United States v. Cullen, 454 F.2d 386 (7th Cir. 1971)

STEVENS, Circuit Judge.

For participating with others in the removal and destruction by burning of official records of the Selective Service System in Milwaukee, appellant was convicted of violating 18 U.S.C. § 2071 and 50 App.U.S.C. § 462(a). His principal contention is that the judge should have instructed the jury on his theory of defense; it was his theory that religious compulsion might negate the requisite criminal intent and thereby warrant acquittal. He also contends that the second offense included the first, and that the court’s refusal to ask prospective jurors about their religious beliefs was error.

I.

Appellant was given an unlimited opportunity to present evidence that was even arguably relevant either to the issues or to an understanding of his character and motivation. Several witnesses described his good works and saintly reputation. His own testimony was a two-day autobiographical narrative delivered in response to five or six general questions. The length and content of his responses were curtailed only by the midsession and noon recesses.1

Only fragments of appellant’s testimony made any direct reference to the act of burning draft records. He frankly stated that he knew that his action was unlawful;2 that it had been carefully planned;3 that he sincerely desired

the act to be “nonviolent,” and was convinced that it was for the common good.4

The bulk of his testimony described “the important marks,” which purportedly explained the “compulsion” that motivated his crime. He described his boyhood in Ireland;5 his abortive attempt to become a missionary;6 his education at a Trappist seminary; his emigration to the United States; his heroes;7 his abandonment of profitable employment in the insurance business to organize a shelter for the poor in Milwaukee; and his concern about the ills of society, including the commitment of substantial funds for war purposes when they are so badly needed to help the poor and the victims of discrimination. He explained that a man is “compelled” to live by his conscience:

where it began in my mind.” (Tr. 118)

With respect to the special compulsion that led to the public burning of draft board records, he stated:

He also testified that other standards of behavior must be subordinated to doing “what we know is the right thing for us [and] for the betterment of man.”

For purposes of decision we assume that appellant’s conduct was sincerely motivated by a noble and unselfish purpose.

II.

Appellant’s conduct violated two federal statutes. One prohibits the willful destruction of public records;8 the other the knowing interference with the administration of the Selective Service laws.9 The first offense may be committed without interfering with the administration of the Selective Service System, and the second without destroying any documents. Under the classic test for determining whether he was charged with two offenses or only one, it is clear that neither is included within the other. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306. We are not presented with any double jeopardy, or successive prosecution problem, cf. Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212; United States v. Fusco, 427 F.2d 361 (7th Cir. 1970), but merely with the question whether the indictment charges two separate offenses. We are satisfied that it does.

III.

Both statutory offenses include an element of intent. Appellant’s denial of an unlawful intent was predicated on a religious or perhaps quasi-religious base. He, therefore, requested the trial judge to ask a number of questions of the

prospective jurors relating to their religious beliefs and attitudes toward authority. A review of the record indicates that the judge properly exercised his discretion in not prolonging the voir dire examination as requested by appellant, particularly since some of the proposed questions might have been interpreted as indicating a measure of approval of appellant’s theory of defense, which we believe the district court correctly rejected.

IV.

Appellant’s principal claim is that the district court refused a series of tendered instructions embodying the theory that appellant was compelled by his religious beliefs to act as he did and, therefore, did not have the requisite intent to commit the offenses charged.

The trial judge instructed the jury that the Government was obliged to prove all of the elements of both offenses, including specific intent, which he defined as more than a mere intent to commit an act but as also including a deliberate purpose to violate the law.10 He carefully differentiated between motive and intent:

The instructions proposed by appellant, which the district court refused to give, are exemplified by the following:

Relying on United States v. Vole, 435 F.2d 774 (7th Cir. 1970), appellant contends that he was entitled to have the court explain his theory of defense to the jury. But as Vole plainly states, he has no such right unless his theory has both legal and evidentiary support. See 435 F.2d at 776-777. In this case, appellant’s evidence does not support any acceptable legal theory.

Appellant contends that his evidence of “compulsion” is relevant to the issue of intent. To put this contention in proper perspective, it is appropriate to recognize that the term “intent” may be used in at least three different senses: First, that the prohibited act was performed deliberately; second, that defendant knew it was wrong; and third, that it was designed to further some ultimate goal. In the narrowest sense, every crime must be the product of defendant’s free will; it must reflect his choice to perform the criminal act. If the act itself was the result of a mere reflex, or muscular spasm, or was caused by physical duress or compulsion, even the narrowest intent would be absent and the defendant would be innocent of crime;

indeed, it could be said that he did not act at all. It is in this sense that the traditional defense of “compulsion” or “necessity” may justify an act that would be unlawful if it had reflected a deliberate exercise of the defendant’s free will.12

Appellant’s evidence does not remotely support a contention that his conduct was the product of any such compulsion. Such a characterization would be inconsistent with his own testimony explaining that he was acting in accordance with the dictates of his conscience. The traditional defense is plainly inapplicable here.

In a second sense, the term “intent” encompasses a “consciousness of wrongdoing.” Such knowledge differentiates most crimes from statutory offenses which may be committed “though consciousness of wrongdoing be totally wanting.” See United States v. Dotter-weich, 320 U.S. 277, 284, 64 S.Ct. 134, 138, 88 L.Ed. 48. The Supreme Court’s opinion in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288, on which appellant heavily relies, dealt with the question whether this type of intent was an element of the offense of converting Government property. Mor-issette had admittedly taken three tons of rusted bomb casings from a Government target area, but testified that he believed they had been abandoned. The Government contended, and the lower courts held, that such belief was irrelevant because consciousness of wrongdoing was not an element of the offense defined by 18 U.S.C. § 641. The Supreme Court held to the contrary, distinguishing cases like Dotterweich, United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604, and United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619.

The issue presented by Morissette is not presented here. The Government recognizes, and the judge’s instructions plainly stated, that knowledge of illegality was an element of each of the offenses committed by appellant. He candidly admitted that he had such knowledge. Accordingly, his reliance on Morissette is plainly misplaced.

A third sense in which the term “intent” is sometimes used is that of ultimate purpose or “motive” as -that term was explained in the district court’s instructions. In some situations the defendant’s ultimate objective may be an element of the particular offense charged. Thus, to prove treason, a purpose to give aid and comfort to the enemy must be established;13 to prove a criminal at

tempt an analysis of the defendant’s purpose beyond the overt act actually completed is necessary;14 and to establish some forms of “malice,”15 the reasons why the defendant acted as he did may be critical. In such eases, the prosecution has the burden of proving improper motive and it would, therefore, be entirely proper for a defendant to respond with evidence of good motive. But improper motive is not an element of either of the offenses committed by appellant; accordingly, evidence which merely relates to his good motive does not tend to disprove his admitted consciousness of wrongdoing.

In a case such as this, if the proof discloses that the prohibited act was voluntary, and that the defendant actually knew, or reasonably should have known, that it was a public wrong, the burden of proving the requisite intent has been met; proof of motive, good or bad, has no relevance to that issue.

If defendant’s theory of defense were valid, the character of his conduct would be judged not by the rule of law but by the end which his means were designed to serve. His theory is merely another variety of an age-old argument. If a religious, moral, or political purpose may exculpate illegal behavior, one might commit bigamy to avoid eternal damnation ;16 steal from the rich to give alms to the poor; burn and destroy, not merely public records or perhaps buildings but even public servants as well, to implement a Utopian design.

One who elects to serve mankind by taking the law into his own hands thereby demonstrates his conviction that his own ability to determine policy is superior to democratic decision making.17 Appellant’s professed unselfish motivation, rather than a justification, actually identifies a form of arrogance which organized society cannot tolerate.

A simple rule, reiterated by a peacelov-ing scholar, amply refutes appellant’s arrogant theory of defense: “No man or group is above the law.”18

The judgment is affirmed.