U.S. v. Platte

Decision Date17 March 2005
Docket NumberNo. 03-1345.,No. 03-1353.,No. 03-1347.,03-1345.,03-1347.,03-1353.
Citation401 F.3d 1176
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ardeth PLATTE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jackie Marie Hudson, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Carol Gilbert, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Scott T. Poland of Poland & Wheeler, Lakewood, CO, for Defendant-Appellant Platte.

Clifford J. Barnard, Boulder, CO, for Defendant-Appellant Hudson.

Susan J. Tyburski of Boyle & Tyburski, Denver, CO, for Defendant-Appellant Gilbert.

James C. Murphy, Assistant United States Attorney (John W. Suthers, United States Attorney, and Robert M. Brown, Assistant United States Attorney, with him on the brief), Denver, CO, for Plaintiff-Appellee.

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

HARTZ, Circuit Judge.

Defendants Ardeth Platte, Carol Gilbert, and Jackie Marie Hudson are Sisters in the Dominican Order. They appeal their convictions for violation of 18 U.S.C. § 2155(a), which prohibits the injury or destruction of national-defense materials or premises with the intent to injure, interfere with, or obstruct the national defense. They contend that (1) the evidence was insufficient to support the convictions; (2) the district court improperly denied their request for a good-faith jury instruction and two other instructions; and (3) the term national defense, as defined in the court's instructions, is unconstitutionally overbroad and vague. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.


In the early morning of October 6, 2002, Defendants entered a Minuteman III Missile site in Weld County, Colorado. As Defendants knew, the site was in a state of high readiness — the nuclear missiles were to be launched within 15 minutes of a Presidential order. Each Defendant wore a suit bearing the initials "CWIT" (standing for "Citizen Weapon Inspection Team") on the back and "Disarmament Specialist" on the front. They brought a banner stating "Sacred Earth & Space Plowshares II-2002." Their "primary motive was to expose the existence of this deadly weapon [the missile] — and their good faith belief in its criminality — to public scrutiny." Aplt. Br. at 31. To gain access to the missile silo, which was enclosed by two fences, they cut a chain securing a lock on each of the fences. They also removed three 10-foot sections of fence by cutting the chain links on either side. The inner fence was posted with signs warning that the area was a "priority one" restricted area, and that deadly force was authorized against intruders.

Once past the fences, Defendants engaged in two ceremonial acts. They poured their own blood, which they carried in baby bottles, on and around the silo cover to form the shape of crosses. This act was in memory of all the victims of war. Then, to symbolize the beating of swords into plowshares, they tapped with ball-peen hammers on the metal rails supporting the blast lid. In addition to the baby bottles with blood and the hammers, Defendants carried with them bolt cutters, tin snips, rosaries, a crucifix, prayer books, and books they had read pertaining to nuclear weapons. Their stated purpose was to expose the site and to stop the threatened use of weapons of mass destruction, which they alleged was in violation of various domestic and international laws and treaties.

Defendants' actions triggered a swift response. Air Force security personnel were diverted from training exercises and arrived at the missile site in several armed vehicles. They crashed through the partially open outer gate because they were not sure it was safe to exit the vehicles. As they approached further, they observed Defendants standing on top of the concrete blast door carrying black bags. The three women appeared to be praying and singing. Because the security personnel could not immediately discern what was in the black bags, they summoned a helicopter and explosives experts. Neighboring Highway 14 was closed in both directions. Defendants were surrounded by officers with guns drawn. Continuing to sing and pray, the three women announced that they were peaceful and surrendered with their hands in the air. Eventually arriving on the scene were 20 to 30 security personnel from the military police, the Sheriff's office, the Office of Special Investigations, the FBI, and the Explosive Ordnance Device Team at the base.

Defendants were each charged with one count of violating 18 U.S.C. § 2155(a), entitled "destruction of national-defense materials, national-defense premises, or national-defense utilities," and one count of violating 18 U.S.C. § 1361, depredation against government property. Before trial the district court entered an order restricting Defendants' presentation to the jury of the basis of their opposition to nuclear missiles. Absent an "offer of proof accepted by the court," Pretrial Orders in Limine, R. Vol. II, doc. 93 at 31, the order prohibited evidence, jury voir dire, jury instructions, and argument regarding

any defense based on necessity or violation of international law or that impugns, inter alia, the lethality, legality, morality, or political wisdom of the Minuteman III missile system, including but not limited to, the following variously described defenses: necessity; duress; choice of evils; privilege; justification; "Nuremberg"; mistake of law; good faith exception to mistake of law; international law violations; jus cogens violations; peremptory norms of international law violations; war crimes violations; customary international law violations; nonderogable jus cogens norm of customary international law violations; international humanitarian law violations; U.S. Army Field Manual violations; International Court of Justice (ICJ) judgment violations; treaty violations; United Nations Charter violations; Vienna Convention violations; Restatement of Foreign Relations Law violations; Geneva Convention or Protocol violations; and/or Tokyo Judgment violations[.]

Id. at 31-32.

A jury trial was held from March 31 to April 7, 2003. The court allowed testimony regarding the Defendants' study and understanding of nuclear weapons and various sources of law, but only as it pertained to their state of mind at the time they entered the missile site. The jury found all three Defendants guilty of both counts. Sisters Hudson, Gilbert, and Platte were sentenced respectively to 30 months', 33 months', and 41 months' imprisonment.


Defendants appeal only their convictions and sentences under 18 U.S.C. § 2155(a), which provides in relevant part:

Whoever, with intent to injure, interfere with, or obstruct the national defense of the United States, willfully injures, destroys, [or] contaminates ... or attempts to so injure, destroy, [or] contaminate ... 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....

A. Sufficiency of Evidence

The offense defined by § 2155(a) has two essential elements. First, the defendant must "willfully injure[ ], destroy[ ], [or] contaminate[ ], ... any national-defense material, national-defense premises, or national-defense utilities." 18 U.S.C. § 2155(a). Second, she must act with the "intent to injure, interfere with, or obstruct the national defense of the United States." Id. Defendants do not challenge the sufficiency of the evidence to establish the first element, so we confine our discussion to the second.

Our task is not to assess whether we would have voted to convict had we been on the jury.

[I]n reviewing the sufficiency of the evidence to support a jury verdict, this court must review the record de novo and ask only whether, taking the evidence — both direct and circumstantial, together with reasonable inferences to be drawn therefrom — in the light most favorable to the government, a reasonable jury could find the defendant[s] guilty beyond a reasonable doubt.

United States v. Beers, 189 F.3d 1297, 1301 (10th Cir.1999) (internal quotation marks omitted). "We do not use this evaluation as a chance to second-guess the jury's credibility determinations, nor do we reassess the jury's conclusions about the weight of the evidence presented." Id. (internal quotation marks omitted).

To determine whether the evidence suffices to prove an "intent to injure, interfere with, or obstruct the national defense," we begin with the definition of national defense in the district court's Jury Instruction No. 16: "a generic concept of broad connotations referring to military establishments and the related activities of national preparedness." R. Vol. II, doc. 126. This definition is taken from Gorin v. United States, 312 U.S. 19, 28, 61 S.Ct. 429, 85 L.Ed. 488 (1941) (prosecution under Espionage Act), and United States v. Kabat, 797 F.2d 580, 586 (8th Cir.1986) (prosecution under § 2155(a)). The question before the jury thus was whether Defendants intended to injure, interfere with, or obstruct a military establishment (the missile site) or national preparedness. In our view, the evidence was sufficient for the jury to answer Yes. (Later in the opinion we address Defendants' arguments that this definition of national defense renders § 2155(a) unconstitutionally overbroad and vague.)

Certainly the jury could properly infer that Defendants intended a disruption like the one they actually caused at the missile site. At the very least, signs on the fence warning that deadly force was authorized against intruders would have alerted them that their entry would elicit a vigorous response. See Wingfield v. Massie, 122 F.3d 1329, 1333 (10th Cir.1997) ("a jury is permitted to draw inferences of subjective intent from a defendant's objective acts"). Moreover, given Defendants' admitted purpose of seeking publicity for their...

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