Seventh Circuit Notes Split Re Interpretation of Mens Rea Requirement in Drug Manufacturing Statute

Per U.S. v. Khattab, --- F.3d ----, 2008 WL 2971808 (7th Cir. Aug 05, 2008):

There is a split among our sister circuits as to the proper interpretation of the mens rea requirement in 21 U.S.C. § 841(c)(2)-one circuit believes the statute requires a defendant's subjective knowledge that the drugs he possesses or distributes will be used to manufacture a controlled substance, while at least three other circuits parse the statute to allow conviction based upon either subjective knowledge or an objective "cause to believe." Compare United States v. Truong, 425 F.3d 1282, 1289 (10th Cir.2005) (requiring government to prove "actual knowledge, or something close to"), and United States v. Saffo, 227 F.3d 1260, 1269 (10th Cir.2000) ("The 'reasonable cause to believe' standard thus comports with the subjective 'guilty mind' or 'guilty knowledge' requirement for imposing criminal liability."), with United States v. Galvan, 407 F.3d 954, 957 (8th Cir.2005) (rejecting proposed jury instruction that required actual knowledge and ignored "reasonable cause to believe" statutory language); United States v. Kaur, 382 F.3d 1155, 1157-58 (9th Cir.2004) ("[C]onsistent with the text of the statute, the instruction incorporates both subjective and objective considerations."); and United States v. Prather, 205 F.3d 1265, 1270 (11th Cir.2000) ("[T]he jury thus needed to find either that he knew the pseudoephedrine would be used to manufacture methamphetamine or that he had reasonable cause to believe that it would be."). The district court applied the more stringent standard of the Tenth Circuit, which requires "actual knowledge, or something close," and concluded that the government sufficiently proved that Khattab knew that the pseudoephedrine he attempted to purchase would be used to manufacture methamphetamine.