United States v. Kabat

WOLLMAN, Circuit Judge.

The issue in this case is whether a federal prohibition against sabotage, 18 U.S.C. § 2155 (1982), that requires that the accused have acted “with intent to injure, interfere with, or obstruct the national defense of the United States” can be applied against nuclear protestors who intentionally damage missile sites. Carl Kabat, Paul Kabat, Lawrence Jacob Cloud-Morgan, and Martin John Holladay were convicted by jury of sabotage and other crimes for their activities at two Minuteman II missile silos in Missouri, and on appeal they raise lack of intent as well as international law and necessity defenses. We affirm.

Carl and Paul Kabat, Lawrence Cloud-Morgan, and Helen Woodson on November 9, 1984, took a rented jackhammer and compressor plus other tools to “N5,” a U.S. military installation in Missouri housing launch and support facilities for a Minuteman II intercontinental ballistic missile. After cutting the padlock on a perimeter fence, these defendants entered the missile site and used their tools to damage three radar devices, various electrical cables, two locks controlling access to the missile for maintenance, and the concrete launch lid over the missile. Repairs were later estimated at $29,073.60. The defendants while at the site also hung signs bearing messages such as “Violence Ends Where Love Begins,” and they left a note explaining that their “intent” had been to save children and the world and to prevent “mass murder” since their Christian faith required them to “accept personal responsibility for ending th[e] cycle of violence that threatens us all.” When military security personnel arrived at N5, these defendants *583were sitting in a semicircle holding hands and singing or chanting. In addition to their tools, these deféndants had brought to the site bread and wine, a book of prayers, several pictures of children, and a baby bottle filled with a substance that either was or was supposed to represent blood.

The N5 defendants were charged with conspiracy, 18 U.S.C. § 371 (1982); willful destruction of government property, 18 U.S.C. § 1361 (1982); sabotage; and entering property within the control of the United States for a purpose prohibited by law. 18 U.S.C. § 1382 (1982). Though offered appointed counsel, they chose to represent themselves. The district court1 allowed testimony on the destructive power of nuclear weapons, the “offensive” nature of the newer nuclear missiles, the alleged escalation of risks from the availability of nuclear weapons and the nuclear buildup, the role in history of civil disobedience, international law, and the defendants’ beliefs that, based upon the statements of religious leaders, they were required by the higher law of God to prevent the crime against humanity and destruction of God’s world represented by the nuclear threat. The court, however, instructed the jury that neither good motive alone nor moral, religious, or political belief was a defense to crime and that it would be a violation of their duty as jurors if they were to pass judgment on U.S. nuclear weapons policy. The N5 defendants were convicted on all counts.

At the sentencing the district court characterized the crimes committed by the N5 defendants as “serious.” The N5 defendants’ actions, the court suggested, constituted unilateral attempts to thwart the policies of elected decisionmakers, legitimatized violence to emphasize personal disagreement, and reflected arrogance in the defendants’ certainty in the rightness and righteousness of their own views.2 The court sentenced Woodson3 and Carl Rabat each to nine years plus restitution on the sabotage count, nine years (to be served consecutively) and restitution on the destruction of property count, six months (to be served concurrently) on the trespassing count, and five years probation (to begin at the time of unconditional release from jail) on the conspiracy count. Paul Rabat was sentenced similarly but with the consecutive sentences at five years each, the concurrent sentence at five months and the probation at four years. For Cloud-Morgan the sentence terms were four years, four years, and four months respectively, with three years probation.

Meanwhile, on February 9,1985, the first day of the Rabat-Cloud-Morgan-Woodson trial, Martin John Holladay in a show of support for the N5 defendants entered a second missile site, “Nil,” also in Missouri, and inflicted $1,089.74 in damage (mostly to electrical equipment). Holladay used spray paint to display messages such as “Disarm or Dig Graves,” and a letter found on his person proclaimed that he had acted “in hope that we renounce military violence to embrace the loving nonviolence of the Gospels.” The letter further declared that it was the law’s duty to “uphold rather than hinder” acts of disarmament because nuclear weapons place millions of innocent lives in jeopardy and constitute “crimes against humanity and God.” The tools Holladay carried onto the site were inscribed, for example, with Bible verses, and again a baby bottle filled with a substance *584that either was or was supposed to represent blood was found.

Holladay was charged with willful destruction of government property and sabotage, and he also elected to proceed pro se. The district court4 refused to permit Holladay to argue or present evidence of international law; and while allowing much testimony on the effects of and need for nuclear weapons, the court instructed the jurors several times during the trial that they were not to consider the correctness of U.S. nuclear policy and that good motive was not a defense to crime. Holladay was convicted on both counts and was sentenced to eight years plus restitution and a $1,000 fine on the destruction of property count to be followed upon unconditional release from prison with five years probation on the sabotage count. The court at the sentencing commented on Holladay’s arrogance and willingness to set himself up as “judge and jury,” above elected representatives and government specialists, on matters far beyond his comprehension.

All defendants on appeal argue that the evidence was insufficient to support the sabotage verdicts because the government failed to show they acted with intent to injure the national defense and that the district courts erred in refusing to permit them to rely on international law defenses. The N5 defendants further argue that the district court through its instructions improperly precluded the jury from considering certain evidence of intent and in effect directed a verdict on that issue,5 while Holladay further argues that the district court erred in taking from the jury the defense of necessity.

I.

The sabotage statute under which the defendants were charged provides that “[wjhoever, with intent to injure, interfere with, or obstruct the national defense of the United States, willfully injures, destroys, * * * or attempts to so injure [or] destroy * * * any national-defense material [or] national-defense premises * * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both.” 18 U.S.C. § 2155(a) (emphasis added). The defendants argue that conviction thus requires proof of “specific intent” and that specific intent cannot be inferred merely from the intentional doing of an act but necessitates evidence of subjective state of mind. The government had to— yet failed to — prove, the defendants contend, something beyond the fact that they admittedly intentionally damaged the respective missiles with knowledge of the perceived roles of the missiles in the national defense.

In the context of this same statute, for example, a military court held an airman not guilty of sabotage when he deliberately placed bolts in airplane engines, causing *585damage in excess of $26,000 to each of two aircraft, because he was angry and upset after receiving a letter of reprimand. United States v. Johnson, 15 M.J. 676 (A.F.C.M.R.1983). The court quoted the airman as having testified, “I was thinking about all of my problems that I had. But I had no intentions whatsoever to interfere with or destruct the national defense — no intentions whatsoever,” and concluded that it was not persuaded that the accused intended sabotage. Id. at 678. The court quoted language from United States v. Stewart, 42 C.M.R. 19 (C.M.A.1970), in which it was held that the necessary intent to commit sabotage could not be inferred where the defendant’s act had been to deliberately in plain sight of a sailor and an officer throw a pipe and chain into an airplane air intake in hopes of avoiding another cruise assignment. Johnson, 15 M.J. at 678; see id. at 681 (Snyder, J., concurring in part and dissenting in part); see also United States v. Banks, 7 M.J. 501 (A.F.C. M.R.1979) (though finding it unnecessary to reach the issue, the court suggested there was a significant question whether the defendant intended to damage the national defense when he assisted in gluing together a drag parachute in a desire to cause a work stoppage as an act of revenge against the Air Force).

Johnson, however, does not hold that intent to injure the national defense may never be inferred from the intentional commission of the act itself, only that such an inference could not be drawn on the given facts. See 15 M.J. at 678. The N5 defendants’ acts are of an entirely different nature. This is not a case where an employee turned destructive against his employer’s property out of frustration with or malice toward that employer and the employer just happened to be the military; thq defendants here were outsiders who intentionally sought out military property, traveling to Missouri from Minnesota, Wisconsin, and even Vermont to do violence to nuclear missiles. They acted not despite the military implications of the property they damaged but expressly because of such military implications.

Furthermore, the government’s case does not rest solely on inferences from the acts committed. The defendants, through their opening and closing statements and testimony, their comments at the time of arrest, and the messages they left at the missile sites, have continuously declared that their intent was to “disarm” the missiles. N5 transcript at 101, 172-74, 224, 263, 268, 434, 451-52, 455-56, 482, 485, 490, 505, 606, 620; Holladay transcript, Vol. I at 110, 127; Vol. II. at 88-91, 119. Paul Rabat testified that although his group did not know how much damage it would be able to do and would have been satisfied with symbolic disarmament, “If there was real disarmament took place[,] from my point of view, it would have been better. That’s what I tried to do.” N5 transcript at 434. Carl Rabat testified that the N5 defendants “attempted to actually disarm in every way possible, everything that we could do that would render this weapon unusable was done to the best of our humble and whatever ability.” Id. at 486. He also testified that while taking Woodson’s household hammer to the missile site had been symbolic, he and the other N5 defendants had purchased other tools of types they guessed might be useful for disarmament and that if they had had a month working day and night, he felt they could have reached the missile with the jackhammer. Id. at 485, 506.

These attempts by the defendants to render the missiles useless were admittedly undertaken to interfere with or thwart current U.S. defense policies. For example, the N5 defendants in the letter they left at that missile site spoke of the “murderous intent” of “our government’s war policies” and stated that they intended to place their trust in the “Lord of Life” rather than in missiles. Id. at 451-52. Carl Rabat in his closing argument protested, “We are required to trust in the security of these weapons * * * and not to trust in God as the Bible requires.” Id. at 615. Similarly, Holladay testified that his intent in seeking to disarm the missile was influenced by a pastoral letter which instructed, “We must *586find means of defending peoples that do not depend upon threat of annihilation.” Holladay transcript, Vol. II at 104.

Defendants argue, however, that they did not thus intend to “injure, interfere with, or obstruct the national defense” because they thought disruption of current U.S. policies would actually increase the national security. The N5 defendants presented a witness who stated that, by disarming, “We don’t destroy the defense. We don’t destroy the national security. If anything, what we do is say that our security must be rooted on firmer grounds.” N5 transcript at 416. Holladay also presented a witness who testified that the current nuclear buildup was “destabilizing” and was pushing the United States closer to war, Holladay transcript, Vol. I at 245-52, while Holladay himself testified that he did not intend to injure “national security” because “true security * * * doesn’t come from nuclear weapons.” Id. Vol. II at 116.

This argument basically is one of statutory interpretation. The district court at Holladay’s trial defined “national defense” as “a generic concept of broad connotations referring to the military and naval establishments and the related activities of national preparedness.” Id. Vol. II at 212.6 The term “national defense” thus would refer to a tangible set of functions and policies which would remain constant as to all actors, and the government would only have to prove a subjective intent to interfere with what objectively would be known to be the nation’s capacity to wage war and defend attacks.7 The defendants to the contrary would make “national defense” synonymous with “national well-being” or “the country’s best interests,” all as determined in light of the international and military philosophies, politics, and convictions that subjectively existed in the mind of whichever particular citizen chose to act. In essence, the defendants would construe the phrase “intent to injure, interfere with, or obstruct the national defense” as a whole and would take it as a requirement of anti-U.S. animus.

What little precedent exists supports the position of the district court. The instruction the court gave adopted the definition of “national defense” approved by the Supreme Court in Gorin v. United States, 312 U.S. 19, 28, 61 S.Ct. 429, 434, 85 L.Ed. 488 (1941), in discussing the Espionage Act of June 15, 1917. See 18 U.S.C. § 793 (1982). This definition similarly was adopted for the sabotage statute by the district court in United States v. Melville, 309 F.Supp. 774, 780 (S.D.N.Y.1970). Legislative history shows that a related sabotage provision, 18 U.S.C. § 2153 (1982), was aimed not merely — or even mostly — at foreign agents but rather was prompted by a congressional concern with the impact on the war effort of strike-related violence. 56 Cong.Rec. 3111-20 (1918). Section 2155 was later added to make the prohibitions of section 2153 applicable also in peacetime. United States v. Bishop, 555 F.2d 771, 773 (10th Cir.1977). Thus, although section 2153 speaks of an intent to interfere with the United States “in preparing for or carrying on the war or defense activities” while section 2155 speaks of an intent to interfere with the “national defense,” the change in language seemingly merely reflects the changed context rather than a legislative determination that violation of section 2155 should require a subjective malice toward the United States’ best interests instead of merely toward its chosen course of defense activity.8

*587When the need is to protect the functioning of established military systems, it makes sense to attach the label and penalty of “sabotage” to the conduct of any person who consciously interferes therewith, whatever their degree of “patriotism.” The scienter requirement of section 2155 protects those who do not recognize the military uses of property against which they do violence. See Melville, 309 F.Supp. at 780 (offering example). Such unknowing military interference will not be deterred by the imposition of penalties beyond those for destruction of property; additional protection, however, might be achieved equally from persons who take it upon themselves to correct national defense policies as from persons who act from anti-U.S. animus.9 To allow all citizens who thought they could further U.S. security to act on their theories at will could make it impossible for this country to maintain a coherent defense system. As Judge (now Justice) Stevens wrote in a case involving burning of draft records:

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. Appellant’s professed unselfish motivation, rather than a justification, actually identifies a form of arrogance which organized society cannot tolerate.

United States v. Cullen, 454 F.2d 386, 392 (7th Cir.1971) (footnote omitted). We conclude that the “specific intent” required by section 2155 is only the intent to interfere with what may commonly be taken as the country’s activities of national preparedness and not the intent to act to what one subjectively believes to be the detriment of the United States.

This conclusion also disposes of the defendants’ arguments that they lacked “criminal intent” in that they were variously saving the world and its inhabitants from death and indiscriminate homicide, N5 transcript at 101, 434, 451; Holladay transcript, Vol. I at 23, 108; acting as required by their faith and the Bible by serving as “peacemakers” and taking personal responsibility for ending the “cycle of violence,” N5 transcript at 451; Holladay transcript, Vol. II at 88; reversing a nuclear “insanity” that somehow developed contrary to the will of the American people, Holladay transcript, Vol. II at 97; preventing the immoral destruction of God’s earth, N5 transcript at 490; and replacing the “worship” of missiles with trust in God. Id. at 615.

“Criminal intent” properly used refers to the mental state required by the particular statute which makes the act a crime. See W. LaFave & A. Scott, Handbook on Criminal Law § 28, at 201 (1972). Once that intent has been proven, it is immaterial that a defendant may also have had some secondary, or even overriding, intent. Id. at 200. If the intent is overriding — that is, it reflects the ultimate end sought which compelled the defendant to act — it is more properly labeled a “motive.” See Cullen, 454 F.2d at 391. This is true even with respect to a “specific intent” statute where the intent itself is stated in terms of an “end,” for example, breaking and entering with intent to commit theft. *588The “end” of stealing money still could be just a means to another more valued consequence, such as giving to the poor; that ultimate goal, however, would not replace or negate the intent of stealing and would still be a “motive,” while the intent to steal would still provide the “specific intent” required by the statute. See W. LaFave & A. Scott, supra, at 204-05.

This is precisely the situation with nuclear protestors. Though the defendants here intended disarmament only as a means and not as an end, their ultimate desire of saving innocent lives does not replace or negate the intent which the statute requires — that of interfering with U.S. defense functions, facilities, and policies. The defendants through their own words made clear that they saw such interference as necessary to their benevolent goals: when it is nuclear missiles, a part of the U.S. defense system, that are “illegal,” “immoral,” “criminal,” and “murderous,” one can hardly halt the inexorable slide toward killing and destruction without interfering with — and intending to interfere with — that established part of the U.S. defense system. Any argument to the contrary merely tries to read back into the statute a requirement of a subjective desire to interfere with the country’s best interests, an interpretation that we have already rejected.

Viewing the evidence in the light most favorable to the government, see, e.g., United States v. Willis, 774 F.2d 258, 260 (8th Cir.1985); United States v. Martin, 772 F.2d 1442, 1445 (8th Cir.1985); United States v. Richmond, 700 F.2d 1183, 1189 (8th Cir.1983), we find there was sufficient evidence to support the jury verdicts of sabotage as to all defendants.

II.

The N5 defendants argue that even if there was sufficient evidence of intent to sustain their convictions, the district court improperly foreclosed consideration of their opposing evidence on intent through its instructions to the jurors not to decide whether U.S. nuclear weapons policy was “morally proper, religiously sound, or politically wise” and not to consider “the purpose or motive of any defendant.” This language in Instruction 29, the N5 defendants assert, in effect took away the presumption of innocence and further forced the jury to decide the issue of specific intent solely on the basis of the defendants’ conduct despite the availability of direct evidence of the defendants’ subjective states of mind.

When error is alleged in a portion of a jury charge, we review the challenged passage not in “artificial isolation” but in the context of the instructions as a whole. United States v. Udofot, 711 F.2d 831, 839 (8th Cir.), cert. denied, 464 U.S. 896, 104 S.Ct. 245, 78 L.Ed.2d 234 (1983); e.g., United States v. Hutchings, 751 F.2d 230, 239 (8th Cir.1984), cert. denied, — U.S.-, 106 S.Ct. 92, 88 L.Ed.2d 75 (1985). It is not grounds for reversal that the charge might have been differently, or even better, worded; a district court has wide discretion on choice of language, and we will not find that discretion abused when the instructions as a whole accurately and adequately state the relevant law. Udofot, 711 F.2d at 839; United States v. Shigemura, 682 F.2d 699, 704, 705 (8th Cir.1982), cert. denied, 459 U.S. 1111, 103 S.Ct. 741, 74 L.Ed.2d 962 (1983).

Instruction 29 in full read as follows:

I have permitted over the objection of the United States the presentation of a great deal of information. I did so in an effort to afford the defendants, who are laymen and a laywoman and not lawyers, every opportunity to present essentially all the information they wanted to. However, I am concerned that as a result of affording them this opportunity, and because of certain rulings I made, you may be confused about the job you are to perform. You have heard a good deal of philosophical, moral, religious and political comment about nuclear weapons. I fear that you may think that your job is to decide whether the United States’ nuclear weapons policy is morally proper, religiously sound, or politically wise. *589Clearly and absolutely that is not your job. In fact, it would be a violation of your sworn duty for you to allow your consideration of this case to be influenced by your personal views on the moral, religious or political aspects of nuclear weapons policy.
Your job is to apply the law stated in these instructions to the facts as you find them from the evidence. You will not be asked to determine and you should not concern yourself with the purpose or motive of any defendant in doing any act that you find the defendant committed. Under these instructions, you should concern yourself only with determining whether the United States has established beyond a reasonable doubt the essential elements of each offense as to each defendant.
Instructions No. 12, 16, 17, 21, 22, and 25 set out the elements of the offenses charged. You will notice that in each of these instructions one essential element of each offense is some intent or mental state. In order to find a defendant guilty of any offense you must conclude that the mental state described has been proved by the United States beyond a reasonable doubt. However, you are not required by these instructions and you should not concern yourself about the motive, good or bad, or reason, laudable or not, initiating the doing of a particular act. (emphasis added)

The district court thus repeated that the government had the burden of proof beyond a reasonable doubt on each element of each offense (the phrase appears in virtually every instruction), reminded the jury that each offense included an intent requirement, and reemphasized specifically that the reasonable doubt standard applied to intent. The court further stated that it was the “motive * * * initiating the doing of a particular act” that the jury was to disregard. Read in context with earlier language in Instruction 9 associating motive with the desire or expectation that ultimate good would result from a criminal act,10 this charge adequately distinguishes motive — the “why” — from the statutorily defined intent to engage in the proscribed act, albeit as a means to achieve that “why.” The jury was left to make its own determination on the facts on intent and was in no way directed that intent existed or that there was any presumption that intent existed.

Furthermore, although some district courts have included in their instructions the clarification that evidence of good motive may give rise to an inference that the necessary intent did not exist, see, e.g., United States v. Richmond, 700 F.2d 1183, 1195 (8th Cir.1983), we find no error in the failure to include such language in this case. As discussed in Part I, supra, the N5 defendants’ “good motives” are rooted in their premise that U.S. defense policies are a source of danger and evil, a premise that actually reinforces the existence of the required statutory intent of interference with the defense establishment. The N5 defendants cannot have been prejudiced by the district court’s failure to point out to the jury a harmful inference. Instead, their argument basically is again that their “good motives” were the type or level of mental state addressed by section 2155. We reject this statutory interpretation here as we rejected it in the context of sufficiency of the evidence. The instructions foreclosed the jury only from considering under the label of “intent” subjective desires of the N5 defendants that were not “intents” within the contemplation of the relevant statute. We find no error in confining the jury to the law.

*590III.

Holladay and the N5 defendants next challenge their convictions both for sabotage and on the other counts as violative of due process in that they were not allowed to assert in their defense a privilege to prevent alleged violations by the United States of international law. Such a privilege, they contend, was recognized by the international tribunal which presided over the trials of Nazi war criminals at Nuremberg after World War II. Certain of the Nuremberg defendants — for example, jurists who enforced laws making it illegal to interfere with Nazi policies of exterminating minority group members and dissidents, and industrialists who used slave labor in armament production — argued that they should not be prosecuted for their conduct because they had merely followed domestic law; the judgment, however, was that such individuals had had an obligation under international law to violate domestic provisions to prevent their country’s continuing crimes against humanity. E.g., The Justice Case, reprinted in 3 Trials of War Criminals Before Nuremberg Military Tribunals Under Control Council Law No. 10 (1951). Thus, Holladay and the N5 defendants reason, they cannot be prosecuted pursuant to the various sections of the U.S. Code because they had a duty to violate domestic law to prevent the continuing international law violations allegedly represented by U.S. nuclear policy.

We find this argument to be unpersuasive. The parties found in the Nuremberg trials to have had a duty to violate domestic law had been required by such law to engage in acts that aided and furthered Nazi violations of international principles. The tribunal found that those persons had committed war crimes — crimes of commission, not crimes of omission — and any privilege to have violated domestic law would have followed from the need to avoid personal liability under international law. It would be a great extension of this argument to hold that persons who remained passive, neither aiding nor opposing their governments’ international violations, were war criminals merely by virtue of their citizenship or residence in their given countries. And if failure to object does not make one complicit, persons such as the defendants here are in no danger of sanction under international law and can claim no privilege to violate domestic law to protect themselves. See United States v. Allen, 760 F.2d 447, 453 (2d Cir.1985); United States v. Montgomery, 772 F.2d 733, 737-38 (11th Cir.1985).11 This conclusion of course makes it unnecessary for us to reach the defendants’ arguments regarding the illegality of nuclear weapons.

IV.

Finally, Holladay argues that on the evidence presented he was entitled to have the jury instructed on the theory that his criminal acts were justified by his reasonable belief that such conduct was necessary — and would be sufficient — to prevent a greater harm. A defendant upon timely request is entitled to an instruction if it contains a correct statement of the law and has support in the record. United States v. Marchant, 774 F.2d 888, 894 (8th Cir.1985); United States v. Manning, 618 F.2d 45, 47-48 (8th Cir.1980). It is sufficient that the defendant have shown an *591“underlying evidentiary foundation” as to each element of the defense, “regardless of how weak, inconsistent or dubious” the evidence on a given point may seem. United States v. Goss, 650 F.2d 1336, 1345 (5th Cir.1981) (cited with approval in United States v. Casperson, 773 F.2d 216, 223 n. 12 (8th Cir.1985)). We have never held, however, that a defense must be submitted to the jury even when “it cannot be said that a reasonable person ‘might conclude’ the evidence supports” the defendant’s position. United States v. Creamer, 555 F.2d 612, 616 (7th Cir.) (cited in United States v. Prieskorn, 658 F.2d 631, 636 (8th Cir.1981)), cert. denied, 434 U.S. 833, 98 S.Ct. 118, 54 L.Ed.2d 93 (1977); e.g., United States v. Wells, 773 F.2d 230 (8th Cir.1985) (per curiam) (no error in failure to instruct the jury on the defense of coercion when insufficient evidence that the defendant lacked other alternatives to committing the crime.).

This latter situation is more nearly that which exists in necessity defense cases involving military protestors. A vital element of any necessity defense is the lack of a reasonable alternative to violating the law; that is, the harm to be avoided must be so imminent that, absent the defendant’s criminal acts, the harm is certain to occur. United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980). As the Tenth Circuit has emphasized,

The defense of necessity does not arise from a “choice” of several courses of action, it is instead based on a real emergency. It can be asserted only by a defendant who was confronted with such a crisis as a personal danger, a crisis which did not permit a selection from among several solutions, some of which did not involve criminal acts. It is obviously not a defense to charges arising from a typical protest.

United States v. Seward, 687 F.2d 1270, 1276 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 789, 74 L.Ed.2d 995 (1983).

Consistent with this position, this court held in United States v. Kroncke, 459 F.2d 697 (8th Cir.1972), that the necessity defense was not available to persons who sought to argue that their attempts to destroy selective service records were the only means of ending the Vietnam War. We distinguished precedents relied on by Kroncke and his cohort as involving “direct and immediate peril” and added, “None of the cases even suggests that the defense of necessity would be permitted where the actor’s purpose is to effect a change in governmental policies which, according to the actor, may in turn result in future savings of lives.” Id. at 701.

Similarly, in a case decided less than a week before the start of Holladay’s trial, the Ninth Circuit held that opportunities for speech and political participation made the necessity defense unavailable to a defendant who because of his concern about nuclear war had entered a missile assembly plant with the intention of damaging MX missiles and had used spray paint to write political slogans on the building. United States v. Dorrell, 758 F.2d 427 (9th Cir.1985); accord United States v. Quilty, 741 F.2d 1031 (7th Cir.1984) (per curiam); United States v. Cassidy, 616 F.2d 101 (4th Cir.1979) (per curiam). Protestors, the court reasoned, cannot create “necessity” through their own impatience with the “less visible and more time-consuming alternatives.” Dorrell, 758 F.2d at 431. Nor was it relevant that the defendant, like Holladay, offered evidence that other protest activities and political efforts had been unavailing in halting the nuclear buildup; a lack of results might mean only that the will of the majority, legitimately expressed, had prevailed. Id. at 432. The necessity defense was never intended to excuse criminal activity by those who disagree with the decisions and policies of the lawmaking branches of government: in such cases the “greater harm” sought to be prevented would be the course of action chosen by elected representatives, and a court in allowing the defense would be making a negative political or policy judgment about that course of action. Judgments of that type, however, are not the *592province of judge (or jury) under the separation of powers established by our Constitution. Id.; United States v. May, 622 F.2d 1000, 1009-10 (9th Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247 (1980).

Finally, in political protest cases a sufficient causal relationship between the act committed by the defendants and avoidance of the asserted “greater harm” inevitably will be lacking. For example, in Kroncke this court found the necessity defense inapplicable because the connection between destroying selective service records and ending the Vietnam War was too “tenuous and uncertain.” 459 F.2d at 701. Similarly, the Ninth Circuit as an additional rationale in Dorrell held that the defendant had “failed as a matter of law to establish that his entry into [the air force base] and his spray-painting of government property could be reasonably anticipated to lead to the termination of the MX missile program and the aversion of nuclear war.” 758 F.2d at 433; accord May, 622 F.2d at 1009; United States v. Cassidy, 616 F.2d 101,102 (4th Cir.1979); United States v. Simpson, 460 F.2d 515, 518 (9th Cir.1972).

Both the Ninth and Tenth circuits have affirmed convictions of military protestors where the district court not merely refused to give an instruction on necessity but further excluded such evidence because it found from the offer of proof that not all elements of the defense could be shown. E.g., United States v. Cottier, 759 F.2d 760, 763 (9th Cir.1985); Dorrell, 758 F.2d at 433, 434; Seward, 687 F.2d at 1276; United States v. Lowe, 654 F.2d 562, 567 (9th Cir.1981). We can find no error here where the district court accepted such evidence before withholding from the jury a defense that was insufficient as a matter of law.

In conclusion, we observe that the first amendment is not implicated in this decision. The defendants raised no argument that the various criminal statutes as applied impermissibly infringed their opportunities to voice their opinions on significant public issues or penalized them for criticizing government acts. Instead, what the defendants sought to do, first physically and later through the courts, was to impose upon the U.S. legislative and executive branches the defendants’ idea of “good government.” The defendants would have lacked standing to bring a private suit challenging U.S. nuclear weapons policies, and they cannot by first committing crimes avoid the requirement that to invoke judicial authority they show an injury beyond that shared by all citizens. United States v. Allen, 760 F.2d 447, 453 (2d Cir.1985).

We find no error in the district courts’ interpretations of and instructions on intent or in their rejections of the international law and necessity defenses. We affirm the convictions of all defendants on all counts.

. The Honorable D. Brook Bartlett, United States District Judge for the Western District of Missouri.

. The district court also noted the violent and intentional nature of the destruction, the past criminal records of the defendants, and the assertions of the various N5 defendants that they would possibly, likely, or even certainly commit similar acts at other missile sites in the future.

. Woodson withdrew her notice of appeal, so her fate is not at issue here. We observe, however, that, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, the district court on November 1, 1985, reduced Woodson's consecutive sentences to six years each (the sentences on the other counts remained unchanged). The court based its action on a Parole Commission ruling as to the severity of the offenses that would have resulted in Woodson being incarcerated longer than the district court had anticipated.

. The Honorable Elmo B. Hunter, Senior United States District Judge for the Western District of Missouri.

. The government in regard to this and the international law issue asserts that the N5 defendants are not entitled to relief absent plain error because of their failure to object or to offer an appropriate instruction respectively. Fed.R.Crim.P. 30; see, e.g., Barnes v. United States, 777 F.2d 430, 431 (8th Cir.1985); United States v. Jackson, 714 F.2d 809, 813 (8th Cir. 1983); United States v. Joyner, 539 F.2d 1162, 1166 (8th Cir.), cert. denied, 429 U.S. 983, 97 S.Ct. 499, 50 L.Ed.2d 593 (1976). We observe that we are in the habit of granting indulgence to persons proceeding pro se, cf. O'Blasney v. Solem, 774 F.2d 925, 926 (8th Cir.1985) (pro se petition for habeas corpus to be read with indulgence); Williams v. Lockhart, 772 F.2d 475, 480 (8th Cir.1985) (claim taken as raised where, while not mentioned in the original petition, it was addressed in detail in subsequent filings); Munz v. Parr, 758 F.2d 1254, 1258 (8th Cir.1985) (pro se complaint to be liberally construed); and the record shows that the district court was clearly aware of the defendants’ theories of their cases. See United States v. Earley, 746 F.2d 412, 414 (8th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2707, 86 L.Ed.2d 723 (1985); cf. United States ex rel. Means v. Solem, 646 F.2d 322, 328 (8th Cir.1980) (request for instruction incorrectly stating law was sufficient to put court on notice to give a proper instruction on the issue). Given our outcome, we may assume without deciding that the N5 defendants’ international law and instructional objections thus are properly before us. (Furthermore, we must reach the international law defense anyway as to Holladay.)

. The court at the trial of the N5 defendants offered no definitions.

. The defendants assert that the "national defense” extends only to weapons with “defensive,” as compared to "offensive,” uses. We conclude, however, that for the purpose of defining the offense included within section 2155, weapons systems cannot be so neatly categorized.

. Section 2153(a) provides:

Whoever, when the United States is at war, or in times of national emergency as declared by the President or by the Congress, with intent to injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war or defense activities, or, with reason to believe that his act may injure, interfere with, or obstruct the United States or any associate nation in pre*587paring for or carrying on the war or defense activities, willfully injures, destroys, contaminates or infects, or attempts to so injure, destroy, contaminate or infect any war material, war premises, or war utilities, shall be fined not more than $10,000 or imprisoned not more than thirty years, or both.

While the presence in section 2153 of a “reason to believe" clause absent in section 2155 might be relevant in cases, such as Johnson, where defendants act without conscious reflection on the implications of their conduct for national defense, this is not, as we developed earlier, the situation here.

. Furthermore, the statutory construction urged by defendants would withdraw the sanction of . sabotage from conduct of others than political dissenters. For example, a person who knew no allegiance or animosity other than personal gain could engage in the same acts as these nuclear protesters, consciously interfering with national defense property, but for money, and would be guilty of no greater crime than destruction of government property despite the government’s greater interest in preserving the integrity of its military establishments and defense systems.

. Instruction 9 in full read as follows:

Good motive alone is never a defense where the act done is a crime. One may not commit a crime and be excused from criminal liabiltiy [sic] because he desired or expected that ultimate good would result from his criminal act. Moreover, if one commits a crime under the belief, however sincere, that his conduct was religiously, politically or morally required, that is no defense to the commission of a crime.

. The defendants, at least in their initial briefs, attempt to draw from the German jurists case an alternate basis, other than the need to avoid personal sanctions, for the privilege to act to prevent violations of international law. They argue that the German jurists’ war crimes lay in their failures to allow dissidents at their trials in Nazi courts to assert international law defenses to charges of interfering with Nazi extermination policies. Thus, the defendants reason, they, like the prosecuted German dissidents, were entitled to assert privileges to prevent violations of international law at their trials in domestic courts even though they otherwise faced no obligations to participate in their country’s crimes against humanity. We suggest, however, that a more proper interpretation of the German jurists’ case identifies the jurists’ war crimes as the imposition of harsh penalties, such as death sentences, on dissidents; the conduct of repeated trials for the same offenses; the holding of secret trials; the predetermination of sentences; the use of discriminatory trial procedures; and the denial of the right to appeal and the opportunity to file civil suit. See 3 Trials of War Criminals, supra, at 19-25.