U.S. v. Doe

• Decision Date: 12 February 1998
• Docket Number: No. 97-30042,97-30042
• Parties: 98 Cal. Daily Op. Serv. 1083 UNITED STATES of America, Plaintiff-Appellee, v. Jane DOE (R.S.W.), Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 631

136 F.3d 631

98 Cal. Daily Op. Serv. 1083

UNITED STATES of America, Plaintiff-Appellee, v. Jane DOE (R.S.W.), Defendant-Appellant.

No. 97-30042.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1997.

Decided Feb. 12, 1998.

Timothy Cavan, Assistant Federal Defender, Billings, MT, for defendant-appellant.

C. Ed Laws, Assistant United States Attorney, Billings, MT, for plaintiff-appellee.

Appeal from the United States District Court from the District of Montana; Jack D. Shanstrom, District Judge, Presiding. D.C. No. CR-96-00034-1 (JDS).

Before FLETCHER and O'SCANNLAIN, Circuit Judges, and SCHWARZER, ^* Senior District Judge.

Opinion by Judge SCHWARZER; Dissent by Judge Fletcher.

SCHWARZER, Senior District Judge:

R.S.W., a young Indian person on the Northern Cheyenne Indian Reservation, was found guilty of juvenile delinquency pursuant to 18 U.S.C. § 5032 after a bench trial in the district court for having committed arson in violation of 18 U.S.C. §§ 81 and 1153. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm but on a ground different from that relied on by the district court.

I.

On February 12, 1996, at approximately 10 a.m., a fire occurred at the Morning Star School in Lame Deer on the Northern Cheyenne Indian Reservation in Montana. It caused extensive damage to the building but no one was injured. R.S.W. at that time was twelve years old and in the seventh grade.

Prior to the fire, R.S.W. and a friend went into the girls restroom of the school. Two automatic paper towel dispensers, designed to dispense one paper towel sheet at a time, were located on a privacy partition inside the restroom. As the girls talked, R.S.W. began playing with a lighter she had with her. According to her testimony at trial, first she lit one corner of a paper towel from one of the dispensers. She let the towel burn for a few seconds, then blew out the flame and put the burned towel in the sink. She then returned to the paper towel dispenser and lit the left corner of another towel protruding from it. She let the flame burn for a second and blew it out. She then lit the right corner of the same towel in the dispenser, blew it out and followed her friend out of the bathroom. The building subsequently caught fire and the school was evacuated. Investigation determined the fire originated in the girls restroom.

The district court found that R.S.W. "knew what she was doing when she lit the paper towel" and "knew the likely result of her conduct would damage the school." It concluded that "the United States had proven beyond a reasonable doubt that the defendant intended to set fire to or burn the Lame Deer High School since she was aware that an unattended fire in a building can result in the building burning." As a result, the district court found R.S.W. guilty and sentenced her to five years probation.

II.

The question presented by this appeal is what mens rea is required to be proved to establish a violation of the federal arson statute, 18 U.S.C. § 81. ¹ The district court did not address the issue directly but its finding implies that it assumed knowledge that burning the building down was a likely result of the act was an element of the offense. We review the district court's construction or interpretation of a statute de novo. United States v. DeLaCorte, 113 F.3d 154, 155 (9th Cir.1997).

Section 81 makes it an offense to "willfully and maliciously set[ ] fire to or burn a building." Prior interpretations of "willfully" are not necessarily binding or helpful, for as the Supreme Court has noted, " '[w]illful,' ... is a 'word of many meanings,' and 'its construction [is] often ... influenced by its context.' " Ratzlaf v. United States, 510 U.S. 135, 141, 114 S.Ct. 655, 659, 126 L.Ed.2d 615 (1994) (quoting Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418 (1943)). In analyzing the mens rea requirement of federal criminal statutes, courts "must follow Congress' intent as to the required level of mental culpability for any particular offense." United States v. Bailey, 444 U.S. 394, 406, 100 S.Ct. 624, 632, 62 L.Ed.2d 575 (1980).

The legislative history of § 81 is silent as to the intended meaning of "willfully and maliciously." In the absence of any indication to the contrary, we must assume that when Congress adopted the common law definition of the crime of arson-the willful and malicious burning of a building-it intended to adopt the meaning that common law gave that phrase. ² Moskal v. United States, 498 U.S. 103, 116-17, 111 S.Ct. 461, 469-70, 112 L.Ed.2d 449 (1990) (where a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the term must generally be given that meaning); United States v. Loera, 923 F.2d 725, 727-28 (9th Cir.1991) ("[t]he common-law meaning of a common-law term used in a federal criminal statute provides a source from which statutory precision may be derived") (citation omitted); United States v. Juvenile Male, 930 F.2d 727, 728 (9th Cir.1991) ("Because 'assault' is not defined in the statute, we have construed it to be equivalent to common law assault."); United States v. Gullett, 75 F.3d 941, 947 (4th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 134, 136 L.Ed.2d 83 (1996) ("[I]f Congress uses a common-law term in a federal criminal statute without defining it, we must presume that Congress adopted the common-law definition of that term.").

At common law, "[a]rson is a crime of general, rather than specific intent and the requirement that the defendant act 'wilfully and maliciously' does not mean that the defendant must have an actual subjective purpose that the act he does intentionally shall produce either (1) setting a fire or burning of the structure or (2) damage to or destruction of said structure." Dean v. State, 668 P.2d 639, 643 (Wyo.1983); State v. Scott, 118 Ariz. 383, 576 P.2d 1383, 1385 (1978); see also State v. O'Farrell, 355 A.2d 396, 398 (Me.1976); State v. Bell, 113 Ariz. 279, 551 P.2d 548, 550 (1976); United States v. Acevedo-Velez, 17 M.J. 1, 2 (C.M.A.1983); 6A C.J.S. Arson § 6, 223 (1975). ³ "To be a willful act, the setting of the fire must be a conscious, intentional act done knowingly and according to a purpose, as distinguished from a fire that was started by accident or defendant's involuntary act." 5 Am.Jur.2d Arson and Related Offenses § 7 (1995); see also Isaac v. State, 645 So.2d 903, 908 (Miss.1994) (citing Curtis' Treatise on the Law of Arson); Dean, 668 P.2d at 642; Linehan v. State, 442 So.2d 244, 247 (Fla.Dist.Ct.App.1983); Scott, 576 P.2d at 1385; State v. Nelson, 17 Wash.App. 66, 561 P.2d 1093, 1096 (1977). " '[M]aliciously' means that state of mind which actuates conduct injurious to others without lawful reason, cause or excuse." Dean, 668 P.2d at 643; Scott, 576 P.2d at 1385; see also 5 Am.Jur.2d Arson and Related Offenses § 7 (1995) (an act "done with a design to do an intentional wrongful act ... toward the public, without any legal justification, excuse or claim of right"). ⁴

At common law, therefore, arson did not require proof of an intent to burn down a building, or of knowledge this would be the probable consequence of the defendant's act. The elements of willfulness and maliciousness are established by proof that the defendant set the fire intentionally and without justification or lawful excuse. ⁵ Every state jurisdiction with an arson statute containing the generic terms "willfully and maliciously" has so interpreted the statute. ⁶ Those jurisdictions not following the common law definition either have eliminated "willfully and maliciously" from their statutes ⁷ or have amended their statutes to include a different definition of that phrase. ⁸ Given the uniform construction at common law of the "willful and malicious" element, and the absence of evidence to the contrary, we must assume that Congress knew how the common law defined that phrase and intended to adopt that definition in enacting § 81.

We are aware of only one federal appellate decision that has addressed the mens rea requirement under § 81. In United States v. M.W., 890 F.2d 239 (10th Cir.1989), the court affirmed a conviction, holding that a finding that the defendant was "consciously aware that his conduct would result in setting fire to or burning the school building ... established knowing conduct and was, therefore, sufficient to support [the conviction]" under § 81. Id. at 241. ⁹ While we agree with the result reached by the court, we disagree with its reasoning. The court did not address the common law definition of the crime and instead made reference to the Model Penal Code analysis of mens rea. We respectfully reject its analysis which implies a higher mens rea requirement than exists at common law. ¹⁰

III.

We turn then to the facts. The district court's findings of fact are reviewed for clear error. United States v. Kohli, 110 F.3d 1475, 1476 (9th Cir.1997). Evidence is sufficient to support a conviction unless, viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Iriarte-Ortega, 113 F.3d 1022, 1024 n. 2 (9th Cir.1997) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)), modified, 127 F.3d 1200 (9th Cir.1997). The same test applies to both jury and bench trials. United States v. Mayberry, 913 F.2d 719, 721 (9th Cir.1990).

The district court found that R.S.W. set fire to the paper towel intentionally: "she knew what she was doing when she lit the paper towel." This evidence-R.S.W.'s own testimony-is undisputed. There is no suggestion that the fire started as a result of accident or negligence. The finding is not clearly erroneous.

The court went on to find that R.S.W. knew the likely result of her conduct would damage the school. Given that common law arson is a...