United States v. Moylan
| Citation | 417 F.2d 1002 |
| Decision Date | 15 October 1969 |
| Docket Number | No. 12988-12996.,12988-12996. |
| Parties | UNITED STATES of America, Appellee, v. Mary MOYLAN, Appellant. UNITED STATES of America, Appellee, v. Philip BERRIGAN, Appellant. UNITED STATES of America, Appellee, v. Thomas LEWIS, Appellant. UNITED STATES of America, Appellee, v. George J. MISCHE, Appellant. UNITED STATES of America, Appellee, v. Thomas MELVILLE, Appellant. UNITED STATES of America, Appellee, v. Marjorie MELVILLE, Appellant. UNITED STATES of America, Appellee, v. John HOGAN, Appellant. UNITED STATES of America, Appellee, v. James DARST, Appellant. UNITED STATES of America, Appellee, v. Daniel BERRIGAN, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
William M. Kunstler, New York City, (Harold Buchman, Fred Weisgal, Baltimore, Md., Robert R. Drinan, William C. Cunningham, Harrop A. Freeman on brief), for appellants.
Barnet D. Skolnik, Asst. U. S. Atty. (Stephen H. Sachs, U. S. Atty., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and WINTER, Circuit Judges.
The defendants appeal their conviction in the United States District Court for the District of Maryland for violation of three federal statutes proscribing the mutilation of Government records, destruction of Government property and interference with the administration of the Selective Service System.1 The facts are uncontroverted. At 12:50 P.M. on May 17, 1968, the appellants entered the office of Local Board No. 33 in Catonsville, Maryland and removed approximately 378 I-A, I-Y and II-A files to an adjacent parking lot where they burned the files with homemade napalm. The appellants, men and women with sincere and strong commitments, readily admit the commission of these acts as a protest against the war in Vietnam.
The appeal is based on asserted error in the trial court's instructions to the jury. The appellants claim that: (1) The trial court erred in charging the jury on the definition of criminal intent and the meaning of "willfully," and (2) That the trial judge should have informed the jury that it had the power to acquit the defendants even if they were clearly guilty of the offenses, or at least, that the court should have permitted their counsel so to argue to the jury.
For the appellants to be convicted of the crimes for which they were indicted, they must have acted knowingly (50 App. U.S.C. § 462(a)) or willfully (18 U.S.C. §§ 1361, 2071(a)). The trial court instructed the jury to the effect that the willful intent requisite to constitute a violation of the statutes involved is the intent on the part of the accused to commit the proscribed acts with knowledge that they were violating the statute. Defense counsel urged upon the court a more expansive interpretation of the word "willful" as used in the statutes, namely that no violation occurred unless defendants performed the admitted acts with a bad purpose or motive. Their position was and is that since they acted from good motives, i. e., to protest a war which they sincerely believed was not only illegal2 but immoral, they could not have "willfully" violated the statutes and must be acquitted. We agree with the interpretation of the trial judge.
To read the term "willfully" to require a bad purpose would be to confuse the concept of intent with that of motive. The statutory requirement of willfulness is satisfied if the accused acted intentionally, with knowledge that he was breaching the statute. While the trial judge allowed evidence to be freely admitted concerning the defendants' motives, whatever motive may have led them to do the act is not relevant to the question of the violation of the statute, but is rather an element proper for the judge's consideration in sentencing.
The cases appellants cite to support their argument with respect to "willfulness" are not controlling in the present situation. In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288, the defendant removed a number of spent bomb casings from an Air Force bombing range under the mistaken belief that the casings had been abandoned. The Supreme Court reversed his conviction, holding that his mistaken belief negated the requisite mens rea. He was acting in good faith since he believed that the casings had been abandoned. However, this is not to say that Morissette would have been entitled to acquittal if he had taken the bomb casings with the knowledge that they were not abandoned, but did so for the purpose of protesting the use of bombs as weapons of destruction. Similarly, the appellants in the instant case could not destroy Government property with knowledge that the destruction was illegal and claim that, due to their motivation, the action lacked the requisite willful intent.
Other cases3 cited by appellants likewise stand for the incontestable proposition that a mistaken belief as to a material fact may negate the requisite mens rea. Here the appellants, by their own admissions accompanying the acts, knowingly and purposely committed the offense denounced by the statute. They do not challenge the validity of the laws under which they were prosecuted. Furthermore, the language of cases cited by appellants supports the interpretation the district court and we place on "willfulness."4
Appellants' second contention is that the trial judge should have informed the jury, as requested, that it had the power to acquit even if appellants were clearly guilty of the charged offenses. They maintain that the judge should have told the jury this or permitted their counsel to argue it to the jury in the face of the judge's instruction on the law. Appellants reason that since the jury has "the power to bring in a verdict in the teeth of both law and facts,"5 then the jury should be told that it has this power. Furthermore, the argument runs, the jury's power to acquit where the law may dictate otherwise is a fundamental necessity of a democratic system. Only in this way, it is said, can a man's actions be judged fairly by society speaking through the jury, or a law which is considered too harsh be mitigated.
Historically, a fierce controversy has raged over the question of whether the trial judge was under a duty to instruct the jury that it may disregard the law as he has explained it.6 The earliest reported case adhering to the distinction between law and fact in regard to the respective roles of judge and jury in criminal cases seems to be Plowden's report of Townsend's case where the reporter comments, "For the office of 12 men is no other than to inquire of Matters of Fact and not to adjudge what the Law is, for that is the office of the Court and not of the Jury * * *."7 While Littleton had earlier recognized the power of the jury to "determine the crime or issue by their verdict"8 upon the basis of both law and fact, it is Lord Coke's famous pronouncement which firmly established the law/fact dichotomy in English Jurisprudence:
The most usual triall of matters of fact is by 12 such men; for ad quaestionem facti non respondent judices; and matters in law the judges ought to decide and discuss; for ad quaestionem juris non respondent juratores.9
In the early history of the American Colonies and for a time after the Revolution juries were nearly always recognized as having the power to judge both law and fact.10 This is exemplified in the early Supreme Court case of Georgia v. Brailsford, 3 Dall. 1, 4, 1 L.Ed. 483, in which Chief Justice Jay declared:
* * * for as, on the one hand, it is presumed that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still, both objects are lawfully within your power of decision.
In criminal cases juries remained the judges of both law and fact for approximately fifty years after the Revolution. However, the judges in America, just as in England after the Revolution of 1688, gradually asserted themselves increasingly through their instructions on the law.
We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.
Concededly, this power of the jury is not always contrary to the interests of justice. For example, freedom of the press was immeasurably strengthened by the jury's acquittal of John Peter Zenger of seditious libel, a violation of which, under the law as it then existed and the facts, he was clearly guilty. In that case Andrew Hamilton was allowed to urge the jury, in the face of the judge's charge, "to see with their own eyes, to hear with their own ears, and to make use of their consciences and understanding in judging of the lives, liberties, or estates of their fellow subjects."11
No less an authority than Dean Pound has expressed the opinion that "Jury lawlessness is the great corrective of law in its actual administration."12 However, this is not to say that the jury should be encouraged in their "lawlessness," and by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to insure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.
To continue reading
Request your trial
-
Commonwealth v. Berrigan
... ... justification statute, found at Section 510 which states: ... § 510. Justification in property crimes ... Conduct ... involving the ... legislative purpose to exclude the defense, later in this ... In United ... States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 ... L.Ed.2d 575 (1980), Justice Rehnquist, ... register their opposition ... " ... United ... States v. Moylan, 417 F.2d 1002, 1008-1009 (4th ... Cir.1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 ... ...
-
Felker v. State
...to the evidence[,] ... is a power that must exist as long as we adhere to the general verdict in criminal cases..." United States v. Moylan, 417 F.2d 1002, 1006 (4th The duty of a jury is to be distinguished from its power. Its duty is to apply the law to the facts and to reach a verdict wh......
-
United States v. Sawyers
...is erroneous. The so-called "right" to a hung jury is at most no greater than the right to an irrational verdict. See United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969); compare United States v. Davis, 413 F.2d 148 (4th Cir. 1969). With respect to either "right," it is clear that a defe......
-
State v. Ragland
...law. See United States v. Dougherty, supra, 473 F.2d at 1136-37; United States v. Simpson, 460 F.2d 515 (9th Cir.1972); United States v. Moylan, supra, 417 F.2d at 1009; State v. Champa, supra, --- R.I. at ----, 494 A.2d at 106; Arshack v. United States, 321 A.2d 845, 851 (D.C.1974). Howeve......
-
Populism, free speech, and the rule of law: the "fully informed" jury movement and its implications.
...v. Dellinger, 472 F.2d 340, 408 (7th Cir. 1972) (nullification instructions may be refused by the trial court); United States v. Moylan, 417 F.2d 1002, 1006-07 (4th Cir. 1969) (although juries have the power to acquit, they should not be told of this power). See also Ballard, 715 P.2d at 64......
-
Julie A. Seaman, Black Boxes
...v. Simpson, 460 F.2d 515, 519-20 (9th Cir. 1972); United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969); United States v. Moylan, 417 F.2d 1002, 1005-09 (4th Cir. 1969); see also discussion infra notes 237-49 and accompanying text. Indeed, several courts have excused jurors or declar......
-
Chapter 5 Historic and Cultural Resources Management on Federal Public Land
...or "object of antiquity").[110] 18 U.S.C. § 1361.[111] 111. U.S. v. Jones, 607 F.2d 269, 273 (9 Cir. 1979). [112] 112. U.S. v. Moylan, 417 F.2d 1002, 1004 (4 Cir. 1969), cert. denied, 397 U.S. 910 (1970).[113] 113. See, e.g., U.S. v. Sprong, 287 F.3d 663, 666 (7 Cir. 2002).[114] 25 U.S.C. §......