United States v. Urfer, Bonnie L. ( 2002 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    Nos. 01-3680 and 01-3681
    United States of America,
    Plaintiff-Appellee,
    v.
    Bonnie L. Urfer and Michael R. Sprong,
    Defendants-Appellants.
    Appeals from the United States District Court
    for the Western District of Wisconsin.
    No. 00 CR 100--John C. Shabaz, Judge.
    Submitted February 25, 2002--Decided April 26, 2002
    Before Posner, Easterbrook, and Williams,
    Circuit Judges.
    Posner, Circuit Judge. The U.S. Navy has
    an ELF (extremely low frequency) system
    that broadcasts communications to
    submerged U.S. submarines that are armed
    with intercontinental ballistic missiles
    fitted with nuclear warheads. The ELF
    facility in Wisconsin (there is another
    in Michigan) includes a 28-mile-long
    antenna strung on wooden poles on federal
    government land. Urfer and Sprong, the
    defendants in this case, sawed down three
    of the poles, disabling the facility for
    24 hours. They fastened literature
    denouncing nuclear-armed submarines on
    the poles and spray-painted "Nuremberg"
    on one of them, a reference to the fact
    that the Nuremberg Tribunal punished
    transgressions of international law by
    Germans who were acting in conformity
    with domestic law. United States v.
    Sisson, 
    399 U.S. 267
    , 271 (1970); United
    States v. Maxwell, 
    254 F.3d 21
    , 29 (1st
    Cir. 2001). Tried for "willfully
    injur[ing]" federal government property
    in violation of 18 U.S.C. sec.sec. 1361,
    1362, the defendants defended on the
    ground that a Michigan lawyer named
    Anabel Dwyer had advised them that they
    were authorized to destroy the ELF system
    because it violates international law.
    The judge instructed the jury that it
    could not convict the defendants if they
    "honestly believed their attorney’s
    advice and acted in honest ignorance of
    their legal duties." The jury, apparently
    not believing that the defendants had
    "acted in honest ignorance of their legal
    duties," convicted them. They received
    light sentences--six months and two
    months in prison, respectively, plus they
    must pay restitution of several thousand
    dollars for the damage they caused the
    ELF facility. They argue that the judge
    should not have instructed the jury that
    it could consider the reasonableness of
    the lawyer’s advice and should have
    permitted the defense to present
    witnesses (other than attorney Dwyer, who
    did testify) who would testify about the
    dangers to world peace created by the
    Trident submarine (which the defendants
    regard as a first-strike weapon), about
    international law relating to nuclear
    weapons, about the history of civil
    disobedience, and about kindred subjects
    bearing, they contend, however remotely
    on their efforts to disable the ELF
    system.
    These arguments have no merit. To begin
    with, the reasonableness of a lawyer’s
    advice is indeed relevant to a
    determination of willfulness. United
    States v. Benson, 
    941 F.2d 598
    , 614-15
    (7th Cir. 1991), amended, 
    957 F.2d 301
    (7th Cir. 1992); United States v.
    Monteleone, 
    804 F.2d 1004
    , 1011 (7th Cir.
    1986). The Supreme Court has made this
    clear in the cognate area of criminal
    prosecutions of tax protesters. "[T]he
    more unreasonable the asserted beliefs or
    misunderstandings are, the more likely
    the jury will consider them to be nothing
    more than simple disagreement with known
    legal duties imposed by the tax laws and
    will find that the Government has carried
    its burden of proving knowledge." Cheek
    v. United States, 
    498 U.S. 192
    , 203-04
    (1991); see also United States v.
    Hilgeford, 
    7 F.3d 1340
    , 1344 (7th Cir.
    1993); United States v. Barnett, 
    945 F.2d 1296
    , 1299 (5th Cir. 1991); United States
    v. Lussier, 
    929 F.2d 25
    , 31 (1st Cir.
    1991) (per curiam); United States v.
    Mann, 
    884 F.2d 532
    , 537 n. 3 (10th Cir.
    1989). There are almost a million lawyers
    in the United States. Not all of them are
    competent; not all are honest. If
    unreasonable advice of counsel could
    automatically excuse criminal behavior,
    criminals would have a straight and sure
    path to immunity.
    As for the judge’s refusal to allow the
    defendants to turn the trial into a
    referendum on U.S. defense strategy,
    international law, and civil
    disobedience, it was well within his
    discretion. "A judge may, and generally
    should, block the introduction of
    evidence supporting a proposed defense
    unless all of its elements can be
    established." United States v. Haynes,
    
    143 F.3d 1089
    , 1090 (7th Cir. 1998). (For
    the application of this principle to two
    cases that are much like the present one,
    see United States v. 
    Maxwell, supra
    , 254
    F.3d at 30, and United States v.
    Komisaruk, 
    885 F.2d 490
    , 492-94, 495 (9th
    Cir. 1989).) Obviously, disagreement with
    U.S. defense policy and moral disapproval
    of a law are not defenses to violating
    the law, and they are related tenuously
    if at all to the sincerity of the
    defendants’ belief that they were engaged
    in a legally privileged activity. The
    introduction of such evidence would have
    lengthened the trial and confused the
    jury and done little for the defendants
    since the evidence in question was a pale
    cousin of the evidence on which they
    primarily relied--the advice of a lawyer.
    See Fed. R. Evid. 403; cf. Hamling v.
    United States, 
    418 U.S. 87
    , 127 (1974);
    United States v. Pulido, 
    69 F.3d 192
    , 204
    (7th Cir. 1995); United States v.
    Flitcraft, 
    803 F.2d 184
    , 185-86 (5th Cir.
    1986).
    The only part of the excluded evidence
    that was clearly related to the charges
    was the part that concerned international
    law, specifically the argument that the
    defendants’ trespass and destruction of
    government property were privileged by
    that law; but questions of law are for
    the judge, not the jury, to decide. E.g.,
    Gramercy Mills, Inc. v. Wolens, 
    63 F.3d 569
    , 571 (7th Cir. 1995); Desnick v.
    American Broadcasting Cos., 
    44 F.3d 1345
    ,
    1349 (7th Cir. 1995); United States v.
    Fawaz, 
    881 F.2d 259
    , 261 (6th Cir. 1989).
    This includes questions of international
    law. McKesson HBOC, Inc. v. Islamic
    Republic of Iran, 
    271 F.3d 1101
    , 1111
    (D.C. Cir. 2001); United States ex rel.
    Saroop v. Garcia, 
    109 F.3d 165
    , 167 (3d
    Cir. 1997); Hilao v. Estate of Marcos,
    
    103 F.3d 789
    , 794 (9th Cir. 1996);
    Friedrich v. Friedrich, 
    78 F.3d 1060
    ,
    1064 (6th Cir. 1996); Echeverria-
    Hernandez v. INS, 
    923 F.2d 688
    , 692,
    vacated on other grounds, 
    946 F.2d 1481
    (9th Cir. 1991) (en banc).
    The only error committed at trial was in
    the defendants’ favor. No advice of
    counsel instruction should have been
    given. There is no such thing as an
    "advice of counsel" defense. United
    States v. 
    Benson, supra
    , 941 F.2d at 614;
    Markowski v. SEC, 
    34 F.3d 99
    , 104-05 (2d
    Cir. 1994); Rea v. Wichita Mortgage
    Corp., 
    747 F.2d 567
    , 576 (10th Cir.
    1984); United States v. Civella, 
    666 F.2d 1122
    , 1126 (8th Cir. 1981); United States
    v. Conforte, 
    624 F.2d 869
    , 876 (9th Cir.
    1980). What is true, as the cases that we
    have just cited explain, is that if a
    criminal statute requires proof that the
    defendant knew he was violating the
    statute in order to be criminally liable
    for the violation, and it is unclear
    whether the statute forbade his conduct,
    the fact that he was acting on the advice
    of counsel is relevant because it bears
    on whether he knew that he was violating
    the statute. See also United States v.
    Louderman, 
    576 F.2d 1383
    , 1390 (9th Cir.
    1978). In this case, however, the
    defendants do not deny that they were
    violating the statute. They knew it was a
    crime to destroy government property.
    Their argument is that they were advised
    by counsel that the statute could not be
    applied to them.
    We do not see how such an argument can
    operate as a defense in a case involving
    the destruction of property. It is true
    that the statute punishes only "willful"
    damage to government property. As has
    often been remarked, the meaning of
    "willful" varies with the context. E.g.,
    Spies v. United States, 
    317 U.S. 492
    , 497
    (1943); United States v. Gage, 
    183 F.3d 711
    , 719 (7th Cir. 1999) (concurring
    opinion). In the case of criminal laws
    that codify a society’s basic moral
    prohibitions, which is to say
    prohibitions of things that are bad in
    themselves ("mala in se"), a finding of
    willfulness requires proof only that the
    defendant acted deliberately, not that he
    knew that his act was illegal--that
    isassumed. E.g., United States v. Starks,
    
    157 F.3d 833
    , 837-39 (11th Cir. 1998);
    United States v. O’Hagan, 
    139 F.3d 641
    ,
    647 (8th Cir. 1998); United States v.
    Fierros, 
    692 F.2d 1291
    , 1295 (9th Cir.
    1982); Williams v. North Carolina, 
    325 U.S. 226
    , 243 (1945) (concurring
    opinion). In such cases, as Judge Learned
    Hand explained in American Surety Co. v.
    Sullivan, 
    7 F.2d 605
    , 606 (2d Cir. 1925),
    "the word ’willful,’ even in criminal
    statutes, means no more than that the
    person charged with the duty knows what
    he is doing. It does not mean that, in
    addition, he must suppose that he is
    breaking the law." In contrast, in the
    case of laws that attach criminal
    punishment to conduct that not everyone
    knows is criminal ("mala prohibita"),
    such as the failure to pay a particular
    tax or register a gun, a finding of
    willfulness requires proving not only
    that the defendant acted deliberately but
    also that he knew he was violating the
    law. E.g., Ratzlaf v. United States, 
    510 U.S. 135
    , 141, 144-46 (1994); Cheek v.
    United 
    States, supra
    , 498 U.S. at 199-
    200, 201-02; United States v. 
    Benson, supra
    , 941 F.2d at 613. "Willfulness is
    often required where a statute outlaws
    conduct commonly thought to be lawful. In
    some measure, the willfulness requirement
    reverses the usual rubric that ignorance
    of the law is no defense." United States
    v. Andrade, 
    135 F.3d 104
    , 108 (1st Cir.
    1998).
    Destroying other people’s property is
    malum in se, and thus is willful provided
    only that the defendant knows that he’s
    destroying another person’s property
    without the person’s authorization.
    Morissette v. United States, 
    342 U.S. 246
    , 270-71 (1952); United States v.
    McCalvin, 
    608 F.2d 1167
    , 1171 (8th Cir.
    1979) (per curiam); People v. Datema, 
    533 N.W.2d 272
    , 278 n. 15 (Mich. 1995). The
    defendants’ conduct obviously was willful
    in that sense. They had no more right to
    saw down the antenna poles because they
    thought the statute might be invalid as
    applied to them than they would be
    entitled to murder the commander of the
    ELF facility if advised by lawyer Dwyer
    that the federal murder statute could not
    validly be used to punish a murder
    committed for the purpose of disrupting
    the facility. Which is to say (though
    this is gilding the lilly) that the
    lawyer’s advice to these defendants was
    indeed unreasonable. Even if it were
    contrary to international law for a
    nation to possess nuclear weapons,
    domestic law could properly and does make
    it a crime "to correct a violation of
    international law by destroying
    government property." United States v.
    Allen, 
    760 F.2d 447
    , 453 (2d Cir. 1985);
    see also United States v. 
    Maxwell, supra
    ,
    254 F.3d at 29-30; United States v.
    
    Komisaruk, supra
    , 885 F.2d at 497; United
    States v. Montgomery, 
    772 F.2d 733
    , 737
    (11th Cir. 1985). It would be especially
    bizarre to suppose that antiwar activists
    have a right to disable the United States
    from using nuclear weapons when many
    other nations, not plagued by such
    activists, possess these weapons.
    Affirmed.
    

Document Info

Docket Number: 01-3680

Judges: Per Curiam

Filed Date: 4/26/2002

Precedential Status: Precedential

Modified Date: 9/24/2015

Authorities (40)

United States v. Maxwell-Anthony , 254 F.3d 21 ( 2001 )

United States v. Jose v. Andrade, Jr. , 135 F.3d 104 ( 1998 )

United States v. Starks , 157 F.3d 833 ( 1998 )

United States v. Joseph Lussier , 929 F.2d 25 ( 1991 )

United States v. Walter P. Mann III , 884 F.2d 532 ( 1989 )

Phillip T. Rea and Judy Rea v. Wichita Mortgage Corporation ... , 747 F.2d 567 ( 1984 )

U.S.A. Ex Rel. Lolita Saroop v. Jesus A. Garcia. Lolita ... , 109 F.3d 165 ( 1997 )

Michael J. MARKOWSKI, Petitioner, v. SECURITIES AND ... , 34 F.3d 99 ( 1994 )

United States v. Jerry Fawaz , 881 F.2d 259 ( 1989 )

United States v. Gary W. Barnett , 945 F.2d 1296 ( 1991 )

American Surety Co. v. Sullivan , 7 F.2d 605 ( 1925 )

United States v. Jacqueline Allen, Clare Grady, Dean Hammer,... , 760 F.2d 447 ( 1985 )

united-states-v-sister-anne-montgomery-per-ingmar-herngren-patrick , 772 F.2d 733 ( 1985 )

United States v. Robert W. Flitcraft and Rebecca A. ... , 803 F.2d 184 ( 1986 )

United States v. Arnold W. Hilgeford , 7 F.3d 1340 ( 1993 )

United States v. William J. Benson , 957 F.2d 301 ( 1992 )

Gramercy Mills, Inc., and Cross-Appellee v. Myron Wolens, ... , 63 F.3d 569 ( 1995 )

United States v. John Monteleone , 804 F.2d 1004 ( 1986 )

United States v. Ruben Pulido , 69 F.3d 192 ( 1995 )

Emanuel Friedrich v. Jeana Michele Friedrich, David Harper ... , 78 F.3d 1060 ( 1996 )

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