pou, 484 F.Supp. 972 (S.D.Fla.1979). In Pou,
the defendant was charged with a violation of section 1472(l) and
moved to dismiss the bill of information with which he was
charged on the ground that it did not allege knowledge as an
element of the crime. Citing Lee, the Pou court agreed with the
defendant: "Knowledge of the presence of a concealed dangerous
weapon is an element of the offense codified in 49 U.S.C.A. §
1472." Id. at 974. We have found no reported citations to Pou,
and, as we shall see, we do not agree with it entirely.
15
The Supreme Court has indicated that, under some
circumstances, the imposition of criminal liability without mens
rea violates due process. See, e.g., Lambert v. California, 78
S.Ct. 240, 242 (1957)(Los Angeles ordinance requiring felons to
register their presence in the city "violates due process where
it is applied to a person who has no actual knowledge of his duty
to register"). See also United States v. Wulff, 758 F.2d 1121,
1125 (6th Cir. 1985)(felony provisions of the Migratory Bird
Treaty Act, which prohibit the sale of migratory birds, violate
due process because of "the absence of a requirement that the
government prove some degree of scienter"); but see United States
v. Engler, 806 F.2d 425, 432-34 (3d Cir. 1986), cert. denied, 107
S.Ct. 1900 (1987)(declining to follow Wulff). In the wake of
Wulff, the Congress amended the Act to require violations of its
felony provisions to be committed "knowingly." See 16 U.S.C. §
707(b). The misdemeanor provisions of the Migratory Bird Treaty
Act are discussed infra in connection with United States v.
Delahoussaye, 573 F.2d 910 (5th Cir. 1978).
12

Accordingly, to give due respect both to the will of the Congress
and the mandate of the Constitution, we construe the acts of
Congress, whenever possible, so as to avoid raising serious
constitutional questions. See, e.g., Public Citizen v. United
States Dep't of Justice, 109 S.Ct. 2558, 2572-73 (1989).
Our effort to discern Congress' intent must begin, of course,
with the statute's language. By its explicit terms, see supra note
2, the statute makes no mention of mens rea. But before going any
further, we reject a textual argument made by the government. That
section 1472(l)(1) contains no mens rea requirement, the government
maintains, must be inferred from the fact that the very next
subsection does so explicitly.16 Variations of this argument have
been made before. Cf. Margraf, 483 F.2d at 710. To be sure, the
fact that section 1472(l)(2) speaks of willful or reckless
violations of section 1472(l)(1) is convincing evidence that one
need not act willfully or recklessly to violate section 1472(l)(1).
One cannot infer from section 1472(l)(2), however, that section
1472(l)(1) contains no mens rea requirement whatsoever. There is
a range of culpability between recklessness or willfulness, on the
one hand, and total blamelessness, on the other, the most familiar
of which is ordinary negligence. Therefore, the absence of
knowledge is not the necessary converse of willfulness. So too, in
16
49 U.S.C. App. § 1472(l)(2) provides:
"Whoever willfully and without regard for the safety of
human life, or with reckless disregard for the safety
of human life, shall commit an act prohibited by
paragraph (1) of this subsection, shall be fined not
more than $25,000 or imprisoned not more than five
years, or both."
13

some contexts, it takes more than knowledge for a violation to be
willful. See, e.g., Cheek v. United States, 111 S.Ct. 604, 609-12
(1991)(conviction for willful failure to file a federal income tax
return and willful evasion of income taxes requires the voluntary,
intentional violation of a known legal duty).
Thus, we are left with a statute which is, as we see it,
silent on the question of mens rea. Yet, "certainly far more than
the simple omission of the appropriate phrase from the statutory
definition is necessary to justify dispensing with an intent
requirement." United States v. United States Gypsum Co., 98 S.Ct.
2864, 2874 (1978). The requirement of mens rea as predicate to
criminal liability is a fundamental precept of the Anglo-American
common law. As Justice Jackson eloquently stated:
"The contention that an injury can amount to a crime only
when inflicted by intention is no provincial or transient
notion. It is as universal and persistent in mature
systems of law as belief in freedom of the human will and
a consequent ability and duty of the normal individual to
choose between good and evil." Morissette v. United
States, 72 S.Ct. 240, 243 (1952)(footnote omitted).
So deeply rooted is this tradition that it is presumed that the
Congress intended to incorporate some requirement of mens rea in
its definition of federal crimes, although that presumption is
rebuttable. Accordingly, "the failure of Congress explicitly and
unambiguously to indicate whether mens rea is required does not
signal a departure from this background assumption of our criminal
law." Liparota, 105 S.Ct. at 2088. See also 1 W. LaFave & A.
Scott, Substantive Criminal Law § 5.1, at 579 (1986)("the absence
of words in the statute requiring a certain mental state does not
warrant the assumption that the legislature intended to impose
14

strict liability"). In short, we will presume that Congress
intended to require some degree of mens rea as part of a federal
criminal offense absent evidence of a contrary congressional
intent.
This presumption is well established, too, in the case law of
this Circuit. A seminal case in this regard is United States v.
Delahoussaye, 573 F.2d 910 (5th Cir. 1978), in which defendants
were convicted of duck hunting in violation of federal regulations
promulgated pursuant to the Migratory Bird Treaty Act, 16 U.S.C. §
703 et seq. These regulations, 50 C.F.R. § 20.21(i), prohibit the
shooting of migratory game birds over a baited field. Reasoning
that hunters might innocently violate these regulations by hunting
over a field without knowledge that it was baited, we held that "a
minimum form of scienterSQthe 'should have known' formSQis a
necessary element of the offense." Id. at 912. "Any other
interpretation," we said, "would simply render criminal conviction
an unavoidable occasional consequence of duck hunting." Id. at
912-13.17
In United States v. Anderson, 885 F.2d 1248 (5th Cir. 1989)(en
banc), defendant was convicted of violating the National Firearms
17
The holding in Delahoussaye is, as its author, Judge Gee,
later conceded, "Unique among the Circuits." United States v.
Sylvester, 848 F.2d 520, 522 (5th Cir. 1988); see also Catlett v.
United States, 105 S.Ct. 2153, 2154 (1985)(White, J., dissenting
from denial of certiorari)(noting split in the circuits). Some
evidence has emerged that Delahoussaye is contrary to the intent
of a subsequent Congress. See S. Rep. No. 445, 99th Cong., 2d
Sess., reprinted in 1986 U.S.C.C.A.N. 6113, 6128 ("Nothing in
this amendment is intended to alter the 'strict liability'
standard for misdemeanor prosecutions under 16 U.S.C. § 707(a), a
standard which has been upheld in many Federal court
decisions.").
15

Act, 26 U.S.C. § 5681 et seq. Concluding that this Court's
"precedent permitting conviction of certain felonies without proof
of mens rea . . . is aberrational in our jurisprudence," id. at
1249, we reversed his conviction on the ground that the government
had failed to prove that he knew that the guns were automatic
weapons (and hence prohibited by the Act). We said at the time:
"We think it far too severe for our community to bearSQ
and plainly not intended by CongressSQto subject to ten
years' imprisonment one who possesses what appears to be,
and what he innocently and reasonably believes to be, a
wholly ordinary and legal pistol merely because it has
been, unknown to him, modified to be fully automatic."
Anderson, 885 F.2d at 1254 (footnote omitted).
In United States v. Wallington, 889 F.2d 573 (5th Cir. 1989),
defendant was convicted of divulging information that he had
obtained within the scope of his official duties as a United States
Customs agent in violation of 18 U.S.C. § 1905. We rejected his
arguments that the statute was overbroad and vague by construing it
narrowly to apply only to information that the employee knows to be
confidential. "We do not believe that Congress intended to create
strict criminal liability and impose prison sentences of up to one
year for innocent disclosures of information." Id. at 578.
In United States v. Nguyen, 916 F.2d 1016 (5th Cir. 1990),
defendant was convicted of possessing and importing a threatened
species of sea turtle (caretta caretta) in violation of the
Endangered Species Act, 16 U.S.C. § 1531 et seq. We affirmed and
held that the Act contained no specific intent requirement: "it is
sufficient that Nguyen knew that he was in possession of a turtle.
The government was not required to prove that Nguyen knew that this
turtle is a threatened species or that it is illegal to transport
16

or import it." Id. at 1018. We distinguished Anderson, and
refrained from reading into the Act a more demanding mens rea
requirement, because Congress had made its intent clear: "The
[House] committee explicitly stated that it did 'not intend to make
knowledge of the law an element of either civil penalty or criminal
violations of the Act.'" Id. at 1019 (quoting the legislative
history).
Here, the text of section 1472(l)(1) provides no indication
that the Congress intended to depart from the default rule of
requiring some mens rea. Nor is there anything in the legislative
history of the Federal Aviation Act that would lead us to believe
that the Congress intended section 1472(l)(1) to be a wholly strict
liability offense.18 At the same time, we think that a serious due
process problem would be raised by application of this statute,
which carries fairly substantial penalties, to someone who did not
know and had no reason to know that he was carrying a weapon.19 Cf.
18
The legislative history of section 1472(l)(1) does not
indicate that Congress intended to require mens rea; nor does it
explicitly disclaim any such intent. See H.R. Rep. 958, 87th
Cong., 1st Sess., reprinted in 1961 U.S.C.C.A.N. 2563, 2574-75.
The history of section 1472(l)(2),SQthe Act's felony provisions,
discussed supraSQwhich was added as a part of the 1974 amendments
to the Act, is similarly unenlightening with respect to section
1472(l)(1). See Conf. Rep. No. 1194, 93d Cong., 2d Sess.,
reprinted in 1974 U.S.C.C.A.N. 3996, 4010-11.
Although we are generally reluctant to place great weight
upon legislative history, we think it appropriate to consult such
materials where, as here, a statutory element is not merely
ambiguous, but completely absent. Moreover, our prior cases in
this area have looked to legislative history. Compare Nguyen,
916 F.2d at 1019 (intent to impose strict liability "explicit[ ]"
in legislative history) with Wallington, 889 F.2d at 578
(legislative history fails to provide "any hint" that strict
liability was intended).
19
It is not unknown for terrorists to plant weapons in the
17

United States v. Lee, 383 F.Supp. 1033, 1035 (E.D.Tenn.1974).
Avoiding such a construction of section 1472(l)(1), moreover, would
comport with the so-called "rule of lenity"SQthe principle that
ambiguous criminal statutes should be construed in favor of the
defendant. Therefore, in light of the principles laid down by the
Supreme Court and our case law, we cannot conclude that the
Congress intended section 1472(l)(1) to reach persons acting
without any mens rea whatsoever.20
C.
Having declined to construe section 1472(l)(1) as a strict
liability crime, it remains to be determined what level of mental
culpability will support a conviction under it. We believe that
luggage of passengers who are less likely to arouse the suspicion
of airport security than they are.
20
In affirming the magistrate's decision, the district court
expressly "follow[ed] the reasoning" of the Eighth Circuit in
Flum. The Flum court, in turn, had applied the test announced by
then-Judge Blackmun in Holdridge v. United States, 282 F.2d 302
(8th Cir. 1960):
"From these cases emerges the proposition that where a
federal criminal statute omits mention of intent and
where it seems to involve what is basically a matter of
policy, where the standard imposed is, under the
circumstances, reasonable and adherence thereto
properly expected of a person, where the penalty is
relatively small, where conviction does not gravely
besmirch, where the statutory crime is not one taken
over from the common law, and where congressional
purpose is supporting, the statute can be construed as
one not requiring criminal intent." Id. at 310.
Although the Holdridge test has received the approval of at least
some members of the Supreme Court, see United States v. Freed, 91
S.Ct. 1112, 1120 n.4 (1971)(Brennan, J., concurring in the
judgment), and may well be an accurate statement of law, we have
opted instead to follow the mode of analysis of our cases in this
area. Nevertheless, we do not believe that the Holdridge test
would yield a result contrary to our decision.
18

the minimum level of scienterSQthe "should have known" standardSQis
appropriate and consistent with our case law.
The touchstone in our analysis is the severity of the
punishment authorized by the statute. See 1 LaFave & Scott, supra,
§ 3.8, at 343 ("Other things being equal, the greater the possible
punishment, the more likely some fault is required; and,
conversely, the lighter the possible punishment, the more likely
the legislature meant to impose liability without fault.")(footnote
omitted). A violation of section 1472(l)(1) is punishable by a
fine of up to $10,000 and a prison sentence of up to one year.
Therefore, a violation of section 1472(l)(1), although a non-petty
offense,21 is still a misdemeanor.22
We believe that a "should have known" standard is consistent
with our prior cases in this area.23 This case is most akin to
21
Petty offenses are statutorily defined as those punishable
by not more than six months in prison or a $5,000 fine. See 18
U.S.C. § 19. The petty/non-petty distinction is an important one
in our law because a defendant charged with a non-petty offense
has a right to a jury trial, whereas virtually no petty offenses
require jury trials. See Baldwin v. New York, 90 S.Ct. 1886,
1988-90 (1970); Duncan v. Louisiana, 88 S.Ct. 1444, 1453 (1968);
Landry v. Hoepfner, 840 F.2d 1201, 1205-10 (5th Cir. 1988)(en
banc), cert. denied, 109 S.Ct. 1540 (1989). There is some
support for the notion that those crimes for which a jury trial
is required are also the ones for which some degree of mens rea
should be required. See Hopkins, Mens Rea and the Right to Trial
by Jury, 76 Cal. L. Rev. 391, 397, 415-16 (1988)(arguing that the
right to a jury trial includes the right to have a jury pass upon
one's "moral blameworthiness" or mens rea).
22
An offense that carries a punishment of one year or less,
but more than six months, is statutorily defined as a Class A
misdemeanor. See 18 U.S.C. § 3559(a)(6). Any offense for which
a sentence of more than one year may be imposed is a felony.
23
We also note that in United States v. Margraf, supra, where
the issue was whether section 1472(l) requires a defendant to
have knowledge of a weapon's dangerousness, the Third Circuit
19

Delahoussaye, in which we also applied a "should have known"
standard. In Delahoussaye, as here, the crime at issue was a
misdemeanor, although one punishable by a maximum of only six
months in prison rather than one year. We decline today to go as
far as Anderson, in which we required actual knowledge, because the
crime at issue in that case was a felony that carried a possible
sentence of ten years imprisonment. See Nguyen, 916 F.2d at 1016
(distinguishing Anderson on the ground that it involved a felony).24
The outcome of Wallington may appear somewhat anomalous when
compared to Delahoussaye, Anderson, and our decision today. In
Wallington, the statute at issue, 18 U.S.C. § 1905, prohibited
government agents from disclosing confidential information acquired
during the performance of their duties. As here, the crime was a
upheld the conviction on the ground that the defendant "should
have been aware that [the knife] could be used as a deadly weapon
and that others could have classified it as a deadly weapon."
483 F.2d at 712 (emphasis added); id. at 719 (Seitz, C.J.,
dissenting)("the majority . . . upholds [defendant's] conviction
on the ground he should have been aware other people could have
considered or used his pocketknife as a deadly or dangerous
weapon if carried aboard a plane.")(emphasis in original).
24
In Nguyen, where we eschewed a requirement of specific
intent, the crime was punishable by six months in prison and a
$25,000 fine, a lesser sentence (but a greater fine) than is
available for violations of section 1472(l)(1). However, as
previously noted, in Nguyen the Congress had clearly expressed
its intent with respect to both mens rea and penalties.
Moreover, the Nguyen court appeared to view the defendant's
contention as being that knowledge of the law (that caretta
caretta turtles were listed as endangered or it was illegal to
transport them) was required. Id. at 1018, 1019. Nothing
relating to knowledge of the law or of the legal significance of
the weapon in the purse is involved here. Garrett fully knew
what the gun was, but claims she simply did not know it was in
her purse.
20

Class A misdemeanor with a one year maximum sentence.
Nevertheless, we construed section 1905 as requiring knowledge on
the part of its violators that the information was confidential.
What distinguishes Wallington, we think, is that it was a First
Amendment case. The defendant in Wallington had argued that the
statute was impermissibly overbroad in that it would punish even
innocent disclosures of information. We gave the statute a narrow
construction to avoid a serious First Amendment question:
"At least in a substantial number of cases, the
requirement that government employees refrain from
knowingly disclosing confidential information contained
in government files or collected in the scope of their
official duties will strike a permissible balance between
the First Amendment and the practical necessities of
public service." Wallington, 889 F.2d at 579 (emphasis
added).
It seems apparent that the Wallington court believed a high level
of mens rea was required for section 1905 in order to avoid serious
questions of the law's validity under the First Amendment. The
government may certainly penalize the deliberate disclosure of
confidential information. See, e.g., Haig v. Agee, 101 S.Ct. 2766
(1981)(upholding revocation of passport of former CIA employee who
had pledged to reveal the identities of undercover CIA agents).
Nevertheless, public employees do not surrender their free speech
rights completely. See, e.g., Rankin v. McPherson, 107 S.Ct. 2891
(1987). Thus, Wallington was concerned that a serious First
Amendment problem might attend any attempt to attach criminal
sanctions to a public employee who in good faith, albeit
negligently, believed the information disclosed was not
confidential. In Pickering v. Board of Education, 88 S.Ct. 1731
21

(1968), the Supreme Court held that a public school teacher may not
be dismissed for sending to a local newspaper a letter critical of
the board of education "absent proof of false statements knowingly
or recklessly made by him." Id. at 1738 (emphasis added); id. at
1742 (White, J., dissenting in part)("The Court holds that truthful
statements by a school teacher critical of the school board are
within the ambit of the First Amendment. So also are false
statements innocently or negligently made.")(emphasis added). See
also Florida Star v. B.J.F., 109 S.Ct. 2603, 2612 (1989) (reversing
award of damages for publishing name of rape victim under state law
imposing liability without regard to scienter or degree of fault);
see also id. at 2616 (White, J., dissenting); United States v.
Hicks, 980 F.2d 963, 973-74 & nn. 15-16 (5th Cir. 1992) (crime of
intimidating flight crew members, by use of vulgar and profane
language, requires knowing violation). In short, Wallington
demanded a high level of mens rea in the context of a statute that
raised serious First Amendment concerns. That is not the case
here.
We conclude that one violates section 1472(l)(1) if, but only
if, she either knew or should have known that the concealed weapon
in question was on or about her person or property while aboard or
attempting to board the aircraft.
D.
There is ample evidence in the record to support the
magistrate's conclusion that Garrett should have known that she was
carrying the gun when she attempted to board by going through
22

security. Garrett testified that she had traveled by air many
times and that she was aware that it was illegal to try to bring a
gun through airport security. And if she needed any reminder,
there were two large signs in the area of the security checkpoint.
The first sign, printed with large white letters upon a bright red
background, stated: "CARRY NO WEAPONS OR EXPLOSIVES BEYOND THIS
POINT: VIOLATORS ARE SUBJECT TO PROSECUTION UNDER FEDERAL CRIMINAL
STATUTES REQUIRING PENALTIES AND/OR IMPRISONMENT." The sign also
had an image of a pistol and a knife over which was superimposed a
circle and a diagonal line. The other sign displayed a list of
"Federal Safety and Security Inspection Rules" and informed
passengers, among other things, that, "Federal regulations prohibit
persons from having a FIREARM, explosive or incendiary device on or
about their person or accessible property when entering or in an
airport sterile area or while aboard an aircraft."
It is also relevant that the gun was in Garrett's hand bag.
Garrett testified that she owns and uses seven or eight purses and
that she did not remember when she put the gun in this particular
bag, which was described at trial as a large leather satchel. She
stated that she did not put the gun in the bag on the day of the
flight, nor did she think that day to check the bag for it. On the
other hand, she testified that she knew that she previously had
carried the gun in that particular bag. Garrett also testified
that she had put her wallet, checkbook, and makeup in the bag on
the day in question. It is inferable that she would have used the
bag during the day. We think it patently reasonable to require
individuals in such circumstances to be aware of the presence of a
23

firearm in their purse or equivalent bag, or, indeed, to infer that
they actually have such knowledge.
In short, there is sufficient evidence in the record to
support the magistrate's finding that Garrett should have known
that she was carrying a firearm.25
E.
Garrett also makes the independent argument that the
magistrate erred by failing to dismiss the bill of information
because it did not allege that she carried the weapon "knowingly
and intentionally."26 Garrett raised this argument in a pre-trial
25
We note one additional piece of evidence. The security
guard who screened Garrett's bag testified that immediately after
the bag was stopped on the conveyor belt, but before the guard
had said anything, Garrett threw up her hands and announced that
she was a state trooper's wife. Garrett similarly testified that
"I don't know if it makes any difference; I used to be married to
a state policeman." The guard also testified that, unlike most
passengers discovered with guns, Garrett did not appear upset or
nervous. The magistrate thought that Garrett's statement
"indicat[ed] at least initially some justification that she could
carry the gun." It is possible to read the magistrate as
suggesting that Garrett may have known what she was doing but
thought it was permissible. However, in the same transcribed
paragraph, the magistrate also stated that "I need not decide
whether [Garrett] had actual knowledge or not." In light of the
latter statement, and in the absence of any express finding by
the trial court on the credibility of Garrett's claim to have
forgotten the gun, we view the magistrate as having found only
that Garrett should have known the gun was there in her purse.
26
The bill of information alleged:
"On or about December 18, 1990, in the Eastern District
of Louisiana, the defendant, REGINA KAY GARRETT, did,
while attempting to board an aircraft intended for
operation in air transportation, have about her person
and property a concealed deadly and dangerous weapon,
to wit: a Browning semi-automatic .25 caliber handgun,
serial number 210582, which would have been accessible
to her in flight; all in violation of Title 49, United
States Code, Section 1472 (l)(1)."
24

motion to dismiss the information because of its failure to allege
"that the defendant knowingly and intentionally committed the
violation." The magistrate denied the motion nine days before
trial, stating in his oral reasons that a "should have known"
rather than an actual knowledge standard was applicable. Garrett
renewed her motion just before trial began, again asserting that
the information was defective for "not alleging a knowing and
intentional commission of this crime." The magistrate again denied
the motion, repeating his earlier ruling that actual knowledge was
not required and that a "should have known" standard was
applicable. In her appeal to the district court, Garrett again
asserted that the information was deficient because it did not
allege that she acted "knowingly and intentionally." Garrett cites
United States v. Pou, 484 F.Supp. 972 (S.D.Fla.1979), in which the
court concluded that actual knowledge is an element of a section
1472(l) violation and dismissed a bill of information that failed
to allege such (see also, supra, note 14).
For the reasons previously stated, we agree with the
magistrate that a "should have known," rather than an actual
knowledge, standard is applicable. This answers the only argument
as to the sufficiency of the information that Garrett has ever
expressly raised, here or below. In these circumstances, we
decline to reverse the conviction on the basis that the information
did not expressly allege that Garrett should have known the gun was
in her purse, although clearly the better practice would have been
to include such an allegation.
The function of a bill of information is to fairly inform the
25

accused of the charges against him and to allow him to plead an
acquittal or conviction in bar of future prosecution for the same
offense. An indictment or information is sufficient if it serves
these purposes. See Hamling v. United States, 94 S.Ct. 2887, 2907
(1974); Russell v. United States, 82 S.Ct. 1038, 1046-47 (1962).
Here, there is no suggestion that the information failed to serve
these functions.
We also note that the language used in the information tracked
the language of the statute, and usually this suffices.27 See
United States v. Colon-Padilla, 770 F.2d 1328, 1334 (5th Cir.
1985). However, it is also true, as a general matter, that "[i]f
the statute omits an essential element, such as mens rea, then that
element must be added to the pleading." 2 W. LaFave & J. Israel,
Criminal Procedure § 19.2, at 452 (1984). This rule may have less
stringent application where the required mental element is not only
not expressly contained in the statute but is also something less
than actual knowledge or specific intent. For example, in Tallman
v. United States, 465 F.2d 282 (7th Cir. 1972), the court concluded
that for purposes of 18 U.S.C. § 1464 the required state of mind
was "knew or reasonably should have known," id. at 288, and that
"in view of the content of the scienter requirement implied in the
statute . . . the indictment need not allege that element." Id. at
286.
27
This fact distinguishes United States v. Pupo, 841 F.2d
1235, 1239 (4th Cir.)(en banc), cert. denied sub nom. Govantes v.
United States, 109 S.Ct. 113 (1988)("It is well established that
an indictment is defective if it fails to allege elements of
scienter that are expressly contained in the statute that
describes the offense.")(emphasis added).
26

In any event, any error in this case was harmless because the
magistrate applied the mens rea standard that we approve today.
See United States v. Fusaro, 708 F.2d 17, 23 (1st Cir.), cert.
denied, 104 S.Ct. 524 (1983) (where indictment failed to charge
intent, but jury was instructed that intent is necessary, any error
was harmless). Fusaro's reasoning in this respect may be open to
question in a felony indictment case, where it is important that
the grand jury find probable cause as to all elements of the
offense. Where the offense is prosecuted by information, however,
the charging instrument may be amended.28 Nine days before trial
the magistrate rejected Garrett's challenge to the information for
not alleging that she acted "knowingly and intentionally," ruling
that such a state of mind was not required for conviction, and that
a "should have known" standard would instead be applied. Garrett
did not thereafter even alternatively attack the information for
not alleging "should have known," but merely repeated, just before
trial, her earlier challenge, which the magistrate again rejected
on the basis that the correct standard was "should have known."
Garrett, and the prosecution, clearly knew in advance the mental
28
See United States v. Adams, 778 F.2d 1117, 1122, 1125 (5th
Cir. 1985) (indictment, as act of grand jury, may not be
amended); Advisory Committee Notes to Rule 7(e), Fed. R. Crim. P.
("unlike an indictment, an information may be amended"); 2 W.
LaFave & J. Israel, Criminal Procedure § 19.2(g) at 462 (West
1984) (permissible to amend information by "an amendment that
perfects a defective information by adding an essential element
of the crime," but not so as to "allege a new offense"); Wright,
Federal Practice and Procedure, Criminal 2d, § 128 (". . . the
restrictive rules about amendment of an indictment have no
application to an information. Instead the information may be
amended in either form of [sic] substance"; id. at 430, footnote
omitted).
27

element the case would be tried on, and Garrett objected to that
only because she contended a more culpable state of mind was
required, not because the information did not allege the "should
have known" standard. In these circumstances, the magistrate can
be regarded as in substance having made, without objection of
either party, any amendment required to incorporate "should have
known" into the information.
Under all the circumstances, we conclude there is no plain
error and that Garrett's substantial rights were not violated by
the form of the information. See Fed. R. Crim. P. 52(a); Cf.
Delahoussaye, 573 F.2d at 913.
III. Application of the Sentencing Guidelines
Garrett's final argument is that in calculating her offense
level the trial court failed to give her a downward adjustment
pursuant to U.S.S.G. § 2k1.5(b)(3). That section provides: "If the
defendant's possession of the weapon or material would have been
lawful but for 49 U.S.C. § 1472(l) and he acted with mere
negligence, decrease by 3 levels." Whatever the merits of her
contention (and they are suspect), the magistrate stated in clear
terms that he would have imposed the same sentence even if he
thought that Garrett were entitled to the reduction. Because it
would have been consistent with the guidelines and well within the
magistrate's purview to do so, any error in applying section
2k1.5(b)(3) therefore was harmless. See Williams v. United States,
112 S.Ct. 1112, 1120-21 (1992).
28

Conclusion
For the reasons stated herein, Garrett's conviction and
sentence are
AFFIRMED.
29