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SUPREME COURT OF THE UNITED STATES
_________________
Nos. 20–1410 and 21–5261
_________________
XIULU RUAN, PETITIONER
20–1410
v.
UNITED STATES
on writ of certiorari to the united states
court of appeals for the eleventh circuit
SHAKEEL KAHN, PETITIONER
21–5261
v.
UNITED STATES
on writ of certiorari to the united states
court of appeals for the tenth circuit
[June 27, 2022]
Justice Breyer delivered the opinion of the
Court.
A provision of the Controlled Substances Act,
codified at 21 U. S. C. §841, makes it a federal crime,
“
[e]xcept as authorized[,] . . . for any person
knowingly or intentionally . . . to manufacture,
distribute, or dispense . . . a controlled substance,”
such as opioids. 84Stat. 1260, 21 U. S. C. §841(a)
(emphasis added). Registered doctors may prescribe these substances
to their patients. But, as provided by regulation, a prescription
is only authorized when a doctor issues it “for a legitimate
medical purpose . . . acting in the usual course of his
professional practice.” 21 CFR §1306.04(a) (2021).
In each of these two consolidated cases, a
doctor was convicted under §841 for dispensing controlled
substances not “as authorized.” The question before us concerns the
state of mind that the Government must prove to convict these
doctors of violating the statute. We hold that the statute’s
“knowingly or intentionally”
mens rea applies to
authorization. After a defendant produces evidence that he or she
was authorized to dispense controlled substances, the Government
must prove beyond a reasonable doubt that the defendant knew that
he or she was acting in an unauthorized manner, or intended to do
so.
I
The question we face concerns §841’s exception
from the general prohibition on dispensing controlled substances
contained in the phrase “[e]xcept as authorized.” In particular,
the question concerns the defendant’s state of mind. To prove that
a doctor’s dispensation of drugs via prescription falls within the
statute’s prohibition and outside the authorization exception, is
it sufficient for the Government to prove that a prescription was
in fact not authorized, or must the Government prove that
the doctor
knew or
intended that the prescription was
unauthorized?
Petitioners Xiulu Ruan and Shakeel Kahn are both
doctors who actively practiced medicine. They both possessed
licenses permitting them to prescribe controlled substances. The
Government separately charged them with unlawfully dispensing and
distributing drugs in violation of §841. Each proceeded to a jury
trial, and each was convicted of the charges.
At their separate trials, Ruan and Kahn argued
that their dispensation of drugs was lawful because the drugs were
dispensed pursuant to valid prescriptions. As noted above, a
regulation provides that, “to be effective,” a prescription “must
be issued for a legitimate medical purpose by an individual
practitioner acting in the usual course of his professional
practice.” 21 CFR §1306.04(a). We assume, as did the courts below
and the parties here, that a prescription is “authorized” and
therefore lawful if it satisfies this standard. At Ruan’s and
Kahn’s trials, the Government argued that the doctors’
prescriptions failed to comply with this standard. The doctors
argued that their prescriptions did comply, and that, even if not,
the doctors did not knowingly deviate or intentionally deviate from
the standard.
Ruan, for example, asked for a jury instruction
that would have required the Government to prove that he
subjectively knew that his prescriptions fell outside the
scope of his prescribing authority. The District Court, however,
rejected this request. The court instead set forth a more objective
standard, instructing the jury that a doctor acts lawfully when he
prescribes “in good faith as part of his medical treatment of a
patient in accordance with the standard of medical practice
generally recognized and accepted in the United States.” App. to
Pet. for Cert. in No. 20–410, p. 139a. The court further instructed
the jury that a doctor violates §841 when “the doctor’s actions
were either not for a legitimate medical purpose or were outside
the usual course of professional medical practice.”
Ibid.
The jury convicted Ruan, and the trial court sentenced him to over
20 years in prison and ordered him to pay millions of dollars in
restitution and forfeiture.
The Eleventh Circuit affirmed Ruan’s
convictions. See 966 F.3d 1101, 1120, 1166–1167 (2020). The appeals
court held that a doctor’s “subjectiv[e] belie[f] that he is
meeting a patient’s medical needs by prescribing a controlled
substance” is not a “complete defense” to a §841 prosecution.
Id., at 1167. Rather, the court said, “ ‘[w]hether a
defendant acts in the usual course of his professional practice
must be evaluated based on an
objective standard, not a
subjective standard.’ ”
Id., at 1166 (quoting
United
States v.
Joseph, 709 F.3d 1082, 1097 (CA11 2013);
emphasis added; alteration in original).
Kahn’s trial contained similar disagreements
over the proper
mens rea instructions. Ultimately, the
District Court instructed the jury that it should not convict if it
found that Kahn acted in “good faith,” defined as “an attempt to
act in accordance with what a reasonable physician should believe
to be proper medical practice.” App. 486. The court added that to
find “good faith,” the jury must conclude that Kahn “acted in an
honest effort to prescribe for patients’ medical conditions in
accordance with generally recognized and accepted standards of
practice.”
Ibid. The court also told the jury that “good
faith” was a “complete defense” because it “would be inconsistent
with knowingly and intentionally distributing and/or dispensing
controlled substances outside the usual course of professional
practice and without a legitimate medical purpose.”
Ibid.
The jury convicted Kahn of the §841 charges, and he was sentenced
to 25 years in prison.
The Tenth Circuit affirmed Kahn’s convictions.
See 989 F.3d 806, 812, 824–826 (2021). In doing so, the court held
that to convict under §841, the Government must prove that a doctor
“either: (1) subjectively knew a prescription was issued not for a
legitimate medical purpose; or (2) issued a prescription that was
objectively not in the usual course of professional practice.”
Id., at 825.
Both Ruan and Kahn filed petitions for
certiorari. We granted the petitions and consolidated the cases to
consider what
mens rea applies to §841’s authorization
exception.
II
As we have said, §841 makes it unlawful,
“[e]xcept as authorized[,] . . . for any person knowingly
or intentionally . . . to manufacture, distribute, or
dispense . . . a controlled substance.” We now hold that
§841’s “knowingly or intentionally”
mens rea applies to the
“except as authorized” clause. This means that once a defendant
meets the burden of producing evidence that his or her conduct was
“authorized,” the Government must prove beyond a reasonable doubt
that the defendant knowingly or intentionally acted in an
unauthorized manner. Our conclusion rests upon several
considerations.
A
First, as a general matter, our criminal law
seeks to punish the “ ‘vicious will.’ ”
Morissette
v.
United States,
342 U.S.
246, 251 (1952); see also
id., at 250, n. 4
(quoting F. Sayre, Cases on Criminal Law, p. xxxvi (R. Pound ed.
1927)). With few exceptions, “ ‘wrongdoing must be conscious
to be criminal.’ ”
Elonis v.
United States, 575
U.S. 723, 734 (2015) (quoting
Morissette, 342 U. S., at
252). Indeed, we have said that consciousness of wrongdoing is a
principle “as universal and persistent in mature systems of
[criminal] 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.”
Id., at 250.
Consequently, when we interpret criminal
statutes, we normally “start from a longstanding presumption,
traceable to the common law, that Congress intends to require a
defendant to possess a culpable mental state.”
Rehaif v.
United States, 588 U. S. ___, ___ (2019) (slip op., at
3). We have referred to this culpable mental state as “scienter,”
which means the degree of knowledge necessary to make a person
criminally responsible for his or her acts. See
ibid.;
Black’s Law Dictionary 1613 (11th ed. 2019);
Morissette, 342
U. S., at 250–252.
Applying the presumption of scienter, we have
read into criminal statutes that are “
silent on the required
mental state”—meaning statutes that contain no
mens rea
provision whatsoever—“ ‘that
mens rea which is
necessary to separate wrongful conduct from “otherwise innocent
conduct.” ’ ”
Elonis, 575 U. S., at 736
(quoting
Carter v.
United States,
530 U.S.
255, 269 (2000); emphasis added). Unsurprisingly, given the
meaning of scienter, the
mens rea we have read into such
statutes is often that of knowledge or intent. See,
e.g.,
Staples v.
United States,
511
U.S. 600, 619 (1994);
United States v.
United States
Gypsum Co.,
438 U.S.
422, 444–446 (1978).
And when a statute is not silent as to
mens
rea but instead “
includes a general scienter provision,”
“the presumption applies with equal or greater force” to the scope
of that provision.
Rehaif, 588 U. S., at ___ (slip op.,
at 3) (emphasis added). We have accordingly held that a word such
as “knowingly” modifies not only the words directly following it,
but also those other statutory terms that “separate wrongful from
innocent acts.”
Id., at ___ (slip op., at 6); see,
e.g.,
ibid.;
United States v.
X-Citement Video, Inc.,
513 U.S.
64, 72 (1994);
Liparota v.
United States,
471 U.S.
419, 426 (1985).
Section 841 contains a general scienter
provision—“knowingly or intentionally.” And in §841 prosecutions, a
lack of authorization is often what separates wrongfulness from
innocence. Defendants who produce evidence that they are
“authorized” to dispense controlled substances are often doctors
dispensing drugs via prescription. We normally would not view such
dispensations as inherently illegitimate; we expect, and indeed
usually want, doctors to prescribe the medications that their
patients need. In §841 prosecutions, then, it is the fact that the
doctor issued an
unauthorized prescription that renders his
or her conduct wrongful, not the fact of the dispensation itself.
In other words, authorization plays a “crucial” role in separating
innocent conduct—and, in the case of doctors, socially beneficial
conduct—from wrongful conduct.
X-Citement Video, 513
U. S., at 73. Applying §841’s “knowingly or intentionally”
mens rea to the authorization clause thus “helps advance the
purpose of scienter, for it helps to separate wrongful from
innocent acts.”
Rehaif, 588 U. S., at ___ (slip op., at
6); see also
X-Citement Video, 513 U. S., at 72–73.
In addition, the regulatory language defining an
authorized prescription is, we have said, “ambiguous,” written in
“generalit[ies], susceptible to more precise definition and open to
varying constructions.”
Gonzales v.
Oregon,
546 U.S.
243, 258 (2006); see
id., at 257 (regulation “gives
little or no instruction on” major questions); see also 21 CFR
§1306.04(a) (regulation defining “effective” prescription as one
“issued for a legitimate medical purpose by an individual
practitioner acting in the usual course of his professional
practice”). The conduct prohibited by such language (issuing
invalid prescriptions) is thus “often difficult to distinguish from
the gray zone of socially acceptable . . . conduct”
(issuing valid prescriptions).
United States Gypsum, 438
U. S., at 441. A strong scienter requirement helps to diminish
the risk of “overdeterrence,”
i.e., punishing acceptable and
beneficial conduct that lies close to, but on the permissible side
of, the criminal line.
Ibid.
The statutory provisions at issue here are also
not the kind that we have held fall outside the scope of ordinary
scienter requirements. Section 841 does not define a regulatory or
public welfare offense that carries only minor penalties. Cf.
Rehaif, 588 U. S., at ___ (slip op., at 6);
Staples, 511 U. S., at 606. Rather, §841 imposes severe
penalties upon those who violate it, including life imprisonment
and fines up to $1 million. See §841(b)(1)(C); see generally
§841(b). Such severe penalties counsel in favor of a strong
scienter requirement. See
Staples, 511 U. S., at
618–619 (noting that “a severe penalty is a further factor tending
to suggest that . . . the usual presumption that a defendant must
know the facts that make his conduct illegal should apply”);
United States Gypsum, 438 U. S., at 442,
n. 18.
Nor is the “except as authorized” clause a
jurisdictional provision, to which the presumption of scienter
would not apply. Cf.
Rehaif, 588 U. S., at ___ (slip
op., at 4);
United States v.
Yermian,
468 U.S.
63, 68–69 (1984). To the contrary, and as we have explained, a
lack of authorization is often the critical thing distinguishing
wrongful from proper conduct.
B
Analogous precedent reinforces our conclusion.
In
Liparota, we interpreted a statute penalizing anyone who
“ ‘knowingly uses [food stamps] in any manner not authorized
by’ ” statute. 471 U. S., at 420. We held that
“knowingly” modified both the “use” of food stamps element and the
element that the use be “not authorized.”
Id., at 423, 433.
We applied “knowingly” to the authorization language even though
Congress had not “explicitly and unambiguously” indicated that it
should so apply.
Id., at 426. But if knowingly did not
modify the fact of nonauthorization, we explained, the statute
“would . . . criminalize a broad range of apparently
innocent conduct.”
Ibid.
Similarly, in
X-Citement Video, we
interpreted a statute penalizing anyone who “ ‘knowingly
transports’ ” or “ ‘knowingly receives’ ” videos
“ ‘involv[ing] the use of a minor engaging in sexually
explicit conduct.’ ” 513 U. S., at 68. We held that
“knowingly” applied not only to the element of transporting or
receiving videos but also to the elemental fact that the videos
involve “the use of a minor.”
Id., at 66. We recognized that
this was not “the most grammatical reading of the statute.”
Id., at 70. But, we explained, “the age of the performers is
the crucial element separating legal innocence from wrongful
conduct,” for possessing sexually explicit videos involving
nonminors is protected First Amendment activity.
Id.,
at 72–73.
Finally, in
Rehaif, we interpreted a
statutory scheme in which one statutory subsection provided
penalties for anyone who “knowingly violates” a separate
subsection. 588 U. S., at ___–___ (slip op., at 3–4). This
latter subsection made it “unlawful” for people with certain
statuses (
i.e., being a felon or being in the country
unlawfully) to possess a gun.
Ibid. We held that the first
subsection’s “knowingly” language applied to the status element in
the second subsection.
Id., at ___ (slip op., at 5). To
convict under the statute, then, the Government had to prove that a
defendant knew he had one of the listed statuses.
Ibid.
“Without knowledge of that status,” we reasoned, “the defendant may
well lack the intent needed to make his behavior wrongful,” because
“[a]ssuming compliance with ordinary licensing requirements, the
possession of a gun can be entirely innocent.”
Id., at ___
(slip op., at 6).
Like the statutes at issue in these cases, the
statute here contains a scienter provision. Section 841 states:
“Except as authorized by this subchapter, it shall be unlawful for
any person
knowingly or intentionally . . . to
manufacture, distribute, or dispense . . . a controlled
substance.” (Emphasis added.) Like those three cases, the question
here concerns the mental state that applies to a statutory clause
(“[e]xcept as authorized”) that does not immediately follow the
scienter provision. Like the three cases, the statutory clause in
question plays a critical role in separating a defendant’s wrongful
from innocent conduct. And, like the Court in those cases, we
conclude that the statute’s
mens rea applies to that
critical clause.
III
We are not convinced by the Government’s
arguments to the contrary. First, the Government correctly points
out, and the concurrence emphasizes, that the statutory language at
issue in the cases we have just described set forth
elements
of the offense. Here, the Government and the concurrence say, the
“except as authorized” clause does not set forth an element. See,
e.g., post, at 4–7 (Alito, J., concurring in
judgment).
The Government and the concurrence point to two
ways in which the “except as authorized” clause is unlike an
element, both of which rely on a different provision of the
Controlled Substances Act—§885. Section 885 says that the
Government need not “negative”—
i.e., refute—“any exemption
or exception . . . in any complaint, information,
indictment, or other pleading.” This means that, in a prosecution
under the Controlled Substances Act, the Government need not refer
to a lack of authorization (or any other exemption or exception) in
the criminal indictment. Cf.
United States v.
Resendiz-Ponce,
549 U.S.
102, 108 (2007) (criminal indictment must set forth all
elements of the charged crime). Section 885 also says that the
Government need not “negative any exemption or exception
. . . in any trial,” and that “the burden of going
forward with the evidence with respect to any such exemption or
exception shall be upon the person claiming its benefit,” not upon
the prosecution. Cf.
Patterson v.
New York,
432 U.S.
197, 210 (1977) (Government bears burden of proving all
elements of charged offense).
But even assuming that lack of authorization is
unlike an element for the two purposes that §885 sets forth, those
two purposes have little or nothing to do with scienter
requirements. The first has to do with the indictment. It simply
says that the Government need not set forth in an indictment a lack
of authorization, or otherwise allege that a defendant does not
fall within the many exceptions and exemptions that the Controlled
Substances Act contains. The Act excepts, for example, licensed
professionals such as dentists, veterinarians, scientific
investigators, and pharmacists from the prohibition on dispensing
controlled substances. See 21 U. S. C. §802(21). The Act
also excepts employees of drug manufacturers, common carriers, and
people with sick family members or pets from the prohibition on
possessing controlled substances. See §§802(27), 822(c). Section
885 merely absolves the Government of having to allege, in an
indictment, the inapplicability of every statutory exception in
each Controlled Substances Act prosecution.
Section 885’s second purpose refers only to “the
burden of going forward with the evidence,”
i.e., the burden
of
production. See Black’s Law Dictionary, at 244. It says
nothing regarding the distinct issue of the burden of
persuasion—
i.e., the burden of proving a lack of
authorization. Cf.
Director, Office of Workers’ Compensation
Programs v.
Greenwich Collieries,
512 U.S.
267, 274 (1994) (“our opinions consistently distinguis[h]
between burden of proof, which we defined as burden of persuasion,
and . . . the burden of production or the burden of going
forward with the evidence”); see also
Schaffer v.
Weast,
546 U.S.
49, 56 (2005). Section 885 can thus be understood as providing
a presumptive device, akin to others we have recognized in the
criminal context, which “merely shift[s] the burden of production
to the defendant, following the satisfaction of which the ultimate
burden of persuasion returns to the prosecution.”
County Court
of Ulster Cty. v.
Allen,
442 U.S.
140, 157–158, n. 16 (1979); see
Parker v.
Matthews,
567 U.S.
37, 42, n. 1 (2012) (
per curiam). Contrary to the
concurrence’s assertion, see
post, at 9–11, the differences
between these two burdens and the use of procedural mechanisms to
shift one burden but not the other are well established. See,
e.g., 29 Am. Jur. 2d Evidence §207, p. 246 (2019) (“due
process does not prohibit the use of a . . . procedural
device that shifts to a defendant the burden of producing some
evidence contesting a fact that may otherwise be inferred, provided
the prosecution retains the ultimate burden of proof ”); 1 W.
LaFave, Substantive Criminal Law §1.8(a), p. 102 (3d ed. 2018)
(similar). In a §841 prosecution, then, once the defendant
satisfies the initial burden of production by producing evidence of
authorization, the burden of proving a lack of authorization shifts
back to the Government. And, as with §885’s indictment-related
purpose, §885’s burden-related purpose simply relieves the
Government from having to disprove, at the outset of every
Controlled Substances Act prosecution, every exception in the
statutory scheme.
Section 885 thus does not provide a basis for
inferring that Congress intended to do away with, or weaken,
ordinary and longstanding scienter requirements. At the same time,
the language of §841 (which explicitly includes a “knowingly or
intentionally” provision); the crucial role authorization (or lack
thereof ) plays in distinguishing morally blameworthy conduct
from socially necessary conduct; the serious nature of the crime
and its penalties; and the vague, highly general language of the
regulation defining the bounds of prescribing authority all support
applying normal scienter principles to the “except as authorized”
clause. That statutory requirement, while differing from an element
in some respects, is sufficiently like an element in respect to the
matter at issue here as to warrant similar legal treatment.
And the Government does not deny that, once a
defendant claims that he or she falls within the authorization
exception and the burden shifts back to the Government, the
Government must prove a lack of authorization by satisfying the
ordinary criminal law burden of proof—beyond a reasonable doubt.
See Brief for United States 26; Tr. of Oral Arg. 50–51; see also
id., at 62–65. But see
post, at 10–11 (concurrence
suggesting, contrary to the position advanced by all parties to
these cases, that the Government need only prove lack of
authorization by a preponderance of the evidence). Once the
defendant meets his or her burden of production, then, the
Government must prove lack of authorization beyond a reasonable
doubt.
Resisting the “knowingly or intentionally”
standard, the Government instead offers a substitute
mens
rea standard. The Government says that rather than simply apply
the statute’s “knowingly or intentionally” language to the
authorization clause, we should read the statute as implicitly
containing an “objectively reasonable good-faith effort” or
“objective honest-effort standard.” Brief for United States 16–17;
cf.
post, at 13 (concurrence arguing that doctors can defend
against a §841 prosecution by proving that they have “act[ed] in
subjective good faith in prescribing drugs”). That is to say, once
a defendant meets his or her burden of production, the Government
can convict “by proving beyond a reasonable doubt that [the
defendant] did not even make an objectively reasonable attempt to
ascertain and act within the bounds of professional medicine.”
Brief for United States 16.
We are not convinced. For one thing, §841, like
many criminal statutes, uses the familiar
mens rea words
“knowingly or intentionally.” It nowhere uses words such as “good
faith,” “objectively,” “reasonable,” or “honest effort.”
For another, the Government’s standard would
turn a defendant’s criminal liability on the mental state of a
hypothetical “reasonable” doctor, not on the mental state of the
defendant himself or herself. Cf.
id., at 24 (Government
arguing that “a physician can violate Section 841(a) when he makes
no objectively reasonable attempt to conform his conduct to
something
that his fellow doctors would view as medical
care” (emphasis added)).
We have rejected analogous suggestions in other
criminal contexts. In
Elonis, for example, we considered the
mental state applicable to a statute that criminalized threatening
communications but contained no explicit
mens rea
requirement. 575 U. S., at 732. The Government argued that the
statute required proof that a
reasonable person would find
the communications threatening.
Id., at 738–739. But, we
said, “[h]aving liability turn on whether a ‘reasonable person’
regards the communication as a threat—regardless of what the
defendant thinks—reduces culpability on the all-important element
of the crime to negligence.”
Id., at 738 (some internal
quotation marks omitted)
. “[A]nd,” we emphasized, “we ‘have
long been reluctant to infer that a negligence standard was
intended in criminal statutes.’ ”
Ibid. (quoting
Rogers v.
United States,
422 U.S.
35, 47 (1975) (Marshall, J., concurring)). We believe the same
of the Government’s proposed standard here.
The Government asserts that we held to the
contrary, and “effectively endorsed” its honest-effort standard, in
United States v.
Moore,
423 U.S.
122 (1975). Brief for United States 26. But the question in
Moore was whether doctors could
ever be held
criminally liable under §841. 423 U. S., at 124.
Moore
did not directly address the issue before us here regarding the
mens rea required to convict under the statute.
Further, the Government, citing
Yermian,
notes that the authorization clause precedes the words “knowingly
or intentionally.” And, the Government argues, grammatically
speaking, that fact prevents the latter
mens rea provision
from modifying the former clause. See Brief for United States
24–25. But
Yermian based its holding on the fact that the
clause preceding the
mens rea provision set forth a
jurisdictional criteria, which is typically not subject to a
scienter requirement. 468 U. S., at 68–69; see also
Rehaif, 588 U. S., at ___ (slip op., at 4
).
Yermian did not base its holding on the grammatical
positioning of the statutory language.
Finally, the Government argues that requiring it
to prove that a doctor knowingly or intentionally acted not as
authorized will allow bad-apple doctors to escape liability by
claiming idiosyncratic views about their prescribing authority.
See,
e.g., Brief for United States 33. This kind of
argument, however, can be made in many cases imposing scienter
requirements, and we have often rejected it on bases similar to
those we have set forth in Part II of this opinion. See,
e.g.,
Rehaif, 588 U. S., at ___ (slip op., at
8);
Liparota, 471 U. S., at 433–434.
We do the same here. The Government, of course,
can prove knowledge of a lack of authorization through
circumstantial evidence. See
ibid. And the regulation
defining the scope of a doctor’s prescribing authority does so by
reference to objective criteria such as “legitimate medical
purpose” and “usual course” of “professional practice.” 21 CFR
§1306.04(a); see
Gonzales, 546 U. S., at 285 (Scalia,
J., dissenting) (“The use of the word ‘legitimate’ connotes an
objective standard of ‘medicine’ ”);
Moore, 423
U. S., at 141–142 (describing Congress’ intent “to confine
authorized medical practice within
accepted limits”
(emphasis added)). As we have said before, “the more unreasonable”
a defendant’s “asserted beliefs or misunderstandings are,”
especially as measured against objective criteria, “the more likely
the jury . . . will find that the Government has carried
its burden of proving knowledge.”
Cheek v.
United
States,
498 U.S.
192, 203–204 (1991). But the Government must still carry this
burden. And for purposes of a criminal conviction under §841, this
requires proving that a defendant knew or intended that his or her
conduct was unauthorized.
IV
The Government argues that we should affirm
Ruan’s and Kahn’s convictions because the jury instructions at
their trials conveyed the requisite
mens rea. Alternatively,
the Government argues that any instructional error was harmless.
But the Court of Appeals in both cases evaluated the jury
instructions under an incorrect understanding of §841’s scienter
requirements. We decline to decide in the first instance whether
the instructions complied with the standard we have set forth
today. Cf.
Rehaif, 588 U. S., at ___ (slip op., at 11).
We leave that and any harmlessness questions for the courts to
address on remand.
* * *
We conclude that §841’s “knowingly or
intentionally”
mens rea applies to the “except as
authorized” clause. This means that in a §841 prosecution in which
a defendant meets his burden of production under §885, the
Government must prove beyond a reasonable doubt that the defendant
knowingly or intentionally acted in an unauthorized manner. We
vacate the judgments of the Courts of Appeals below and remand the
cases for further proceedings consistent with this opinion.
It is so ordered.
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