The opinion
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.