U.S. v. Kabat

• Decision Date: 24 October 1986
• Docket Number: A,CLOUD-MORGA,Nos. 85-1416,s. 85-1416
• Parties: UNITED STATES of America, Appellee, v. Carl KABAT, Appellant. UNITED STATES of America, Appellee, v. Paul KABAT, Appellant. UNITED STATES of America, Appellee, v. Lawrence Jacobppellant. UNITED STATES of America, Appellee, v. Martin John HOLLADAY, Appellant. to 85-1418 and 85-1659.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 580

797 F.2d 580

UNITED STATES of America, Appellee, v. Carl KABAT, Appellant.

UNITED STATES of America, Appellee, v. Paul KABAT, Appellant.

UNITED STATES of America, Appellee, v. Lawrence Jacob CLOUD-MORGAN, Appellant.

UNITED STATES of America, Appellee, v. Martin John HOLLADAY, Appellant.

Nos. 85-1416 to 85-1418 and 85-1659.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 16, 1985.

Decided July 22, 1986.

Opinion on Denieal of Rehearing and Rehearing En Banc Oct. 24, 1986.

Prof. Norman A. Townsend, Atlanta, Ga., and Henry M. Stoever, Kansas City, Mo., for appellant.

Robert G. Ulrich, U.S. Atty., Kansas City, Mo., for appellee.

Before BOWMAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

WOLLMAN, Circuit Judge.

The issue in this case is whether a federal prohibition against sabotage, 18 U.S.C. Sec. 2155 (1982), that requires that the accused have acted "with intent to injure, interfere with, or obstruct the national defense of the United States" can be applied against nuclear protestors who intentionally damage missile sites. Carl Kabat, Paul Kabat, Lawrence Jacob Cloud-Morgan, and Martin John Holladay were convicted by jury of sabotage and other crimes for their activities at two Minuteman II missile silos in Missouri, and on appeal they raise lack of intent as well as international law and necessity defenses. We affirm.

Carl and Paul Kabat, Lawrence Cloud-Morgan, and Helen Woodson on November 9, 1984, took a rented jackhammer and compressor plus other tools to "N5," a U.S. military installation in Missouri housing launch and support facilities for a Minuteman II intercontinental ballistic missile. After cutting the padlock on a perimeter fence, these defendants entered the missile site and used their tools to damage three radar devices, various electrical cables, two locks controlling access to the missile for maintenance, and the concrete launch lid over the missile. Repairs were later estimated at $29,073.60. The defendants while at the site also hung signs bearing messages such as "Violence Ends Where Love Begins," and they left a note explaining that their "intent" had been to save children and the world and to prevent "mass murder" since their Christian faith required them to "accept personal responsibility for ending th[e] cycle of violence that threatens us all." When military security personnel arrived at N5, these defendants were sitting in a semicircle holding hands and singing or chanting. In addition to their tools, these defendants had brought to the site bread and wine, a book of prayers, several pictures of children, and a baby bottle filled with a substance that either was or was supposed to represent blood.

The N5 defendants were charged with conspiracy, 18 U.S.C. Sec. 371 (1982); willful destruction of government property, 18 U.S.C. Sec. 1361 (1982); sabotage; and entering property within the control of the United States for a purpose prohibited by law. 18 U.S.C. Sec. 1382 (1982). Though offered appointed counsel, they chose to represent themselves. The district court ¹ allowed testimony on the destructive power of nuclear weapons, the "offensive" nature of the newer nuclear missiles, the alleged escalation of risks from the availability of nuclear weapons and the nuclear buildup, the role in history of civil disobedience, international law, and the defendants' beliefs that, based upon the statements of religious leaders, they were required by the higher law of God to prevent the crime against humanity and destruction of God's world represented by the nuclear threat. The court, however, instructed the jury that neither good motive alone nor moral, religious, or political belief was a defense to crime and that it would be a violation of their duty as jurors if they were to pass judgment on U.S. nuclear weapons policy. The N5 defendants were convicted on all counts.

At the sentencing the district court characterized the crimes committed by the N5 defendants as "serious." The N5 defendants' actions, the court suggested, constituted unilateral attempts to thwart the policies of elected decisionmakers, legitimatized violence to emphasize personal disagreement, and reflected arrogance in the defendants' certainty in the rightness and righteousness of their own views. ² The court sentenced Woodson ³ and Carl Kabat each to nine years plus restitution on the sabotage count, nine years (to be served consecutively) and restitution on the destruction of property count, six months (to be served concurrently) on the trespassing count, and five years probation (to begin at the time of unconditional release from jail) on the conspiracy count. Paul Kabat was sentenced similarly but with the consecutive sentences at five years each, the concurrent sentence at five months and the probation at four years. For Cloud-Morgan the sentence terms were four years, four years, and four months respectively, with three years probation.

Meanwhile, on February 9, 1985, the first day of the Kabat-Cloud-Morgan-Woodson trial, Martin John Holladay in a show of support for the N5 defendants entered a second missile site, "N11," also in Missouri, and inflicted $1,089.74 in damage (mostly to electrical equipment). Holladay used spray paint to display messages such as "Disarm or Dig Graves," and a letter found on his person proclaimed that he had acted "in hope that we renounce military violence to embrace the loving nonviolence of the Gospels." The letter further declared that it was the law's duty to "uphold rather than hinder" acts of disarmament because nuclear weapons place millions of innocent lives in jeopardy and constitute "crimes against humanity and God." The tools Holladay carried onto the site were inscribed, for example, with Bible verses, and again a baby bottle filled with a substance that either was or was supposed to represent blood was found.

Holladay was charged with willful destruction of government property and sabotage, and he also elected to proceed pro se. The district court ⁴ refused to permit Holladay to argue or present evidence of international law; and while allowing much testimony on the effects of and need for nuclear weapons, the court instructed the jurors several times during the trial that they were not to consider the correctness of U.S. nuclear policy and that good motive was not a defense to crime. Holladay was convicted on both counts and was sentenced to eight years plus restitution and a $1,000 fine on the destruction of property count to be followed upon unconditional release from prison with five years probation on the sabotage count. The court at the sentencing commented on Holladay's arrogance and willingness to set himself up as "judge and jury," above elected representatives and government specialists, on matters far beyond his comprehension.

All defendants on appeal argue that the evidence was insufficient to support the sabotage verdicts because the government failed to show they acted with intent to injure the national defense and that the district courts erred in refusing to permit them to rely on international law defenses. The N5 defendants further argue that the district court through its instructions improperly precluded the jury from considering certain evidence of intent and in effect directed a verdict on that issue, ⁵ while Holladay further argues that the district court erred in taking from the jury the defense of necessity.

I.

The sabotage statute under which the defendants were charged provides that "[w]hoever, with intent to injure, interfere with, or obstruct the national defense of the United States, willfully injures, destroys, * * * or attempts to so injure [or] destroy * * * any national-defense material [or] national-defense premises * * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both." 18 U.S.C. Sec. 2155(a) (emphasis added). The defendants argue that conviction thus requires proof of "specific intent" and that specific intent cannot be inferred merely from the intentional doing of an act but necessitates evidence of subjective state of mind. The government had to--yet failed to--prove, the defendants contend, something beyond the fact that they admittedly intentionally damaged the respective missiles with knowledge of the perceived roles of the missiles in the national defense.

In the context of this same statute, for example, a military court held an airman not guilty of sabotage when he deliberately placed bolts in airplane engines, causing damage in excess of $26,000 to each of two aircraft, because he was angry and upset after receiving a letter of reprimand. United States v. Johnson, 15 M.J. 676 (A.F.C.M.R.1983). The court quoted the airman as having testified, "I was thinking about all of my problems that I had. But I had no intentions whatsoever to interfere with or destruct the national defense--no intentions whatsoever," and concluded that it was not persuaded that the accused intended sabotage. Id. at 678. The court quoted language from United States v. Stewart, 42 C.M.R. 19 (C.M.A.1970), in which it was held that the necessary intent to commit sabotage could not be inferred where the defendant's act had been to deliberately in plain sight of a sailor and an officer throw a pipe and chain into an airplane air intake in hopes of avoiding another cruise assignment. Johnson, 15 M.J. at 678; see id. at 681 (Snyder, J., concurring in part and dissenting in part); see also United States v. Banks, 7 M.J. 501 (A.F.C.M.R.1979) (though finding it unnecessary to reach the issue, the court suggested there was a significant question whether the defendant intended to damage the national defense when he assisted in gluing together a drag parachute in a desire to cause a work stoppage as an act of revenge against the Air Force).

Johnson, however, does not hold that intent to injure the national defense may never be inferred from the intentional commission...