Lead Opinion
Opinion by Judge SCHWARZER; Dissent by Judge Fletcher.
R.S.W., а young Indian person on the Northern Cheyenne Indian Reservation, was found guilty of juvenile delinquency pursuant to 18 U.S.C. § 5032 after a bench trial in the district court for having committed arson in violation of 18 U.S.C. §§ 81 and 1153. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm but on a ground different from that relied on by the district court.
I.
On February 12, 1996, at approximately 10 a.m., a fire occurred at the Morning Star School in Lame Deer on the Northern Cheyenne Indian Reservation in Montana. It caused extensive damage to the building but no one was injured. R.S.W. at that time was twelve years old and in the seventh grade.
Prior tо the fire, R.S.W. and a friend went into the girls restroom of the school. Two automatic paper towel dispensers, designed to dispense one paper towel sheet at a time, were located on a privacy partition inside the restroom. As the girls talked, R.S.W. began playing with a lighter she had with her. According to her testimony at trial, first she lit one corner of a paper towel from one of the dispensers. She let the towel burn for a few seconds, then blew out the flame and put the burned towel in the sink. She then returned to the paper towel dispenser and lit the left corner of another towel protruding from it. She let the flame burn for a second
The district court found that R.S.W. “knew what she was doing when she lit the paper towel” and “knew the likely result of her conduct would damage the school.” It concluded that “the United States had proven beyond a reasonable doubt that the defendant intended to set fire to or burn the Lame Deer High School since she was aware that an unattended fire in a building can result in the building burning.” As a result, the district court found R.S.W. guilty and sentenced her to five years probation.
II.
The question presented by this appeal is what mens rea is required to be proved to establish a violation of the federal arson statute, 18 U.S.C. § 81.
Section 81 makes it an offense to “willfully and maliciously set[ ] fire to or burn a building.” Prior interpretations of “willfully” are not necessarily binding or helpful, for as the Supreme Court has noted, “ ‘[wjillful,’ ... is a “word of many meanings,’ and ‘its constmction [is] often ... influenced by its context.’ ” Ratzlaf v. United States,
The legislative history of § 81 is silent as to the intended meaning of “willfully and maliciously.” In the absence of any indication to the contrary, we must assume that when Congress adopted the common law definition of the crime of arson-the willful and malicious burning of a building-it intended to adopt the meaning that common law gave that phrase.
At common law, thеrefore, arson did not require proof of an intent to burn down a building, or of knowledge this would be the probable consequence of the defendant’s act. The elements of willfulness and maliciousness are established by proof that the defendant set the fire intentionally and without justification or lawful excuse.
We are aware of only one federal appellate decision that has addressed the mens rea requirement under § 81. In United States v. M.W.,
III.
We turn then to the facts. The district court’s findings of fact are reviewed for clear error. United States v. Kohli,
The district court found that R.S.W. set fire to the paper towel intentionally: “she knew what she was doing when she lit the paper towel.” This evidence-R.S.W.’s own testimony-is undisputed. There is no suggestion that the fire started as a result of accident or negligence. The finding is not clearly erroneous.
The court went on to find that R.S.W. knew the likely result of her conduct would damage the school. Given that common law arson is a general intent crime, that finding is surplusage. Even if the district court acted under an erroneous assumption with respect to the requisite mens rea, its undisputed findings establish that R.S.W. intentionally, and without justification, set fire to a paper towel in a dispenser attached to a partition in the building. Those findings suffice to support the conviction.
“Normally a judgment will not be reversed where a proper result is reached on the basis of а wrong reason, provided that the defendant suffered no prejudice.” United States v. Castillo-Felix,
AFFIRMED.
Notes
. The statute provides:
Whoever, within the special maritime and territorial jurisdiction of the United States, willfully and maliciously sets fire to or bums, or attempts to set fire to or burn any building, structure or vessel, any machinery or building materials or supplies, military or naval stores, munitions of war, or any structural aids or appliances for navigation or shipping, shall be fined under this tide or imprisoned not more than five years, or both.
If the building be a dwelling or if the life of any person be placed in jeopardy, he shall be imprisoned for not more than 25 years, fined the greater of the fine under this title or the cost of repairing or replacing any property that is damaged or destroyed, or both.
18 U.S.C. § 81 (West Supp.1997).
. See Curtis' Treatise on the Law of Arson § 57 (1936) ("The common law definition of arson-the willful and malicious burning of the property of another-imports two mental elements: willfulness and malice.”).
. The dissent agrees that arson at common law is a general intent crime and that willfulness is established by proof that the defendant set the fire intentionally. Dissent at 638-39. While the dissent concedes specific intent is not required, it inexplicably propounds a standard indistinguishable from specific intent, i.e., requiring an intent to bum down the building. Further, it never explains-much less cites authority explaining-just what additional proof is required under the common law to establish the elements of arson. Dissеnt at 639-40.
. "An intentional act creating an obvious fire hazard to the dwelling of another, done without justification ... might well be characterized as ‘wilful’ ... and would certainly be malicious, but as the law has developed it is a mistake to assume that the phrase ‘willful and malicious,' when found in the definition of common-law arson, adds some distinct requirement not included in the word ‘malicious’ alone.” Rollin M. Perkins and Ronald N. Boyce, Criminal Law 275 (3d ed.1982); see also John Poulos, The Metamorphosis of the Law of Arson, 51 Mo. L.Rev. 295, 323 (1986).
. We agree with the dissent that an arson conviction based on the burning of a building caused by ' a smoldering cigarette butt tossed into a trash can or by lighted candlеs placed too close to the drapes should probably be set aside on a Rule 29 motion or on appeal on the ground that it was accidental or that the initial fire was set with justification or legal excuse. Dissent at 639. But those hypothetical are distinguishable from the present case which is more analogous to intentionally setting fire' to the drapes and then walking away in the (erroneous) belief that the fire had been blown out. While one can argue that that is a close case for the trier of fact, on that evidence the trier оf fact would be entitled to return a verdict of guilty.
. Florida, Michigan, Mississippi, Nevada, New Mexico, Oklahoma, South Carolina, Vermont, the Virgin Islands, and West Virginia all have statutes employing the terms "willfully and maliciously.” California has arson statutes with two different mens rea: "willfully and maliciously” and recklessly. Although a minority of California Courts of Appeal have concluded that the legislature intended to change the common law mens rea of “willfully and maliciously” to specific intent by criminalizing “reckless arson” as a lesser offense, the majority view supports maintaining the cоmmon law’s general intent mens rea for the higher offense. Compare In re Stonewall F.,
. See, e.g., Commentary to Ky.Rev.Stat. Ann. § 513.020 (Banks-Baldwin 1997).
. For example, Maryland's arson statute contains the terms ''willfully and maliciously" but has been amended to include its own definition of maliciously, which requires specific intent. Md. Code Ann. Art. 27 § 5(c) (1997).
. The district court cited in its conclusions of law the M.W. court's statement that § 81 "includes acts done with the knowledge that burning of a building is the practically certain result____” M.W.,
. The dissent also implicitly rejects M.W.’s reliance on the Model Penal Code by turning to the common law in its analysis. Furthermore, the dissent mistakenly asserts that this opinion "creates a split” with the Tenth Circuit: M.W. did not purport to set forth a bottom line standard for mens rea in arson and its holding does not prevent courts in the Tenth Circuit from.finding a defendant such as R.S.W. guilty under §81.
. See Garcia v. Bunnell,
. This is not a case where .as the result of the trial court's application of the wrong standard, the conviction was not supported by evidence required under the correct standard. Reference to the wrong standard here merely led the court to make surplus findings, in addition to those required for the conviction. Cf. Wilson v. United States,
Dissenting Opinion
Dissenting:
I respectfully dissent-.
Notwithstanding the statutory mens rea requirement that the defendant act “willfully and maliciously,” the majority holds that, under the federal arson statute codified at 18 U.S.C. § 81, the government neеd not prove that the defendant had any intent whatsoever to burn a building, effectively construing the statute as establishing a strict liability offense. Majority at 634. This interpretation runs counter to overwhelming precedent, defies reason and common sense, and creates a split with the only other circuit to interpret § 81.
The majority affirms R.S.W.’s arson conviction under § 81 on a basis different from the one relied upon by the district court. See Majority at 634. The district court followed the interpretation of § 81’s intent requirement of “willfully and maliciously” adopted by the Tenth Circuit in United States v. M.W.,
“Absent evidence to the contrary, it is assumed that every burning is accidental and not the result of criminality. Therefore, the burden is on the prosecutor to show that it was wilful and malicious.” Wharton’s § 337; see also State v. Whisler,
Inexplicably, the majority then concludes, without any citation to authority, that “[a]t common law, therefore, arson did not require proof of an intent to burn down a building, or of knowledge this would be the probable consequence of the defendant’s act.” Majority at 635. This conclusion directly contradicts the authority that the majority cites. It is basic hornbook law that “[t]o constitute arson, there must be an intent to bum a building or other structure, and [the] accused must be consciously aware that his conduct is of such a nature that fire would result.” 6A C.J.S. Arson § 6 (1975); see also Rollin M. Perkins & Ronald N. Bryce, Criminal Law 276-77 (3d ed. 1982) (“[T]he state of mind which constitutes guilt of common law arson ... is either an intent to burn the dwelling of another, or an act done under such circumstances that there is obviously a plain and strong likelihood of such a burning.”).
The majority goes on to state correctly that the intent requirement for arson is met by proof that the defendant set fire to the building “intentionally.” Majority at 635. Unhappily, the majority mistakenly applies that standard, not to the proscribed conduct of setting fire to a building, but to R.S.W.’s mental state toward setting the paper towel aflame. See Majority at 636. In other words, the majority proposes under the mantle of the common law that, to sustain a conviction under § 81, a defendant need not have any criminal intent bearing on the proscribed conduct of burning a building as long as the defendant’s voluntary actions were the cause in fact of the burning.
The majority’s conclusion demonstrates a profound misunderstanding of the common law. As the classic treatise on common law arson explains: “An intent to burn a building may be distinguished from an intent to burn its contents. If it appears that the accused had merely an intent to set fire to the contents, he cannot be convicted under an indict
Modern cases as well continue to follow this rule. See, e.g., Grable v. Varela,
Common sense dictates that an arson conviction requires more than a building burned by a smoldering cigarette butt tossed into a trash can or by lighted candles placed too close to the drapes. Yet, these hypotheticals are indistinguishable from the facts in the instant case.
As recounted by the majority, on the morning of the fire, R.S.W. was playing with a lighter while talking to a friend in the girls restroom at school. After twice lighting and thеn extinguishing the edge of a paper towel protruding from a dispenser attached to a privacy partition inside the restroom, R.S.W.
After leaving the restroom, R.S.W. and her friend purchased a soft drink from a machine located just outside the restroom and then proceeded to wander through the halls of the school. Eventually, they went to and participated in a gym class. R.S.W.’s friend testified that R.S.W. seemed “panicky and scared” in response to the news that the school had to be evacuated on account of a fire originating in the girls restroom. At trial, the Deputy Fire Marshall who investigated the 'case testified that it would have been possible for a flame on the paper towel that had been blown out to reignite if supplied with a new oxygen source, such as the one that could have resulted from opening and closing the door as the girls left the restroom.
Nothing in the record suggests that R.S.W. thought that the smoldering paper towel would reignite and cause a blaze that would ultimately consume the school. R.S.W. and her friend did not run or attempt to hide in anticipation of a fire, or stay and observe whether some type of fire would, in fact, occur. Instead, they purchased a soft drink from a machine located outside the restroom, and then walked the halls of the school before attending a gym class. The girls’ conduct is inconsistent with and clearly does not support the finding that R.S.W. knew that her conduct would result in the school burning down.
The factual finding relied on by the district court to support its conviction of R.S.W. was that she “was awarе that an unattended fire in a building can result in the building burning.” This factual finding, however, does not meet the mens rea of knowledge with “practical certainty” as to the result adopted by the district court from the Tenth Circuit as its standard. In other words, under the district court’s legal standard, R.S.W. could not as a matter of law have been convicted based upon the factual finding it cited as determinative.
The majority selectively quotes a different factual finding than the one relied on by the district court as satisfying the intent requirement of § 81: that R.S.W. “knew the likely result of her conduct would damage the school.” Majority at 636. This finding, however, is not supported by the record. The record certainly shows that R.S.W. demonstrated a serious lack of judgment. She should have known better. She may have even been reckless. But, nothing in the record remotely suggests that she knew that her actions would cause the school to burn down.
The majority appears to acknowledge as much, but then in retreat suggests that even if the district court erred in its finding, “[gjiven that common law arson is a general intent crime, that finding is surplusage.” Majority at 636. The majority is wrong as to the law.
While it is true that common law arson is not a “specific intent” crime, it does not follow that an arson conviction requires nothing more than the lowest form of “general intent.” The phrase “general intent” encompasses many forms of the mental state requirement not designated by “specific intent,” or “purpose.” See Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 3.5(b), (e) (1986); see also United States v. Bailey,
The term of art, “intentional,” on the other hand, as used to describe the common law offense of arson, has traditionally been defined to include both purpose and knowledge, “and thus it is usually said that one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts.” LaFave & Scott § 3.5. Only with this understanding then does it become clear why, as applied to arson, “[mjalice is the deliberate and intentional firing of a building, or other defined structure, as contrasted with an accidental or unintentional ignition thereof.” 6A C.J.S. Arson § 8 (1975).
. The Tenth Circuit in United States v. M.W. derived its construction of § 81 by analyzing under the Model Penal Code two Arizona state cases interpreting an arson statute that similarly included a mens rea of “willfully and maliciously.” See
. It is worth noting as a threshold matter that the majority skims over both textual analysis and reviеw of legislative history in its haste to reach the conclusion that Congress encoded the common law in § 81. Only one sentence is devoted to textual analysis, in which the majority completely ignores the term "maliciously” and selectively quotes a Supreme Court case to support the proposition that interpretations of "willfully” are not binding or helpful. Majority at 634 (citing Ratzlaf v. United States,
. Contrary to the majority’s puzzling assertion, Majority at 635 n. 6, the California Court of Appeals in People v. Fabris held that its arson statute codified a "general intent” crime. See
. The majority vainly attempts to explain away these hypotheticals by suggesting that such fires would be “accidental” or "set with justification or legal excuse." Majority at 635 n. 5. However, these assertions assume the conclusion. Legal excuse or justification is what keeps exploding a building for demolition purposes from constituting arson, and doеs not properly affect analysis of the mens rea. Moreover, intentionally lighting a cigarette is not legally excused or justified, for example, in hospitals and most office buildings and schools, just as it may not be legally excused or justified for a draft protester to bum his draft card at city hall.
Of course, one can commit arson with a cigarette under the right circumstances (e.g., intentionally and with a gallon of gasoline). On the other hand, cigarettes and paper towels, even if intentionally ignited without legal excuse, may cause a fire that ultimately bums down a building through carelessness or negligence. This is not arson. Nothing in the record suggests that the burning in the instant case is any less "accidental."