*1 America, STATES of UNITED
Plaintiff-Appellee, KURKA, Joseph
Ronald
Defendant-Appellant. America,
UNITED STATES
Plaintiff-Appellee, COMBS, Lee
David
Defendant-Appellant. 86-3064, 86-3065.
Nos. Appeals, Court of
Ninth Circuit.
Argued Nov. and Submitted June
Decided Or., Bachers, Eugene, D.
Marianne Lerner, Portland, Or., for defend- Kenneth ant-appellant Kurka.
1428 Or., Eugene, Phillips, crime,
Michael V. for de- an essential element of the it then fendant-appellant Combs. was essential that both the indictment and jury instructions included that element. Sutherland, Or., Eugene,
James L. for plaintiff-appellee. II. INTERPRETATION OF 18
U.S.C. 33§ September On a grand jury indicted Kurka and Combs under 18 U.S.C. ANDERSON, Before and HUG states, 33 and 2. 18 U.S.C. 33 §§ § CANBY, Judges. Circuit pertinent part: HUG, Judge: Circuit Destruction Motor Vehicles or Motor convicted, Appellant Combs was under Vehicle Facilities (1982), criminal statute U.S.C. § Whoever willfully, with intent to endan- damaged, having disregard with reckless ger the safety any person on board or life, safety for the human motor ve- anyone he who believes will board the hicle in Appellant interstate commerce. same, or with a disregard convicted, Kurka was under 18 U.S.C. § life, safety damages, of human dis- (1982), having aided abetted Combs ables, destroys, tampers with violating 33. dispositive 18 U.S.C. The § used, motor vehicle is operated, presented on appeal issue “will- whether employed in interstate or com- ful” vehicles an essen- merce ... shall be fined not more than proscribed by tial element of the crime $10,000 imprisoned not more than U.S.C. The indictment did not § twenty years, or both. the vehicle been The indictment read as follows: done and the instructions to the jury require finding did not such a in order On or August about in the Dis- to convict defendants. Oregon, We hold that trict of RONALD JOSEPH willful to a motor vehicle is an KURKA and DAVID LEE COMBS de- proscribed herein, did, essential element of the crime fendants awith reckless dis- and, therefore, by 18 U.S.C. regard safety life, we re- for the of human dam- judgment vehicle, verse the both age conviction for a motor bus defendants. Greyhound Corporation, being then
operated, in interstate Portland, Oregon commerce from to San I. FACTS Francisco, by firing California two rifle presented by The evidence the Govern- bus; at all shots said violation Title Combs, ment was .that Kurka and after a Code, Sections 33 and party, carrying passen- beer followed a bus gers in interstate commerce. Kurka was The above indictment omits the word the driver and passenger Combs was the “willfully.” appellants moved to dis- pickup Kurka’s truck. Combs took a rifle ground miss the indictment on the that it gun from the rack of the truck and fired allege to the bus the rifle at the on two separate bus occa- willfully. was inflicted The motion was sions, hitting the bus both times. given by denied. The jury instructions convincing Government introduced judge district also omitted the element of evidence that Combs had at shot the bus willfulness. and, aid, damaged willfully. Kurka’s However, it is fatal to a if question presented conviction all of is whether a statute, the elements of a crime have not been can be convicted under the he, jury on if disregard instructed those with reckless for the elements, regardless life, merely damaged of human has adduced. a motor Thus, vehicle, he, if vehicle is whether with reckless dis- board; (2) will be on if will- believes he for the
regard fully damaged a vehicle in com- damaged motor vehicle. disregard a reckless for human our attention merce with been called to No cases have Thus, issue, nor have we discov- Government would have that discuss that first, prove, willfully damaged he any. ered *3 vehicle, prove and also that he either inten- Language tionally endangered persons A. the Statute on board or of disregard safety a for the of reckless language used We first look to the actual life. human grammatical construction and the statute. Interpretation 3. Government’s Interpretation The Government reads the statute as Magistrate’s
1. follows: magistrate, of The recommendation the (willfully, to Whoever with the intent adopted by the district court which safety person the endanger any of on dismiss, to stated: denying the motion anyone he board or believes will board charges defend- indictment same,) (with or disregard the a reckless disregard for acted with reckless ants life,) safety damages for the of human safety human life and therefore the of any op- motor vehicle which is ... of 18 charges a violation sufficiently erated, or in interstate com- fact, a 33. In willful action U.S.C. § ____ merce inconsistent action seem a reckless Defendant's motion to dis- definition. its brief to Government seems miss ... should be denied. point argue at one that the word “willful- inconsistent, are mental states not two “endanger ly” safety any modifies the of however, willful intent relates because the person merely and thus a ...” is redundant vehicle, to and the reck- damage to the endanger of to expression the intent to the risk to human lessness relates safety any person. Grammatically, such Congress to It is not at all inconsistent for possible. is If “will- this construction not required a willful intent to have modify “endanger” to fully” were would damages act a before an the vehicle provide “willfully endangers.” to have ... endangers recklessly hu- motor vehicle and Therefore, only way statute punished by years man life can be grammatically, be read as bracketed could prison. above, “willfully” modifying the is with Appellants’Interpretation this con- vehicle. Under struction, clause, which would re- the first interpretation of the statute can be This endanger quire an actual intent to the safe- readily seen the insertion of brack- more board, ty require also of those on would ets: vehicle; whereas, damage to the “willful” (with willfully, the intent to en- Whoever clause, requires only a the second which safety any person danger the on board life, disregard for human would reckless anyone he believes will board the or only damage the vehicle and not require same, disregard a for or with reckless would be a most damage. This life,) safety damages human result, greater threat to peculiar where the used, operat- any motor vehicle which is “intent,” life, require would willful human ed, employed in interstate or or vehicle, lesser threat commerce____ life, “reckless,” require would to human statute, interpretation this Under not “will- vehicle and urged by appellants, person damage. ful” (1) willfully if he would violate the statute sec- symmetry An examination commerce damaged a vehicle apparent that the Govern- safety 33 makes it endanger the tion intent to with the the intended interpretation was not anyone he ment’s any or who person on board Willfully construction of the statute. Section 33 opera- disables driver or set forth in as follows: vehicle, full tor such a “with like in- tent.” motor 33. Destruction vehicles or vehicle facilities If the require did not with intent to en- plus willful pre- the vehicle any danger on board scribed intent of intentionally or recklessly anyone he who believes will board the endangering phrase then the same, or disregard “with like intent” in the succeeding two life, damages, of human dis- paragraphs point no reference ables, destroys, tampers with, places meaningless. and would be apparent It is placed explosive or causes phrase “with like intent” refers to in, upon, other destructive substance the threat to human life mentioned in the *4 to,
in any proximity motor vehicle which paragraph. first or in operated, inter- commerce, foreign cargo state or or its Legislative B. History or intended material used or to be used legislative history confirms that its operation; connection with or “willful” to the vehicle is an essen- intent, Whoever with like tial element of the original crime. The damages, disables, to, destroys, sets fire Senate was designed bill to deal with will- with, tampers places or or causes to be ful damage to or aircraft aircraft facilities. placed any explosive or other destructive 1472, 8, Report, See Senate No. Feb. in, upon, proximity any substance or in to (To 2972). accompany S. The House bill terminal, structure, garage, supply, or included “willful” to motor ve- facility of, operation used or in hicles or motor vehicle facilities. See of, support operation motor ve- Report 1895, 15, (To House No. Mar. engaged hicles interstate or accompany 319), Cong. H.R. U.S.Code & commerce or makes otherwise or causes 1956, p. Admin.News pro- Both bills unworkable, property such to be made only scribed “willful” conduct. The House unusable, use; or hazardous to work or then amended S. 2972 and it was sent to the Conference Committee of the two Whoever, intent, like dis- wording Houses. The final of the statute incapacitates ables or any per- driver or developed by was the Conference Commit- son employed in op- connection with the point tee. at this wording was eration or maintenance of the motor ve- 33, of section here in hicle, any or in way ability lessens the issue, developed. Every provi- was other perform such to his duties as sion of pertaining the Act such; or proscribed aircraft or motor vehicles willfully attempts to do any Nothing “willful” conduct. in the Confer- of the aforesaid be acts—shall fined not Report depar- ence indicates intended $10,000 imprisoned more than not ture requirement from the twenty more than years, or both. throughout the Act. There nois indication 18 U.S.C. 33. relating in the one instance to to motor vehicles that pattern “recklessness” would the section is to punish a enough for a violation. person who See Conference 2287, 8, (To Report accompa- June No. 1. Willfully damages a motor vehicle in 2972), ny Cong. S. U.S.Code & Admin.News commerce, pre- with the 1956, 3145, pp. scribed intentionally intent of recklessly endangering human III. DEFECTIVE INDICTMENT 2. Willfully damages facility charge used in The indictment to failed
interstate commerce
“with like in-
vehicle
tent” or
it
an
“willful” and thus
introducing
testimony by
The Sixth
certain
of the crime.
from
Offi-
essential element
cer
Gorman
Gorman.
related
Combs
requires that a defendant be
Amendment
that,
stated to him
while Combs was
and cause of the
of “the nature
informed
bus,
shooting at the
Kurka had told Combs
has
Supreme
Court
stat-
accusation.”
it! Shoot it!” Kurka did
“Shoot
not
protections
which an
ed that one
to exclude all Combs’s
seek
statements
guarantee is
intended to
mea-
indictment is
sought
par-
but
to exclude this
Gorman
by
the indictment contains
sured
“whether
ticularly damaging statement. Neither de-
the offense intended to be
the elements of
by
fendant testified. The statements made
apprises the de-
sufficiently
each
interviews with Officer Gorman
prepared
he must be
fendant
what
brought
testimony
were
out in
Officer
v. United
meet.” Russell
Gorman. The district court instructed the
L.Ed.2d 240
82 S.Ct.
testimony
regarding
jury that
“[t]he
(1962). We
held that “the indictment
have
statements made
each Defendant should
allege
the elements
the offense
only against
be considered
that Defendant
facts which inform the
charged and the
or which
which made the statement
is al-
specific
offense with
defendant of
made the
leged
statement. You
charged.”
which he is
you
may
deciding
not consider when
are
(9th Cir.1985).
Lane,
proven
whether or not the Government has
include the element of will-
The failure to
beyond a reasonable doubt that the other
*5
renders the indictment consti-
fulness thus
has committed the crime.”
Defendant
A
tutionally defective.
correct citation to
properly
statement was
admit
compensate
the statute is not sufficient to
against
part
as
of his
ted
Combs
confes
v. Housewright,
for the exclusion. Givens
sion.
issue whether the admission
1378,
(9th Cir.1986);
1381
F.2d
United
786
rights
of this statement violated Kurka’s
as
1415,
(9th
727
1418-19
Rojo,
v.
F.2d
States
secured
the Confrontation Clause of the
Cir.1983).
Sixth Amendment.
In Bruton v. United
distinguishable
This case is
from United States,
123,
1620,
391
88
U.S.
S.Ct.
20
(9th Cir.1987),
view was
months after the
judge
district
concluded that
the risk
Kurka contended that he was enti
faulty
great
recollection was not
because
tled
an intoxication instruction. Kurka
likely
something
this would not
be
Combs
2,1
was convicted under 18 U.S.C.
of aid
§
forget.
It is with the fourth factor
ing
abetting
Combs
his violation of
most
we
concern.
18 U.S.C. 33. Because an aider and abet
§
punished
principal,
tor is
as
“the
case,
Since the time
trial
this
—
encompass
the same elements as
Illinois,
Supreme Court decided Lee v.
required
would be
to convict
other
-,U.S.
S.Ct.
L.Ed.2d 514
principal.”-
Hernandez
United
(1986),
light
which sheds further
on this
(1962).
Since we
hold
factor. The Court stated:
opinion
this
that willfulness is an element
danger
type
true
inherent in this
required
proved
to be
under 18 U.S.C. §
fact,
hearsay
reliability.
its selective
this
specific
makes U.S.C. 33 a
intent
consistently recognized,
As we have
Kurka,
abettor,
crime.
as an aider and
presumptive-
codefendant’s confession is
must also
shown to have shared in the
ly
detailing
unreliable
passages
as
willfulness of
principal,
Combs. Her
or culpability
defendant’s conduct
be-
nandez,
great justify admission of the statement. paragraph The first U.S.C. 33§ We also conclude that statement disjunctive read in the should be and as quite damaging and could not be harm creating separate quite two distinct beyond doubt, acts, less prohibited requiring proof reasonable within the one of will- b) 1. 18 U.S.C. 2 states: causes an act to be done a) directly performed against which if him another Whoever commits an offense aids, abets, counsels, against United States or mands, com- would be an offense United commission, procures induces punishable principal. its as a punishable principal. as a requiring the other fulness and meaning and disregard.
of reckless re- plain. We are seem
facial structure of a statute their give words
quired to meaning, unless everyday
ordinary and special meaning.
Congress prescribes Riddell,
See, e.g., Malat (1966). It seems L.Ed.2d
S.Ct. engage in the unnecessary to to be
to me performed by gymnastics
grammatical just result a correct and to reach
majority
in this case. act is direct- separate prohibited safety of willfully endangering the
ed to pro- The second
anyone on the bus. board damaging a bus with
hibited act is disregard for the part of the The first the individual directed at
speaks of action to action direct- speaking second is bus, may have the
ed toward endangering the of those
effect certainly free to Congress was
on board. qualities of mens rea
adopt different separate and distinct acts.
these charged in properly defendants were by reckless with violation
the indictment part para-
disregard of the second instructed, and so jury
graph, ample evidence more than
there was jury verdict.
support the *7 WOOL, Plaintiff-Appellant,
Howard INCORPORAT
TANDEM COMPUTERS Marshall, Henry ED, Mor V. Robert C. Treybig, Defendants-
gan, and James G.
Appellees.
No. 85-2674. Appeals, Court
Ninth Circuit. Dec.
Argued Submitted 3, 1987.
Decided June