U.S. v. Kurka
| Decision Date | 03 June 1987 |
| Docket Number | Nos. 86-3064,86-3065,s. 86-3064 |
| Citation | 818 F.2d 1427 |
| Parties | 23 Fed. R. Evid. Serv. 595 UNITED STATES of America, Plaintiff-Appellee, v. Ronald Joseph KURKA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David Lee COMBS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Marianne D. Bachers, Eugene, Or., and Kenneth Lerner, Portland, Or., for defendant-appellant Kurka.
Michael V. Phillips, Eugene, Or., for defendant-appellant Combs.
James L. Sutherland, Eugene, Or., for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
Before ANDERSON, HUG and CANBY, Circuit Judges.
Appellant Combs was convicted, under criminal statute 18 U.S.C. Sec. 33 (1982), of having damaged, with reckless disregard for the safety of human life, a motor vehicle in interstate commerce. Appellant Kurka was convicted, under 18 U.S.C. Sec. 2 (1982), of having aided and abetted Combs in violating 18 U.S.C. Sec. 33. The dispositive issue presented on appeal is whether "willful" damage to motor vehicles is an essential element of the crime proscribed by 18 U.S.C. Sec. 33. The indictment did not charge that the damage to the vehicle had been done willfully, and the instructions to the jury did not require such a finding in order to convict the defendants. We hold that willful damage to a motor vehicle is an essential element of the crime proscribed by 18 U.S.C. Sec. 33 and, therefore, we reverse the judgment of conviction for both defendants.
The evidence presented by the Government was that Kurka and Combs, after a beer party, followed a bus carrying passengers in interstate commerce. Kurka was the driver and Combs was the passenger in Kurka's pickup truck. Combs took a rifle from the gun rack of the truck and fired the rifle at the bus on two separate occasions, hitting the bus both times.
The Government introduced convincing evidence that Combs had shot at the bus and, with Kurka's aid, damaged it willfully. However, it is fatal to a conviction if all of the elements of a crime have not been charged and the jury instructed on those elements, regardless of the proof adduced. Thus, if "willful" damage to the vehicle is an essential element of the crime, then it was essential that both the indictment and the jury instructions included that element.
On September 11, 1985, a grand jury indicted Kurka and Combs under 18 U.S.C. Secs. 33 and 2. 18 U.S.C. Sec. 33 states, in pertinent part:
Destruction of Motor Vehicles or Motor Vehicle Facilities
Whoever willfully, with intent to endanger the safety of any person on board or anyone who he believes will board the same, or with a reckless disregard for the safety of human life, damages, disables, destroys, tampers with ... any motor vehicle which is used, operated, or employed in interstate or foreign commerce ... shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
The indictment read as follows:
On or about August 6, 1984, in the District of Oregon, RONALD JOSEPH KURKA and DAVID LEE COMBS defendants herein, did, with a reckless disregard for the safety of human life, damage a motor vehicle, that is, a bus of the Greyhound Corporation, then being used, operated, and employed in interstate commerce from Portland, Oregon to San Francisco, California by firing two rifle shots at said bus; all in violation of Title 18, United States Code, Sections 33 and 2.
The above indictment omits the word "willfully." The appellants moved to dismiss the indictment on the ground that it failed to allege that the damage to the bus was inflicted willfully. The motion was denied. The jury instructions given by the district judge also omitted the element of willfulness.
The question presented is whether a person can be convicted under the statute, if he, with reckless disregard for the safety of human life, has merely damaged a motor vehicle, or whether he, with reckless disregard for the safety of human life, must have willfully damaged a motor vehicle. No cases have been called to our attention that discuss that issue, nor have we discovered any.
We first look to the actual language used and the grammatical construction of the statute.
The recommendation of the magistrate, which was adopted by the district court in denying the motion to dismiss, stated:
The indictment charges that the defendants acted with reckless disregard for the safety of human life and therefore sufficiently charges a violation of 18 U.S.C. Sec. 33. In fact, a willful action and a reckless action seem inconsistent by definition. Defendant's motion to dismiss ... should be denied.
The two mental states are not inconsistent, however, because the willful intent relates to the damage to the vehicle, and the recklessness relates to the risk to human life. It is not at all inconsistent for Congress to have required a willful intent to damage the vehicle before an act that damages a motor vehicle and recklessly endangers human life can be punished by 20 years in prison.
This interpretation of the statute can be more readily seen by the insertion of brackets:
Whoever willfully, (with the intent to endanger the safety of any person on board or anyone he believes will board the same, or with a reckless disregard for the safety of human life,) damages ... any motor vehicle which is used, operated, or employed in interstate or foreign commerce....
Under this interpretation of the statute, which is urged by the appellants, a person would violate the statute if (1) he willfully damaged a vehicle in interstate commerce with the intent to endanger the safety of any person on board or anyone who he believes will be on board; or (2) if he willfully damaged a vehicle in interstate commerce with a reckless disregard for human life. Thus, the Government would have to prove, first, that he willfully damaged the vehicle, and also prove that he either intentionally endangered persons on board or had a reckless disregard for the safety of human life.
The Government reads the statute as follows:
Whoever (willfully, with the intent to endanger the safety of any person on board or anyone he believes will board the same,) or (with a reckless disregard for the safety of human life,) damages ... any motor vehicle which is used, operated, or employed in interstate commerce....
The Government in its brief seems to argue at one point that the word "willfully" modifies "endanger the safety of any person ..." and thus is merely a redundant expression of the intent to endanger the safety of any such person. Grammatically, this construction is not possible. If "willfully" were to modify "endanger" it would have to provide "willfully ... endangers."
Therefore, the only way that the statute could be read grammatically, as bracketed above, is with "willfully" modifying the damage to the vehicle. Under this construction, the first clause, which would require an actual intent to endanger the safety of those on board, would also require "willful" damage to the vehicle; whereas, the second clause, which requires only a reckless disregard for human life, would require only damage to the vehicle and not "willful" damage. This would be a most peculiar result, where the greater threat to human life, "intent," would require willful damage to the vehicle, and the lesser threat to human life, "reckless," would require only damage to the vehicle and not "willful" damage.
An examination of the symmetry of section 33 makes it apparent that the Government's interpretation was not the intended construction of the statute. Section 33 is set forth in full as follows:
Sec. 33. Destruction of motor vehicles or motor vehicle facilities
Whoever willfully, with intent to endanger the safety of any person on board or anyone who he believes will board the same, or with a reckless disregard for the safety of human life, damages, disables, destroys, tampers with, or places or causes to be placed any explosive or other destructive substance in, upon, or in proximity to, any motor vehicle which is used, operated, or employed in interstate or foreign commerce, or its cargo or material used or intended to be used in connection with its operation; or
Whoever willfully, with like intent, damages, disables, destroys, sets fire to, tampers with, or places or causes to be placed any explosive or other destructive substance in, upon, or in proximity to any garage, terminal, structure, supply, or facility used in the operation of, or in support of the operation of, motor vehicles engaged in interstate or foreign commerce or otherwise makes or causes such property to be made unworkable, unusable, or hazardous to work or use; or
Whoever, with like intent, willfully disables or incapacitates any driver or person employed in connection with the operation or maintenance of the motor vehicle, or in any way lessens the ability of such person to perform his duties as such; or
Whoever willfully attempts to do any of the aforesaid acts--shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
18 U.S.C. Sec. 33.
The pattern of the section is to punish a person who
1. Willfully damages a motor vehicle in interstate commerce, with the prescribed intent of intentionally or recklessly endangering human life, or
2. Willfully damages a facility used in interstate commerce "with like intent" or
3. Willfully disables a driver or operator of such a vehicle, "with like intent."
If the first paragraph did not require willful damage to the vehicle plus the prescribed intent of intentionally or recklessly endangering human life, then the phrase "with like intent" in the two succeeding paragraphs would have no reference point and would...
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