United States v. Walli

• Decision Date: 08 May 2015
• Docket Number: Nos. 14–5220,14–5222.,14–5221,s. 14–5220
• Citation: 785 F.3d 1080
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael R. WALLI; Megan Rice; Greg Boertje–Obed, Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

785 F.3d 1080

UNITED STATES of America, Plaintiff–Appellee

v.Michael R. WALLI; Megan Rice; Greg Boertje–Obed, Defendants–Appellants.

Nos. 14–5220

14–5221

14–5222.

United States Court of Appeals, Sixth Circuit.

Argued: March 12, 2015.

Decided and Filed: May 8, 2015.

ARGUED:Marc R. Shapiro, Orrick, Herrington & Sutcliffe, LLP, New York, New York, for Appellants. Jeffrey E. Theodore, United States Attorney's Office, Knoxville, Tennessee, for Appellee. ON BRIEF:Marc R. Shapiro, Orrick, Herrington & Sutcliffe, LLP, New York, New York, Thomas S. McConville, Orrick, Herrington & Sutcliffe LLP, Irvine, California, Andrew S. Ong, Orrick, Herrington & Sutcliffe LLP, Menlo Park, California, Anne Elkins Murray, Orrick, Herrington & Sutcliffe LLP, Washington, D.C., Anna Lise Lellelid–Douffet, Covington, Louisiana, Judy Kwan, Orrick, Herrington & Sutcliffe LLP, Los Angeles, California, William Patrick Quigley, New Orleans, Louisiana, for Appellants. Jeffrey E. Theodore, United States Attorney's Office, Knoxville, Tennessee, for Appellee.

Before: BOGGS and KETHLEDGE, Circuit Judges; HELMICK, District Judge.^*

KETHLEDGE, J., delivered the opinion of the court in which, HELMICK, D.J., joined. BOGGS, J. (pp. 1089–91), delivered a separate dissenting opinion.

OPINION

KETHLEDGE, Circuit Judge.

In the dark of night on July 28, 2012, in Oak Ridge, Tennessee, an 82 year-old nun and two Army veterans, ages 57 and 63, cut their way through four layers of fences and reached a building where the Department of Energy stores enriched uranium. There the trio spray-painted antiwar slogans, hung crime tape and banners with biblical phrases, splashed blood, and sang hymns. When a security guard finally arrived, the group offered him bread and read aloud a prepared message about “transform[ing] weapons into real life-giving alternatives to build true peace.” Then the group surrendered to the guard's custody.

The group's actions caused about $8,000 of damage to government property. The government eventually charged them with trespassing in violation of 42 U.S.C. § 2278a(c) and injuring government property in violation of 18 U.S.C. § 1361. When the defendants refused to plead guilty to those charges, however, the government pulled the trespassing count (which was only a misdemeanor) and instead charged them with violating the peacetime provision of the Sabotage Act, 18 U.S.C. § 2155(a), which Congress enacted during World War II. That provision applies only if the defendant acted “with intent to injure, interfere with, or obstruct the national defense,” and authorizes a sentence of up to 20 years. A jury convicted the defendants on the sabotage count and the injury-to-property count. On appeal, the defendants argue that, as a matter of law, they lacked the intent necessary to violate the Sabotage Act. We agree; and thus we reverse their sabotage convictions and remand for resentencing.

I.

The relevant facts are undisputed. The Y–12 National Security Complex is located in Oak Ridge, Tennessee. Although the Department of Energy administers the facility, private contractors perform virtually all of its operations. The facility's missions are several: to manufacture certain components for nuclear weapons; to test the reliability of certain components for nuclear weapons; and to store highly enriched uranium, much of which is eventually “down-blended” for civilian use. The facility is not used to store nuclear weapons and not otherwise used to manufacture them. No military operations are conducted there.

The facility stores highly enriched uranium at a building called the HEUMF (Highly Enriched Uranium Materials Facility). That was where the defendants hung banners, spray-painted slogans, and so on. They also struck the corner of the building with small hammers. The group's activities delayed the arrival of a shipment scheduled to arrive that afternoon. The government also shut down the facility for 15 days while it investigated why its security systems had failed to prevent three unarmed citizens from penetrating four layers of fences and multiple “lethal force” zones to reach the HEUMF building.

After the defendants' convictions, the district court sentenced Michael Walli and Greg Boertje–Obed (the Army veterans) to 62 months' imprisonment on each count and Megan Rice (the nun) to 35 months' imprisonment on each count, all to run concurrently. These appeals followed.

II.

A.

The defendants challenge the sufficiency of the evidence supporting their convictions under § 2155(a) of the Sabotage Act. That subsection provides:

Whoever, with intent to injure, interfere with, or obstruct the national defense of the United States, willfully injures, destroys, contaminates or infects, or attempts to so injure, destroy, contaminate or infect any national-defense material, national-defense premises, or national-defense utilities, shall be fined under this title or imprisoned not more than 20 years, or both[.]

The defendants concede that the government proved one element of this offense: that they “injure[d] ... national-defense premises[.]” But the defendants dispute the other element, namely, that they acted “with intent to ... interfere with ... the national defense”—which is what the government argues it proved at trial. We must affirm the defendants' convictions if, based upon the evidence admitted at trial, any rational jury could find beyond a reasonable doubt that they acted with intent to interfere with the national defense when they injured Y–12's premises. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The dispute is primarily legal rather than factual. As an initial matter, there is some confusion as to what “intent” means as used in this statute (and others). Per the “traditional view” of intent, a defendant intends a particular result under two circumstances: first, when he takes an action while consciously desiring that the action cause that result; and second, when he takes an action while knowing that the action is practically certain to cause that result. See 1 Wayne R. LaFave, Substantive Criminal Law § 5.2(a) (2d ed.2014); see also United States v. United States Gypsum Co., 438 U.S. 422, 445, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). As an example of the first scenario, “if A shoots B at such a distance that his chances of killing him are small, but with the desire of killing him, he intends to kill him [.]” 1 LaFave § 5.2(a). As an example of the second, if F places a time-bomb on a plane to kill G, he intends to kill everyone on the plane. Id.

Per the “modern view” of intent, in slight contrast, a defendant intends a particular result only in the first scenario, i.e., if he consciously desires it as a result of the prohibited action. Id. § 5.2(b). In the second scenario—i.e., when the defendant knows that his action is practically certain to have a particular result, but does not consciously desire it—he acts knowingly. Id.; see also United States v. Ogden, 685 F.3d 600, 604 (6th Cir.2012) (“a defendant acts knowingly” when he is aware that a specified result “is practically certain to follow from his conduct”) (internal quotation marks omitted).

Although these distinctions are helpful in analyzing this case, they make little difference to the outcome. For even under the modern view, a jury may infer that a defendant consciously desires a result if he “ ‘knows that result is practically certain to follow from his conduct.’ ” Gonzales v. Carhart, 550 U.S. 124, 155, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (quoting 1 LaFave § 5.2(a)). For purposes of the defendants' argument as to the sufficiency of the evidence, therefore, proof that they acted knowingly is proof enough that they acted intentionally. Hence the question before us is this: whether the jury could rationally find that, when the defendants cut their way into Y–12 and engaged in their protest activities there, they consciously desired to interfere with the national defense or knew that such interference was practically certain to result.

The answer to that question depends on what it means, for purposes of § 2155(a), to “interfere with ... the national defense.” We begin with the term “the national defense,” which the Sabotage Act does not define. But the Supreme Court has defined that term for purposes of a companion statute, the Espionage Act (which likewise does not define it). In Gorin v. United States, 312 U.S. 19, 61 S.Ct. 429, 85 L.Ed. 488 (1941), the Court held that “the national defense” is “a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.” Id. at 28, 61 S.Ct. 429 (internal quotation marks omitted). We think it best to adopt the Court's definition absent some good reason to reject it; and like the Tenth Circuit, we see none. See United States v. Platte, 401 F.3d 1176, 1190 (10th Cir.2005) ; see also United States v. Kabat, 797 F.2d 580, 586 (8th Cir.1986) (adopting the same definition).

That said, the Gorin definition is so general (and thus vague) as to be of limited use for purposes of the Sabotage Act. It is hard to determine what amounts to “interference with” a “generic concept.” What we need, within the bounds marked out in Gorin, is a more concrete conception of the national defense. But Gorin itself suggests a line of inquiry. To speak of “military establishments” and “related activities of national preparedness” raises the question: preparedness for what? The answer surely concerns military activity; but the Eighth Circuit has provided an answer even more specific. To begin, the national defense is a function —not a resource, object, or idea. See Kabat, 797 F.2d at 587 (interference with the national defense means interference with “the functioning of established military systems”). Specifically, “the national defense” refers to “the nation's capacity to wage war and defend attacks. ” Id. at 586 (emphasis added). Thus, to show some injury or interference with...