Cite as: 526 U. S. 1 (1999)
Scalia, J., dissenting
statute, from over two centuries of federal criminal jurisprudence, applying the conditional-intent doctrine (and that in circumstances where it would not at all have been absurd to require real intent).1 The course selected by the Court, of course—"intent" is sometimes conditional and sometimes not—would require us to sift through these many statutes
1 The one case the Government has come up with is Shaffer v. United States, 308 F. 2d 654 (CA5 1962), cert. denied, 373 U. S. 939 (1963), which upheld a conviction of assault "with intent to do bodily harm" where the defendant had said that if any persons tried to leave the building within five minutes after his departure "he would shoot their heads off," 308 F. 2d, at 655. In my view, and in normal parlance, the defendant did not "intend" to do bodily harm, and there would have been nothing absurd about holding to that effect.
The Government cites six other federal cases, Brief for United States 14-15, n. 5, but they are so inapposite that they succeed only in demonstrating the weakness of its assertion that conditional intent is the federal rule. Two of them, United States v. Richardson, 27 F. Cas. 798 (No. 16,155) (CCDC 1837), and United States v. Myers, 27 F. Cas. 43 (No. 15,845) (CCDC 1806), involve convictions for simple assault with no specific intent, and do not even contain any dictum bearing upon the present question. A third, United States v. Arrellano, 812 F. 2d 1209, 1212, n. 2 (CA9 1987), contains nothing but dictum, since the jury found no intent of any sort. A fourth, United States v. Marks, 29 M. J. 1 (Ct. Mil. App. 1989), involved a defendant who tried to set fire to material that he assertedly believed was flame resistant. The crime he was convicted of, aggravated arson, was, as the court specifically stated, "a general intent crime," id., at 3. And the last two cases, United States v. Dworken, 855 F. 2d 12 (CA1 1988), and United States v. Anello, 765 F. 2d 253 (CA1), cert. denied sub nom. Wendolkowski v. United States, 474 U. S. 996 (1985), both involved conspiracy to possess drugs with intent to distribute. Defendants contended that they could not be convicted because they did not intend to complete the conspired-for transaction unless the quality of the drugs (and, in the case of Dworken, the price as well) was satisfactory. Of course the intent necessary to conspire for a specific-intent crime is not the same as the intent necessary for the crime itself, particularly insofar as antecedent conditions are concerned. And in any event, since it can hardly be thought that the conspirators wanted the quality and price of the drugs to be inadequate, neither case involved the conditional intent that is the subject of the present case.
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