ready please the court counsel after a drunk driving crash charles cross was charged in federal court with two separate offenses this appeal presents two issues as to the one count that was left at the time the case went to the jury and that offense was willful destruction of government property under eighteen u s c section thirteen sixty one the today or whether the district court erred in not instructing the jury on an element of thirteen sixty one which would have required that the government prove that the defendant knew the destroyed property was the property of the government and the second issue is whether the evidence was sufficient on that remaining count thirteen sixty one that was left now the defense the appellant regardless of how this court rules on the jury instruction issue that the evidence was insufficient to support the conviction and so i'd like to focus on the evidence that actually was presented at trial to show that there wasn't sufficient evidence to support the three hundred sixty one conviction just to set the scene this was the kind of trial that relied a lot on accident presentation of the evidence there was a police officer the testified  september of two thousand and fourteen he came across a completely destroyed car in a cornfield in lakeville minnesota and that the damage to the car was so severe he was concerned that the driver or a passenger had been killed or injured the police officer came across the appellant in this case charles cross when he came to the scene with a tow truck to have his vehicle towed the officer saw five to six hours after the crash clear signs of intoxication a portable breath test showed a point zero four b a c which was half the legal limit to drive the officer saw signs of intoxication such as slurred speech and bloodshot eyes and then mr cross was interviewed by that officer at trial the defense sought and received an instruction that this willfulness argument that this case that required proof of willful damage of government property that mr kraus if the he she could show he did not form the intent of voluntary intoxication defense that the jury should find him not guilty and so the the crux of the defen evidence at trial about to prove that intoxication defense was the testimony of a toxicologist who testified by extrapolating backward that at the very least mr cross has blood alcohol content at the time of the crash was four times the legal limit to drive in minnesota point two five and the evidence showed that the government got the benefit of the doubt that that extrapolation could possibly have shown a much higher blood alcohol content so we start with the idea that willful damage to government property at in the middle of the night in the dark on a runway in lakeville was supported the defense was supported by signs of severe intoxication now it wasn't just the intoxication defense that was present there was a lot of corroborating evidence about the defendant's actions that evening in about what happened the next morning and about people that actually saw him visibly intoxicated there was the testimony of a woman that saw him in a bar the night before that his was slumped that he was so intoxicated that she thought he was drunk that he would drive and she asked him to go home because she was concerned about how intoxicated he was counsel you know you're highlighting the evidence and i understand why  but we do have evidence that even though he was drunk i mean really drunk he did some things that show some rationality he called his mom and you know waved her down with his cell phone and and had the presence of mind to know exactly where he crashed the next morning and go back to the scene and so i guess my question for you is didn't the jury have a knopf i mean it's circumstantial to be sure but then they have enough to reach the conclusion that he could have formed the intent the night before based on these rational actions that happened around the time of the crash i believe that your your cure correctly characterizing the government's argument about as you say rational actions about what he was capable of doing following the crap but at the same time the same sort of intoxication evidence about how he was behaving his mother's evidence about him passing out consistently when she was driving him home about his ability to make the phone call to her may be evidence of being able to take willful acts to be able to do the things to get himself home but i think it's a wholly separate calculus than the willful desire desire to damage government property and i guess let me just say this you're correct that all those actions happened but when they're combined with the objective evidence at the scene about how the crash occurred this runway had straight in i will say this the parties disputed the exact same facts and cast them differently in front of the jury and they were arguing it but the argument that the defense made was that those street tracks off of the end of the runway after continued street in the the car flipping over in crashing into the cornfield was objective evidence that at the time the crash happened which is more important than what happened after the phone call was made in the evening because the intent at the time of the crash matters show that he was so intoxicated he actually just didn't know what he had hit because let me let me let me follow up you know i don't know what i would have done as a juror i mean i think what happened maybe was he wanted to eat to be cool to drive as fast he could down the runway and he just ended up getting a tattoo that he wasn't actually aiming for the antenna but he just got really drunk and got to be funded to drive fast but what a jury call there was enough evidence that sort of figure out there was enough contemporaneous evidence from afterwards to say well he could afford that kind maybe hey you know one of the was bad the government was mad at something that will at the lakeville airport he wanted to hit the end and he wanted to do some damage is there enough there to make that a jury call i think the answer is no you and here's why the you're correct well let me back up and say that the theory that you just put out there was a theory that actually showed up at trial because one of the government's witnesses had written an e mail that said after inspecting it he was an  person that it sure looked like someone had gone out on a joint writer of speed the answer to your question about wasn't there enough for the jury is that if the evidence points both ways equally and i think that it did that is not proof beyond a reasonable doubt it's persuasion the jury has to be persuaded but there's still a legal standard in place that supported by the constitution that has to be proof beyond a reasonable doubt and what i think the trial record which i think the parties have done a good job translating into the  record is that there was so much evidence on both sides and when there is an intoxication defense that was perfected and put into evidence at best the jury had two competing stories one never rising over the other and in a sufficiency of the evidence argument there it has to still be proved beyond a reasonable doubt and when that's combined with the i guess the sort of tapestry of other evidence that was included which included the defendant's own testimony his own testimony about his intent in granite his memory was not good because of the blackout drunk state that he was in and the lack of motive i mean that's the probably the most important thing here is this kind of damage because there was a self interest in keeping the car that he had mortgaged or he had a loan on with his father in good condition he had an entire flight career that went down the drain when it's combined with the the lack of a motive to do it he had there was no evidence put forward that he had any problems flight school there was no evidence put forward that he had any issues with the f a a or the wakefield airport he admitted that he done touching goes there and i'll just as a side note there was this potential theory that he was somebody who had committed mischief in the airport at the airport but that was debunked by the f b i agent who followed up and did some things when all of those things are combined with a lack of motive certainly the jury has the right to try to sort out these two competing theories but when they match equivalently in quantum that is not proof beyond a reasonable doubt  aviation training and knowledgeable about things that exist at airports and rail runways and a couple that with the fact that this was not a situation where a vehicle simply bears off of the highway for example and  mind for two reasons your honor one is that getting to the airfield the the willful actions of getting to the airfield are just as consistent with somebody going on a joy ride as judged ross indicated  speeding on the on the runway it's a long flat space and to access the runway i think is a different thing than willful intent to damage the array and the second part i would indicate is that evidence came out at is not some that is not those are not the actions of someone trying to destroy something and get away with it those are the actions of someone who doesn't understand what he hit and nearly kills himself in a drunk driving accident afterward his own testimony referred to that and as i understand it he admitted to lying the investigators regarding what happened is that another factor the jury if you're just talking about credibility yes and they they see him admitting to i look up trying to cover it up absolutely but you know i'll step forward and say the quantum of evidence is balanced again because he is clearly afraid of getting a dui or possibly a state charge of damaging government property but a dui is something that is is just as concerning in terms of criminal liability for him as anything else in something that he at that point it's what's on his mind because he knows he's been drinking and he knows there's a vehicle in the field that's registered to him and so the cover up and i admit that he he admitted on cross examination that he lied that is just as indicative of being afraid of legal consequences separate in that from this charge as it is from anything else and doesn't retroactively change what his intent was the point is in balancing the evidence that's not proof beyond a reasonable doubt from a quantum point of view i see that i'm well into my rebuttal time and i will have one thing to think about as addressing the legal argument s while the statutory interpretation issue could upset i think that's a very interesting issue i think you're good morning may it please the court counsel my name is john daugherty i'm an assistant u s attorney here in the district of minnesota i prosecuted this case at trial and it's my privilege to represent the united states here this morning  i will begin with the issue that judge strauss finds interesting which is the issue of statutory interpretation your honor is it is simply not an element of the crime of destroying government property that the defendant know that the property he destroyed was owned by the united states and this court in the banner case the only authority relied upon by defendant for his claim did not add that element to the elements of a thirteen sixty one case this should be a fairly straightforward issue it is a question of statutory interpretation is just ross pointed out and so we begin with the plain text of the statute itself and eighteen u s c thirteen sixty one simply doesn't say anything about the defendant needing to know that the destroyed property is property of the government of the united states council on the on the plain language argument there's a canon a longstanding criminal law can this brings me back to my days of teaching criminal law that when you have a mens rea at the beginning you know that sometimes you carry it through the entire statute to each of the elements particularly when you when a particular element would would separate the the legality from the non legal act and it's a little bit of a bizarre instruction that was given on willfully because it says if you do it voluntarily and intentionally with knowledge and if you pull willfully through you couldn't make  argument that knowledge the knowledge part of that instruction at patches to property of the united states i'm wondering what the what the united states is responses to that i respectfully disagree with there i understand the canon of construction i understand the point you're making however the willfully was the find by judge carlisle in jury instruction number seven has as you say voluntarily and with knowledge and that means from the context of the other instructions with knowledge that one's behavior is violating the law and the case that we relied upon or that we brought to judge kyle's attention a lot on that point was a seventh circuit case united states was his girl for where he talks about under what circumstances can one assume that a person knows they are violating the law and under what circumstances do we need to impart knowledge because knowledge is necessary to separate innocent from criminal conduct  the seventh circuit in the erfurt case which also involved ironically the destruction of government radio antenna rays different times for different uses so that it's obvious that destroying property that doesn't belong to you violates the law you don't need to cite the title in the section of the law that you're violating but it is believe the word was mala in se to use some latin and that that is though that is the knowledge that i believe goes in and that response your question right and that supports your argument because the fact of the matter is intentionally destroying someone else's property whether it's u s government property or dock is malum and say and so your argument would be you don't need to know it's united states property under the under the instruction given that is correct and i would also add that banner does not change the change the landscape on that bangor does talk about bangor in the defendant bangerz knowledge that the flag that he burned was property of the united states but that is in the context of a very fact specific and fact intensive analysis of the sufficiency of the evidence on the point of will banger testimony which starts i think about thirteen page thirteen or two of the of the opinion was that he had gone to this demonstration against u s policy towards iran on the campus of washington university that someone else there had taken a flag out of a plastic bag and that yes he had participated in blowing it it didn't say so explicitly in the opinion but that testimony is amenable to the construction of the banger thought he was burning a flag with the consent of its owner and that of course would not be against the law that and therefore would not be willful under the way that i believe that willful ought to be used in this context it was important to show that bangers and in fact participated in taking the flag down from federal building a fifteen twenty market street in st louis ironically a block or so from the eagleton courthouse and that there were three witnesses would seen him do it and that therefore he knew that this was not a flag that was being burned with the consent of the owner because he knew it was a flag that was the property of the united states and i also think that in bangor it is interesting what the what this court did which was a from the conviction if bang it is saying their knowledge of ownership is an element of the crime we know because in the twenty eight j we provided the court with the indictment and with the jury instructions from behavior so we know that that jury was not instructed on this element if this court had found as the defense i think position is that banger found knowledge of ownership to be an element and if the jury in bangor had not been instructed on this element i cannot come up with a way that this court could have affirmed the convictions in bangor so i would say that the better rule here is that set forth in the report or in the few all the cases that are cited in our brief which is that in this context knowledge of ownership is not an element of the offense that that distinguishes it because destroying other people's property is mala in say that that distinguishes it from situations such as title eighteen u s c fourteen seventy which is transmitting obscene material to a minor the defendant must know that the person whom they are sending the obscene material is a minor because of course sending even sexually explicit material between consenting adults is not a crime and therefore knowledge is needed in that sort of context all the things that mr all i got a presented to this court this morning he presented to the jury in this case in his final argument intoxication maybe you could if you really look at why with this fellow with everything on the do this there's really just no no reason why i go and risk his future apparently no the damage that was done to the car but i believe it important to remember and that's used to say look he crashed he nearly you know he nearly got badly injured he he lost everything because of course the crash car was found by law enforcement but i think it's important to remember that the crashed car was caused not by the impact with the localizer antenna already it was caused about two hundred eighty feet later when the car hit the ditch bordering high had that ditch not been there he would have driven on to high view avenue to turn left and right and gone on to his destination so the harm the physical harm the legal harm that mr kraus was exposed to as a result of this  is not a result of hitting the antenna array and government exhibits one through nineteen which are photographs of the array taken the morning after and you can see the tire tracks because the do is still on the grass it comes off the end of that runway it goes two hundred seventy feet it hits that a ray mech in the middle and then it continues dead straight for mr nagle from the f a a testified that it was about two hundred eighty feet on words to the road it continues dead straight i agree that i don't know why he did it but it is not an element of the offense that we prove why he did it is an element of the offense that would prove that he did it and that he did that willfully and that we may just have hit that he did you know as you sort of relay it he may have but the guy i'm going out to the next street i'm going to this has been fun i got to go over pass one hundred miles an hour down the runway he may have had no interest in hitting it intentionally destroying that antenna it just appropriate backwards look at what the jury in this particular case did they had all that evidence they also had the evidence that this as you pointed out in questioning mr all of this is not just a private pilot it's an instrument rated private pilot this machinery this electronic array is something that he uses this is an airport where he's practiced touch and go landings in small four miles from his house and then forming his mother directing his mother to the scene by reference to a particular light recognizing the distinctive pattern of headlights and running lights on his father's van annoying therefore that this is his mother approaching with respect i do not agree that the record shows that he passed out in the car on the ride home his mother's testimony of the ride home just three sixteen to three seventeen and it is that when he got home he wanted to go to sleep and she would not permit that she wanted him to drink fluids and then the other thing that i do want to say on the point of will defendant's mendacity because i did that was not that that was introduced in part for the classical reason of if the defendant is not telling the truth he ought not to be believed but it was  mendacity of a particular sort it was purpose of and it was goal oriented and let me if i made give the court one example at trial mr kraus was asked a series of questions do you remember where you were in the morning to remember where you were in the afternoon do you remember where you drank the night before and to the question do you remember where you drank the night before he said no he did not however he also testified that he had lied to the police and interestingly one of the lies he told to the police was i wasn't drinking at this bowling alley in lakeville minnesota i was drinking at a buddy's house and he gave the officer or landmark a particular chevrolet dealership that the b house was close to he testified at trial that he had told that lie to the officer in order to protect the bowling alley because his grandparents lived across the street from it he visited there many times he felt he needed to protect them but if he's saying at trial he doesn't remember where he was the night before and if the only people he's interacted with between hitting the localizer antenna array and telling that light of the police his mother the tow truck driver and the police officer then who told him where he had been the night before and that's the sort of as i say purpose of goal oriented thoughtful l that are indicative not just of a lack of credibility in the depend on the fandoms part but also of an ability to commit a specific intent crime charles cross was drunk when he hit that in ten nobody argued one word to the contrary in that trial but as i said in closing and as i say again today the record evidence shows and the jury was entitle to conclude in this court of firm using the well known standard by which this court reviews the jury's verdict with charles kraus was not not so drunk that he could not form the specific intent to do the crime of which he was committed if there are any questions i'm happy to respond otherwise i will wrap up a minute early thank you all very much thank you your honor judge trust i think you're correct that the canons of statutory construction provide this particular statute thirteen sixty one that the word willful modifies both injures which is the relative the relevant word here in the proper united states i think that the statute mean we can speculate about what congress was thinking but that the statute was intended to punish people who specifically knew they were damaging government property now there are two problems with that attaching willfully to property of the united states doesn't make any sense at willfully property of the united states that doesn't make any sense whereas knowing if knowing that it's proper the united states would make sense that's your first problem the second problem is this is a jurisdictional element or an attendant circumstance and it's like at night in a burglary you don't us we have to know it's at night it just has to be at night and so i'm wondering what your response is sort of those two weaknesses in the argument are sure let me answer the jurisdictional fact  you know the only thing that i can say is this is not a particularly well developed there's not well developed case law around the statute there are certainly other federal statutes that have what we could call a truce external fact but the case law cited for that support  deals with completely separate statute six forty one and assault on a federal officer and so while there are federal statutes to do it i don't have an answer as to why this wasn't more clearly drafted as to that point which gets to your second point willfully i concede that it doesn't syntactically agree with the rest of it but the phrases are so close to each other in the statute and the again the policy reasons why you would punish somebody for destroying government property without the knowledge that it's government property it's jurisdictional but it seems like there's a reason to do it and bangor which is this circuit's case i understand the argument that the jury instructions in bangor didn't have this element in them we should not let the tail wag the dog the fact is it was a sufficiency of the evidence case and in three separate locations on the same page of the decision this court said for sufficiency of the evidence purposes these defendants had to know that the flag was federal property that is as clear as it can be there's only one circuit decision in a separate circuit that disagrees your left from a star decisis point of view with a case that directs you how to rule on this element let me make one final note about facts high the road was at the end of the