United States v. Platte

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 17 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 03-1345
ARDETH PLATTE,

Defendant - Appellant.
------------------------------------------

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 03-1347

JACKIE MARIE HUDSON,

Defendant - Appellant.
------------------------------------------

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 03-1353

CAROL GILBERT,

Defendant - Appellant.
 APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 02-CR-509-RB)

Scott T. Poland of Poland & Wheeler, Lakewood, Colorado, for Defendant -
Appellant Platte.

Clifford J. Barnard, Boulder, Colorado, for Defendant - Appellant Hudson.

Susan J. Tyburski of Boyle & Tyburski, Denver, Colorado, for Defendant -
Appellant Gilbert.

James C. Murphy, Assistant United States Attorney (John W. Suthers,
United States Attorney, and Robert M. Brown, Assistant United States Attorney,
with him on the brief), Denver, Colorado, for Plaintiff - Appellee.

Before HARTZ , ANDERSON , and TYMKOVICH , Circuit Judges.

HARTZ , Circuit Judge.

Defendants Ardeth Platte, Carol Gilbert, and Jackie Marie Hudson are

Sisters in the Dominican Order. They appeal their convictions for violation of 18

U.S.C. § 2155(a), which prohibits the injury or destruction of national-defense

materials or premises with the intent to injure, interfere with, or obstruct the

national defense. They contend that (1) the evidence was insufficient to support

the convictions; (2) the district court improperly denied their request for a good-

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faith jury instruction and two other instructions; and (3) the term national

defense, as defined in the court’s instructions, is unconstitutionally overbroad and

vague. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

In the early morning of October 6, 2002, Defendants entered a Minuteman

III Missile site in Weld County, Colorado. As Defendants knew, the site was in a

state of high readiness—the nuclear missiles were to be launched within 15

minutes of a Presidential order. Each Defendant wore a suit bearing the initials

“CWIT” (standing for “Citizen Weapon Inspection Team”) on the back and

“Disarmament Specialist” on the front. They brought a banner stating “Sacred

Earth & Space Plowshares II–2002." Their “primary motive was to expose the

existence of this deadly weapon [the missile]—and their good faith belief in its

criminality—to public scrutiny.” Aplt. Br. at 31. To gain access to the missile

silo, which was enclosed by two fences, they cut a chain securing a lock on each

of the fences. They also removed three 10-foot sections of fence by cutting the

chain links on either side. The inner fence was posted with signs warning that the

area was a “priority one” restricted area, and that deadly force was authorized

against intruders.

Once past the fences, Defendants engaged in two ceremonial acts. They

poured their own blood, which they carried in baby bottles, on and around the silo

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cover to form the shape of crosses. This act was in memory of all the victims of

war. Then, to symbolize the beating of swords into plowshares, they tapped with

ball-peen hammers on the metal rails supporting the blast lid. In addition to the

baby bottles with blood and the hammers, Defendants carried with them bolt

cutters, tin snips, rosaries, a crucifix, prayer books, and books they had read

pertaining to nuclear weapons. Their stated purpose was to expose the site and to

stop the threatened use of weapons of mass destruction, which they alleged was in

violation of various domestic and international laws and treaties.

Defendants’ actions triggered a swift response. Air Force security

personnel were diverted from training exercises and arrived at the missile site in

several armed vehicles. They crashed through the partially open outer gate

because they were not sure it was safe to exit the vehicles. As they approached

further, they observed Defendants standing on top of the concrete blast door

carrying black bags. The three women appeared to be praying and singing.

Because the security personnel could not immediately discern what was in the

black bags, they summoned a helicopter and explosives experts. Neighboring

Highway 14 was closed in both directions. Defendants were surrounded by

officers with guns drawn. Continuing to sing and pray, the three women

announced that they were peaceful and surrendered with their hands in the air.

Eventually arriving on the scene were 20 to 30 security personnel from the

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military police, the Sheriff’s office, the Office of Special Investigations, the FBI,

and the Explosive Ordnance Device Team at the base.

Defendants were each charged with one count of violating 18 U.S.C.

§ 2155(a), entitled “destruction of national-defense materials, national-defense

premises, or national-defense utilities,” and one count of violating 18 U.S.C.

§ 1361, depredation against government property. Before trial the district court

entered an order restricting Defendants’ presentation to the jury of the basis of

their opposition to nuclear missiles. Absent an “offer of proof accepted by the

court,” Pretrial Orders in Limine, R. Vol. II, doc. 93 at 31, the order prohibited

evidence, jury voir dire, jury instructions, and argument regarding

any defense based on necessity or violation of international law or
that impugns, inter alia, the lethality, legality, morality, or political
wisdom of the Minuteman III missile system, including but not
limited to, the following variously described defenses: necessity;
duress; choice of evils; privilege; justification; “Nuremberg”;
mistake of law; good faith exception to mistake of law; international
law violations; jus cogens violations; peremptory norms of
international law violations; war crimes violations; customary
international law violations; nonderogable jus cogens norm of
customary international law violations; international humanitarian
law violations; U.S. Army Field Manual violations; International
Court of Justice (ICJ) judgment violations; treaty violations; United
Nations Charter violations; Vienna Convention violations;
Restatement of Foreign Relations Law violations; Geneva
Convention or Protocol violations; and/or Tokyo Judgment
violations[.]

Id. at 31-32.

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 A jury trial was held from March 31 to April 7, 2003. The court allowed

testimony regarding the Defendants’ study and understanding of nuclear weapons

and various sources of law, but only as it pertained to their state of mind at the

time they entered the missile site. The jury found all three Defendants guilty of

both counts. Sisters Hudson, Gilbert, and Platte were sentenced respectively to

30 months’, 33 months’, and 41 months’ imprisonment.

II. DISCUSSION

Defendants appeal only their convictions and sentences under 18 U.S.C.

§ 2155(a), which provides in relevant part:

Whoever, with intent to injure, interfere with, or obstruct the national
defense of the United States, willfully injures, destroys, [or]
contaminates . . . or attempts to so injure, destroy, [or]
contaminate . . . any national-defense material, national-defense
premises, or national-defense utilities, shall be fined under this title
or imprisoned not more than 20 years, or both . . . .

A. Sufficiency of Evidence

The offense defined by § 2155(a) has two essential elements. First, the

defendant must “willfully injure[], destroy[], [or] contaminate[], . . . any national-

defense material, national-defense premises, or national-defense utilities.” 18

U.S.C. § 2155(a). Second, she must act with the “intent to injure, interfere with,

or obstruct the national defense of the United States.” Id. Defendants do not

challenge the sufficiency of the evidence to establish the first element, so we

confine our discussion to the second.

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 Our task is not to assess whether we would have voted to convict had we

been on the jury.

[I]n reviewing the sufficiency of the evidence to support a jury
verdict, this court must review the record de novo and ask only
whether, taking the evidence—both direct and circumstantial,
together with reasonable inferences to be drawn therefrom—in the
light most favorable to the government, a reasonable jury could find
the defendant[s] guilty beyond a reasonable doubt.

United States v. Beers, 189 F.3d 1297, 1301 (10th Cir. 1999) (internal quotation

marks omitted). “We do not use this evaluation as a chance to second-guess the

jury’s credibility determinations, nor do we reassess the jury’s conclusions about

the weight of the evidence presented.” Id. (internal quotation marks omitted).

To determine whether the evidence suffices to prove an “intent to injure,

interfere with, or obstruct the national defense,” we begin with the definition of

national defense in the district court’s Jury Instruction No. 16: “a generic

concept of broad connotations referring to military establishments and the related

activities of national preparedness.” R. Vol. II, doc. 126. This definition is taken

from Gorin v. United States, 312 U.S. 19, 28 (1941) (prosecution under Espionage

Act), and United States v. Kabat, 797 F.2d 580, 586 (8th Cir. 1986) (prosecution

under § 2155(a)). The question before the jury thus was whether Defendants

intended to injure, interfere with, or obstruct a military establishment (the missile

site) or national preparedness. In our view, the evidence was sufficient for the

jury to answer Yes. (Later in the opinion we address Defendants’ arguments that

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this definition of national defense renders § 2155(a) unconstitutionally overbroad

and vague.)

Certainly the jury could properly infer that Defendants intended a

disruption like the one they actually caused at the missile site. At the very least,

signs on the fence warning that deadly force was authorized against intruders

would have alerted them that their entry would elicit a vigorous response. See

Wingfield v. Massie, 122 F.3d 1329, 1333 (10th Cir. 1997) (“a jury is permitted to

draw inferences of subjective intent from a defendant’s objective acts”).

Moreover, given Defendants’ admitted purpose of seeking publicity for their

opposition to the missiles, the jury could infer that Defendants desired the

publicity that would likely attend a major disruption.

As we understand Defendants’ argument, they are contending that they

knew that none of their actions could prevent the launch of a missile, so they

lacked “intent to injure, interfere with, or obstruct the national defense.”

§ 2155(a) (emphasis added). We note that they are probably wrong about the

potential impact of their intrusion on a missile launch—Lieutenant Colonel

Adams indicated that it would have been unwise to fire a missile if the launch

team suspected that there were explosives on the launch-facility closure doors,

and it was unclear for a period of time whether the intruders (who turned out to

be Defendants) were carrying such explosives.

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 More importantly, however, “national defense” encompasses more than the

capacity to launch missiles. It includes “activities of national preparedness.”

Gorin, 312 U.S. at 28 (internal quotation marks omitted). For example, training

of military personnel is a critical component of military preparedness.

Interference with training (which was the assignment of the security personnel

when they were diverted to dealing with Defendants) can be interference with the

national defense. Of course, Defendants could not have known they were

interfering with training exercises. But they certainly knew that they were not

engaging in a trivial intrusion on some obscure military facility. As the district

court instructed the jury, “‘with intent’ . . . means knowing that the result is

practically certain to follow regardless of any desire, purpose, or motive to

achieve the result.” R. Vol. II, doc. 126, Jury Instruction No. 18. See

United States v. Welch, 327 F.3d 1081, 1095 n.13 (10th Cir. 2003). Although

Defendants may not have known whether their actions would delay a launch,

interrupt training exercises, or have some other impact, the jury could reasonably

infer that Defendants were aware that their actions would almost inevitably cause

a substantial disruption to military operations. To assume that the intrusion

would have no impact on a “military . . . establishment[] [or] the related

activities of national preparedness,” Gorin, 312 U.S. at 28 (internal quotation

marks omitted), would be to assume that the missile site had no military mission.

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 The high-minded motives of Defendants do not negate their intent. In a

similar prosecution under § 2155(a) of an intrusion on a missile site by persons

opposing nuclear weapons, the Eighth Circuit said: “Though the defendants . . .

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.”

Kabat, 797 F.2d at 588. Civil disobedience can be an act of great religious and

moral courage and society may ultimately benefit. But if the law being violated is

constitutional, the worthiness of one’s motives cannot excuse the violation in the

eyes of the law. History has not been short of evidence of the risks, the evils, that

can attend subordinating the requirements of law to one’s personal view of

morality. In the words of Judge (now Justice) Stevens:

If [Defendants’] theory of defense were valid, the character of
[their] conduct would be judged not by the rule of law but by the end
which [their] means were designed to serve. . . .

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

A simple rule, reiterated by a peaceloving scholar, amply
refutes [Defendants’] arrogant theory of defense: “No man or group
is above the law.”

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United States v. Cullen, 454 F.2d 386, 392 (7th Cir. 1971) (quoting United States

v. United Mine Workers, 330 U.S. 258, 343, 385 (1947) (Rutledge, J. dissenting))

(internal footnote omitted).

Finally, we address the military-court decisions cited by Defendants:

United States v. Ortiz, 24 M.J. 164 (C.M.A. 1987); United States v. Johnson, 24

M.J. 101 (C.M.A. 1987); United States v. Stewart, 42 C.M.R. 19 (C.M.A. 1970);

United States v. Johnson, 15 M.J. 676 (A.F.C.M.R. 1983); and United States v.

Banks, 7 M.J. 501 (A.F.C.M.R. 1979). Defendants argue that these cases, which

involve military prosecutions under § 2155(a), established their lack of the intent

required by that statute. Only two of these, however, ruled that there was

insufficient evidence of intent; and one of the two was reversed on appeal, see

Johnson, 15 M.J. at 677, rev’d, 24 M.J. at 107. To the extent that the other,

Stewart, has not been overruled (at least implicitly) by later military-court

decisions, we disagree with it in part and otherwise distinguish it.

In Stewart:

[T]he accused was observed throwing a pipe and chain into the air
intake duct of an F8C jet aircraft. Routine examination of the plane
prior to use revealed the presence of these articles and they were
removed without damage to the aircraft. A Government witness
testified that prior to the incident, the accused told him that he would
like to find a way to get out of going on another cruise to the
Mediterranean.

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42 C.M.R. at 20. Just after throwing the objects into the intake duct, the accused

asked the witness whether the line officer saw him. The court said: “The

difficulty we find with this case is that there is simply no direct evidence that the

accused acted with the specific intent to ‘injure, interfere with, or obstruct the

national defense of the United States.’” Id. at 21. “[H]ad the accused been intent

on interfering with the national defense of the United States,” it reasoned, “he

would have acted in a more surreptitious manner and not so openly.” Id. at 22.

The Stewart court, however, never directly addressed the proposition that

one acts “with intent” to do something when she knows that the result is

“practically certain” to follow. See Welch, 327 F.3d at 1095 n.13. That

proposition was recognized in the later case of Ortiz, 24 M.J. 164 (Ortiz I), and

the subsequent decision on remand, United States v. Ortiz, 25 M.J. 570

(A.F.C.M.R. 1987) (Ortiz II). In that case the accused had allegedly disconnected

an electrical relay in the antiskid system of an F-15 aircraft while engaged in

preparing it for a training sortie. When the pilot arrived for the mission he noted

a malfunction light. Maintenance personnel discovered the disconnected relay

about one-and-a-half hours later. The plane was fully operational once the relay

was reconnected. The government also offered evidence that the accused had

been angry about working too many hours and had told a co-worker “‘that from

now on for every hour of sleep he loses, the Air Force . . . [will] lose out on

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flying time.’” Ortiz I, 24 M.J. at 167 (brackets in original). The Air Force Court

of Military Review had originally set aside the § 2155(a) conviction on the

ground “that there was insufficient evidence of an intent to harm national

defense.” Ortiz II, 25 M.J. at 571. The United States Court of Military Appeals

reversed, quoting its recent opinion in Johnson, 24 M.J. at 105, for the

proposition that “‘§ 2155(a) would be satisfied if someone acted when he knew

that injury to the national defense would be the almost inevitable result, even

though the reason for his action had nothing to do with national defense.’” 24

M.J. at 169. The court explained its Stewart decision as follows: “Apparently the

rationale of Stewart was that the accused there did not expect the jet engine to be

operated before someone had cleaned the objects in the duct. Thus, he planned to

cause only inconvenience and brief loss of use; and this Court refused to equate

that state of mind to an intent to injure the national defense.” Id. at 170. The

court expressed doubt that there was sufficient evidence of intent in the case

before it, but it remanded to the Air Force Court of Military Review to decide the

matter.

On remand the Air Force court affirmed the charge. It wrote: “We agree

that it is unlikely Ortiz intended or foresaw that his actions would damage the

aircraft extensively or cause it to be grounded for a long time. However, in our

view, this does not lead to the conclusion that the act was not actionable, nor does

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it indicate a lack of intent to harm national defense interests.” Ortiz II, 25 M.J. at

571. Although the court noted that the case before it was similar to Stewart in

several respects, it distinguished that case on the ground that Ortiz had operated

surreptitiously while Stewart had acted openly and “had revealed the potentially

damaging material before the engines were started.” Id. at 572.

We are unpersuaded that surreptitiousness is a requisite for violation of

§ 2155(a). One can do a great deal of damage to the national defense overtly, and

may well intend that damage. Of course, the overtness of an action may suggest

that the actor intends (as in Stewart) only a brief interference. But the intent (and

consequence) could certainly be a lengthy interference, and even a brief

interference could cause (and be intended to cause) significant injury. Recall that

the missile site visited by Defendants was to launch missiles on 15-minutes

notice.

On the other hand, we have no quarrel with the rationale attributed to

Stewart by Ortiz I—that § 2155(a) requires more than an intent “to cause only

inconvenience,” 24 M.J. at 170. In the case before us, however, the jury could

rationally find that Defendants intended—that is, they knew it to be practically

certain—that their conduct would cause substantial disruption to military

operations. Accordingly, we reject Defendants’ challenge to the sufficiency of

the evidence of intent.

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 B. Instructions

1. Standard of review

There are few strict rules regarding what subjects may be addressed in jury

instructions and how those instructions must be expressed, so long as the jury is

informed of what it must decide. Thus, "[w]e review the district court's decision

to give a particular jury instruction for abuse of discretion and consider the

instructions as a whole de novo to determine whether they accurately informed the

jury of the governing law." United States v. McPhilomy, 270 F.3d 1302, 1310

(10th Cir. 2001) (internal quotation marks omitted). In particular, “a defendant is

entitled to an instruction as to any recognized defense for which there exists

evidence sufficient for a reasonable jury to find in [her] favor.” United States v.

Haddock, 956 F.2d 1534, 1547 (10th Cir. 1992) (internal quotation marks

omitted).

2. Good-faith instruction

Defendants thought that the threat to use Minuteman III missiles

constituted a war crime. As Sister Gilbert testified, she left the book The

Criminality of Nuclear Deterrence, Could the U.S. War on Terrorism Go

Nuclear? “at the missile silo because it was the reason why I went to the missile

silo. It gave me a legal right to do what we did.” Tr. 727. Defendants contend

that “it was appropriate for the trial court to instruct the jury on the good faith

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defense as it relates to the interplay between § 2155 and the laws of war as that

interplay may have bearing on the Sisters’ intent.” Aplt. Reply Br. at 22.

As a general rule, however, ignorance of the law is no excuse—one is

guilty of the crime if she intends to engage in the conduct that is prohibited by the

criminal statute. No exception to that rule applies here. We are not persuaded by

Defendants’ argument that the district court erred in denying their request for a

jury instruction that they acted with a good-faith belief that their conduct was

lawful.

First, Defendants rely on a line of cases including United States v. Hopkins,

744 F.2d 716, 717 (10th Cir. 1984), in which this circuit has required good-faith

instructions requested by the defense. But these opinions are inapposite. They

are fraud cases, in which a good-faith belief in the truth of one’s representations

is incompatible with the statutorily required intent to defraud. Indeed, most

circuits have held that a good-faith instruction is redundant in such cases. See

United States v. Sirang, 70 F.3d 588, 594 (11th Cir. 1995) (collecting cases). We

are an outlier on this issue. See United States v. Overholt, 307 F.3d 1231, 1247

(10th Cir. 2002). In any event, our opinions in the fraud cases do not assist

Defendants because a good-faith belief in the legality of their actions would not

be inconsistent with the statutorily required intent to injure, interfere with, or

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obstruct the national defense. They could both intend to disrupt the missile

facility and believe that doing so was lawful.

Defendants also rely on recognized exceptions to the general rule that a

defendant’s legal error is irrelevant. They quote the following from a leading

treatise:

In actuality, the basic rule is extremely simple: ignorance or
mistake of fact or law is a defense when it negatives the existence of
a mental state essential to the crime charged. Indeed, it is so simple
because, unlike the other defenses discussed in this chapter, it is
merely a restatement in somewhat different form of one of the basic
premises of the criminal law. Instead of speaking of ignorance or
mistake of fact or law as a defense, it would be just as easy to note
simply that the defendant cannot be convicted when it is shown that
he does not have the mental state required by law for commission of
that particular offense.

Aplt. Br. at 44 (quoting Wayne R. LaFave & Austin W. Scott, Jr., Substantive

Criminal Law § 5.1, at 575-76 (1986) (internal footnotes omitted)).

We agree with the treatise, but we disagree with Defendants’ suggestion

that the proposition stated in the treatise applies here. The proposition is not that

one can assert innocence based on misunderstanding what conduct is prohibited

by the criminal statute. Rather, it is that a legal error may have prevented the

defendant from knowing that she had engaged in such conduct. The first category

of mistake of law, which encompasses situations described by the treatise as ones

“in which the defendant still had whatever mental state is required for

commission of the crime and only claims that he was unaware that such conduct

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was proscribed by the criminal law” does not “ordinarily . . . [provide] a

recognized defense.” 1 Wayne R. LaFave, Substantive Criminal Law § 5.6(d), at

406 (2d ed. 2003). The second category of mistake of law, “in which the

defendant [as a result of the mistake] lacks the mental state required for

commission of the crime” does provide “a valid defense.” Id. at 405. The treatise

provides a helpful illustration of the difference between these two categories:

[T]he crime of larceny is not committed if the defendant, because of
a mistaken understanding of the law of property, believed that the
property taken belonged to him; it is committed, however, if the
defendant believed it was lawful to take certain kinds of property
belonging to others because of the custom in the community to do so.
The requisite mental state (intent to steal) is lacking only in the first
of these two cases, for it is not the intent to violate the law but the
intentional doing the act which is a violation of law which is
proscribed.

Id. at 406-07 (internal quotation marks omitted). In other words, it is no defense

for the defendant to say that she did not know that the law prohibited taking other

people’s property. But it is a defense to say that she didn’t know the property she

took was owned by someone else.

Defendants’ mistake-of-law argument is that they believed that the

operations at the missile site violated treaties and other international law so that

their actions were legally justifiable. In other words, even if they did what was

prohibited by § 2155(a), they believed their actions to be lawful. This is the type

of mistake of law that only rarely provides a defense. Defendants do not

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demonstrate how their (mis)understanding of the law negates that they willfully

injured national-defense materials (or premises) or acted with intent to interfere

with national defense. Their purported belief that their conduct was lawful is

similar to the belief of a defendant who took the property of others knowing it

was their property but believing that it was lawful to take it.

One circumstance in which a person is excused from criminal responsibility

because of lack of knowledge of what the statute prohibits is when the alleged

offense is a violation of a complex regulatory scheme and the statute requires the

violation to be “willful.” “A defendant charged with a specific-intent, federal

criminal tax offense can negate the element of wilfulness necessary to prove the

violation, thereby providing a defense to the conduct charged, if the defendant

establishes that he or she sought in good faith to comply with the relevant law.”

United States v. Lindsay, 184 F.3d 1138, 1140 (10th Cir. 1999). The Supreme

Court long ago “interpreted the statutory term ‘willfully’ as used in the federal

criminal tax statutes as carving out an exception to the traditional rule [that

mistake of law is no defense.]” Cheek v. United States, 498 U.S. 192, 200 (1991).

It has explained that “[t]his special treatment of criminal tax offenses is largely

due to the complexity of the tax laws.” Id.

But Cheek drew a sharp distinction between a mistake of law negating

willfulness and a studied disagreement with the law. It held that “if Cheek

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asserted that he truly believed that the Internal Revenue Code did not purport to

treat wages as income, and the jury believed him, the Government would not have

carried its burden to prove willfulness, however unreasonable a court might deem

such a belief.” Id. at 202. On the other hand: “Claims that some of the

provisions of the tax code are unconstitutional . . . do not arise from innocent

mistakes caused by the complexity of the Internal Revenue Code. Rather, they

reveal full knowledge of the provisions at issue and a studied conclusion,

however wrong, that those provisions are invalid and unenforceable.” Id. at 205.

The Court did “not believe that Congress contemplated that such a taxpayer,

without risking criminal prosecution, could ignore the duties imposed upon him

by the Internal Revenue Code and refuse to utilize the mechanisms provided by

Congress to present his claims of invalidity to the courts and to abide by their

decisions.” Id. at 206. Thus, “a defendant’s views about the validity of the tax

statutes are irrelevant to the issue of willfulness and need not be heard by the

jury, and, if they are, an instruction to disregard them would be proper.” Id.

“Cheek was free in this very case to present his claims of invalidity and have

them adjudicated, but like defendants in criminal cases in other contexts, who

‘willfully’ refuse to comply with the duties placed upon them by the law, he must

take the risk of being wrong.” Id.

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 We doubt whether the Cheek mistake-of-law defense would apply to

§ 2155(a), which is hardly part of a complex regulatory scheme. But even if it

does, Defendants would not come within the exception. Their argument for a

good-faith instruction is not that they did not believe § 2155(a) encompassed their

conduct, but that § 2155(a) is invalid (as contrary to treaties and international

law) to the extent that it does encompass their conduct. Under the Cheek rule

such a claim of invalidity cannot create a mistake-of-law defense. Their recourse

would be to show in this court the invalidity of § 2155(a) in light of treaties and

other international law. Defendants have made no effort in this regard.

Other circuit courts have rejected international-law defenses. In

United States v. Allen, 760 F.2d 447 (2d Cir. 1985), antinuclear protesters entered

an Air Force base and damaged an airplane and several engines. Id. at 449. In

appealing their conviction under 18 U.S.C. § 1361 they argued “that the damaged

weapons systems were developed and deployed in violation of international law,”

id., and “their purpose was not to disobey or disregard the law, but rather to

uphold and enforce the Supreme law of the land—the Treaties and Charters to

which the United States is a party,” id. at 453 (internal quotation marks omitted).

The court rejected the defendants’ argument. It reasoned that “[a]lthough their

purpose may have been to uphold international law, their action disobeyed the

wholly independent federal law protecting government property,” and the

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defendants “should not be excused from the criminal consequences of acts of civil

disobedience simply because the acts were allegedly directed at international law

violations.” Id. Similar defenses have been rejected by the Eighth, Ninth, and

Eleventh Circuits. See Kabat, 797 F.2d at 590; United States v. May, 622 F.2d

1000, 1008-10 (9th Cir. 1980); United States v. Montgomery, 772 F.2d 733, 736-

38 ( 11th Cir. 1985).

The district court did not err in refusing to give a good-faith mistake-of-law

instruction.

3. Other jury instructions

In the section of their brief devoted to overbreadth and vagueness,

Defendants raise two additional jury-instruction contentions which appear

misplaced. We address them here. Defendants first complain that the district

court erred in how it instructed the jury on the elements of § 2155(a). Instruction

No. 17 begins:

The elements of Count 1 of the Indictment charging the crime
of Destruction of National-Defense Materials, National-Defense
Premises, or National-Defense Utilities are:

1. That the defendant;

2. in the State and District of Colorado, at or about the date and
place charged in Count 1 of the Indictment;

3. with intent to injure, interfere with, or obstruct the national
defense of the United States;

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 4. willfully injured, destroyed, or contaminated national defense
material or national defense premises; or
did willfully attempt to injure, destroy, or contaminate
national defense material or a national defense premises.

R. Vol. II, doc. 126. Defendants contend that it was error not to include the

conjunction and between elements (3) and (4). The contention is meritless. The

paragraph immediately following the listing of the elements states: “After

considering all the evidence, if you decide the government has proven each of the

elements of the crime beyond a reasonable doubt, then you should find the

defendant guilty of Count 1 . . . .” Id. The addition of and was unnecessary,

because the jury was clearly informed that it needed to find all four elements to

reach a guilty verdict.

Defendants also contend that the instructions erred by not adequately

relating § 2155(a) to “Sabotage,” the title of the chapter in which it is codified.

Although § 2155(a) does not mention sabotage, Defendants argued to the jury that

they had not committed sabotage. During its deliberations the jury asked for

clarification whether Defendants had been accused of sabotage. The district court

responded by referring the jury to Instruction No. 17, which sets forth the title

and elements of § 2155(a), but does not include the word sabotage. Defendants

complain that this response was erroneous. But, of course, it was not. The word

sabotage does not appear in the text of the statute and is not an element of the

offense. See United States v. Glover, 52 F.3d 283, 286 (10th Cir. 1995) (“[U]nder

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the general rules of statutory interpretation, the title to a statutory provision is not

part of the law itself, although it can be used to interpret an ambiguous statute.”).

To include the word sabotage within the jury instruction describing the elements

of the offense was certainly unnecessary, and probably would have been

improper.

C. Overbreadth and Vagueness

We repeat the pertinent language of § 2155(a):

Whoever, with intent to injure, interfere with, or obstruct the national
defense of the United States, willfully injures, destroys, [or]
contaminates . . . or attempts to so injure, destroy, [or]
contaminate . . . any national-defense material, or national-defense
premises, or national-defense utilities, shall be fined under this title
or imprisoned not more than 20 years, or both . . . .

A district-court jury instruction defined national defense as “a generic concept of

broad connotations referring to military establishments and the related activities

of national preparedness.” R. Vol. II, doc. 126, Jury Instruction No.16.

Defendants assert that this “definition of ‘national defense’ was

unconstitutionally vague and overbroad.” Aplt. Br. at 2. We first address

overbreadth and then vagueness.

1. Overbreadth

As we understand Defendants’ briefs, they argue that § 2155(a), as

interpreted in the district court’s jury instruction defining national defense, was

unconstitutionally overbroad for three reasons: (1) because it includes trivial

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activity on any property related to military activity and any injury, however slight,

to property on any military establishment; (2) because it protects unlawful

national-defense activities; and (3) because it is so broad that it is impossible to

differentiate between 18 U.S.C. § 2155(a) (destruction of national-defense

materials, premises, or utilities) and 18 U.S.C. § 1361 (depredation against any

government property). We reject each argument.

“Embedded in the traditional rules governing constitutional adjudication is

the principle that a person to whom a statute may constitutionally be applied will

not be heard to challenge that statute on the ground that it may conceivably be

applied unconstitutionally to others, in other situations not before the Court.”

Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). The overbreadth doctrine

creates an exception to this general rule by permitting litigants “to challenge a

statute not because their own rights of free expression are violated, but because of

a judicial prediction or assumption that the statute’s very existence may cause

others not before the court to refrain from constitutionally protected speech or

expression.” Id. at 612. “An overbroad statute is one that is designed to burden

or punish activities which are not constitutionally protected, but [that] includes

within its scope activities which are protected by the First Amendment.” 4

Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 20.8, at

263-64 (3d ed. 1999). The Supreme Court has “provided this expansive remedy

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out of concern that the threat of enforcement of an overbroad law may deter or

‘chill’ constitutionally protected speech—especially when the overbroad statute

imposes criminal sanctions.” Virginia v. Hicks, 539 U.S. 113, 119 (2003). The

overbreadth doctrine “suspend[s] all enforcement of an overinclusive law [in

order to reduce the] social costs caused by the withholding of protected speech.”

Id. “Many persons, rather than undertake the considerable burden (and sometimes

risk) of vindicating their rights through case-by-case litigation, will choose simply

to abstain from protected speech—harming not only themselves but society as a

whole, which is deprived of an uninhibited marketplace of ideas.” Id. (internal

citation omitted). See also Laurence H. Tribe, American Constitutional Law § 12-

27, at 1023 (2d ed. 1988) (“That judges will ultimately rescue those whose

conduct in retrospect is held protected is not enough, for the value of a sword of

Damocles is that it hangs—not that it drops.” (internal quotation marks omitted)).

Nevertheless,

[r]arely, if ever, will an overbreadth challenge succeed against a law
or regulation that is not specifically addressed to speech or to
conduct necessarily associated with speech (such as picketing or
demonstrating). Applications of [such a law or regulation] that
violate the First Amendment can still be remedied through as-applied
litigation . . . .

Hicks, 539 U.S. at 124. The Supreme Court has warned that the application of the

overbreadth doctrine is "strong medicine" and it is to be employed "sparingly and

only as a last resort." Broadrick, 413 U.S. at 613. “[P]articularly where conduct

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and not merely speech is involved, . . . the overbreadth of a statute must not only

be real, but substantial as well, judged in relation to the statute's plainly

legitimate sweep.” Id. at 615. Accord Hicks, 539 U.S. at 119-20 (“a law’s

application to protected speech [must] be ‘substantial,’ not only in an absolute

sense, but also relative to the scope of the law’s plainly legitimate applications”).

Defendants repeatedly characterize their argument as an “overbroad as

applied” challenge to the district court’s definition. Aplt. Br. at 20. The “as

applied” language might suggest that they are actually arguing that the application

of the statute to them violated their First Amendment rights. But they do not

develop such an argument in their briefs. Rather, they seem to be contending that

the statutory language, as interpreted in the district court’s jury instructions

(hence, in their view, “as applied”), is overbroad. This contention, which

amounts to a facial challenge, is what we proceed to address.

Defendants’ first argument is that the statute, as construed by the district

court, is overbroad because it prohibits trivial activity or an intent to cause only

slight injury. The crucial inquiry, however, is not the seriousness of the activity

but whether it is constitutionally protected. The punishment of minor offenses in

itself does not render a statute unconstitutionally overbroad. Perhaps it is unwise

to punish minor vandalism under § 2155(a), but vandalism is hardly protected

activity. Accordingly, we can (and must) reject this argument without any need to

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proceed to the next step of the overbreadth inquiry—whether the protected

activity is too likely to be chilled by the allegedly overbroad statute.

Defendants’ second “overbreadth” argument fails for a similar reason.

They complain that included within the statute’s definition of national defense are

facilities that they contend are illegal. Even assuming that some facilities violate

the law, we are unaware of any constitutional privilege of private citizens to

injure or interfere with such facilities.

Defendants’ final “overbreadth” argument is essentially that the district

court’s construction of § 2155(a) is so broad that it swallows 18 U.S.C. § 1361,

the statutory prohibition against injuring government property. We fail to see

how the overbreadth doctrine is implicated when one statute supplants another.

But in any event, Defendants’ premise is mistaken. The two statutes are distinct.

Section 2155(a) requires the “intent to injure, interfere with, or obstruct the

national defense.” Section 1361, in contrast, punishes “[w]hoever willfully

injures or commits any depredation against any property of the

United States . . .”; it does not require a specific intent to harm the “national

defense.” Consequently, for example, a person who damaged property of the

United States without knowledge that it was associated with national defense

could be punished under § 1361 but not § 2155(a). The district court’s definition

of national defense did not render the two statutes indistinguishable.

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 Defendants’ “overbreadth” arguments must be rejected.

2. Vagueness

Defendants similarly contend that § 2155(a), as interpreted by the district

court’s instruction defining national defense, is unconstitutionally vague. “As

generally stated, the void-for-vagueness doctrine requires that a penal statute

define the criminal offense with sufficient definiteness that ordinary people can

understand what conduct is prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352,

357 (1983). “A statute can be void for vagueness not only on its face, but as

applied, as a result of ‘an unforeseeable and retroactive judicial expansion of

narrow and precise statutory language.’” United States v. Protex Indus., Inc., 874

F.2d 740, 743 (10th Cir. 1989) (quoting Bouie v. City of Columbia, 378 U.S. 347,

352 (1964)). The Constitution does not, however, impose “[i]mpossible standards

of specificity.” Jordan v. De George, 341 U.S. 223, 231 (1951). “Courts should

remain ever mindful that ‘general statements of the law are not inherently

incapable of giving fair and clear warning.’” Welch, 327 F.3d at 1094 (quoting

United States v. Lanier, 520 U.S. 259, 271 (1997)).

Whether a district court’s interpretation of a statute renders it

unconstitutionally vague as applied is a question of law that we review de novo.

Protex Indus., Inc., 874 F.2d at 743. “When considering a vagueness challenge to

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a penal statute, courts begin with the presumption that the statute comports with

the requirements of federal due process and must be upheld unless satisfied

beyond all reasonable doubt that the legislature went beyond the confines of the

Constitution.” Welch, 327 F.3d at 1094 (internal quotation marks omitted).

“[J]udicial review of a penal statute generally is restricted to consideration

of the statute as applied in a particular case, provided the statute does not threaten

to chill the exercise of constitutional rights.” Id. Thus, ordinarily “‘[o]ne to

whose conduct a statute clearly applies may not successfully challenge it for

vagueness.’” United States v. Day, 223 F.3d 1225, 1228 (10th Cir. 2000)

(quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 495 n.7 (1982)).

Defendants’ vagueness challenge cannot surmount these hurdles. We start

with Gorin v. United States, 312 U.S. 19 (1941), in which the Supreme Court

defined the term national defense as used in the Espionage Act of 1917 as “a

generic concept of broad connotations, referring to the military and naval

establishments and the related activities of national preparedness.” Id. at 28

(internal quotation marks omitted). The defendants had been convicted of

obtaining and delivering documents “connected with” or “relating to” the

“national defense,” id. at 22 & n.1, with the “intent or reason to believe that the

information to be obtained is to be used to the injury of the United States, or to

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the advantage of any foreign nation,” id. at 27-28 (internal quotation marks

omitted). The Court addressed whether the Espionage Act violated due process

because of the indefiniteness of the meaning of national defense. Id. at 27-28. In

affirming the above definition the Court found “no uncertainty in this statute

which deprives a person of the ability to predetermine whether a contemplated

action is criminal under the provisions of this law,” id. at 27, and expressed its

“view that the use of the words ‘national defense’ has given them, as here

employed, a well understood connotation.” Id. at 28. See Jordan, 341 U.S. at

231 n.15 (citing Gorin for the proposition that the phrase “connected with or

related to the national defense” had “survived attack under the vagueness

doctrine”).

Although here we are dealing with a different statute, the two statutes are

so similar that Gorin is compelling authority. Indeed, we note that in the one

court-of-appeals decision addressing a conviction under § 2155(a), no vagueness

challenge was raised. See Kabat, 797 F.2d at 582. We see no reason to

distinguish Gorin from our case.

To begin with, the conduct prosecuted in this case—disrupting a nuclear-

missile installation—clearly comes within the statute’s reach. Even if the

boundary of “national defense” is uncertain, nuclear weapons are far from the

boundary. See LaHue, 261 F.3d at 1005 (“[D]efendants’ conduct is the very

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conduct contemplated by the Act, and they cannot successfully challenge the Act

for vagueness as to fair notice.”).

Second, insofar as Defendants are contending that the statute (as interpreted

by the district court) should be stricken as vague because the boundary of the

statute is unclear, they must fail because they have not even suggested, much less

shown, that conduct at the boundary is likely to be constitutionally protected. See

Welch, 327 F.3d at 1094 (when application of statute to facts of case is clear,

statute can be stricken as vague only if it “threaten[s] to chill the exercise of

constitutional rights”). There may be an expressive component to Defendants’

actions, but the risk of chilling expression is no greater than with respect to any

other statute prohibiting actions harmful to the federal government. Thus, there is

no ground for a facial vagueness attack on the statute. Cf. City of Chicago v.

Morales, 527 U.S. 41, 60 (1999) (invalidating on its face a “loitering” ordinance

that “reach[ed] a substantial amount of innocent conduct”); Herndon v. Lowry,

301 U.S. 242, 261 (1937) (striking an incitement statute on ground of vagueness);

1 Wayne R. LaFave, Substantive Criminal Law § 2.3(d), at 151-53 (2d ed. 2003)

(courts apply stricter standard for statutory vagueness in the area of First

Amendment rights.).

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 We reject Defendants’ claim that the district court’s definition of national

defense rendered § 2155(a) unconstitutionally vague. See United States v.

Melville, 309 F. Supp. 774, 780-81 (S.D.N.Y. 1970).

D. Statutory Construction

At oral argument, counsel for Defendants presented their overbreadth and

vagueness contentions rather differently than in their briefs. Counsel spoke in

terms of statutory construction rather than constitutional law, insisting that the

district court’s definition of national defense was simply broader than what

Congress intended. He noted, for example, the severity of the potential

punishment under § 2155(a)—20 years’ imprisonment—and asserted that

Congress could not have desired such a penalty for an infraction as minor as

Defendants’. We need not concern ourselves with whether this argument was

adequately preserved in Defendants’ briefs to this court, because it can be readily

disposed of on the merits.

The district court’s definition of national defense is taken directly from

Supreme Court authority. Gorin, 312 U.S. at 28, states: “National defense, the

Government maintains, ‘is a generic concept of broad connotations, referring to

the military and naval establishments and the related activities of national

preparedness.’ We agree that the words ‘national defense’ in the Espionage Act

carry that meaning.” Section 2155 was not at issue in Gorin, but we see no

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reason why national defense would have a different meaning in these two statutes

with similar purposes. See Kabat, 797 F.2d at 586 (adopting Gorin definition in

§ 2155(a) prosecution). Defendants are concerned about the broad scope of that

definition, but there is every reason to believe that Congress, perhaps to avoid any

loopholes, intended a broad scope. For example, the terms national-defense

material and national-defense premises in § 2155(a) are defined as follows in 18

U.S.C. § 2151:

The words “national-defense material” include arms,
armament, ammunition, livestock, forage, forest products and
standing timber, stores of clothing, air, water, food, foodstuffs, fuel,
supplies, munitions, and all other articles of whatever description and
any part or ingredient thereof, intended for, adapted to, or suitable
for the use of the United States in connection with the national
defense or for use in or in connection with the producing,
manufacturing, repairing, storing, mining, extracting, distributing,
loading, unloading, or transporting of any of the material or other
articles hereinbefore mentioned or any part or ingredient thereof.

The words “national-defense premises” include all buildings,
grounds, mines, or other places wherein such national-defense
material is being produced, manufactured, repaired, stored, mined,
extracted, distributed, loaded, unloaded, or transported, together with
all machinery and appliances therein contained; and all forts,
arsenals, navy yards, camps, prisons, or other installations of the
Armed Forces of the United States.

Of course, whenever a criminal statute has such a broad scope, some

prohibited activities may be much less reprehensible than others. The maximum

permissible sentence is designed for the most reprehensible offenses. The least

reprehensible may be excused as a matter of prosecutorial discretion or may

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receive lighter sentences from the court. We would be ignoring this reality if we

were to say that a statute was not intended to encompass conduct deserving

significantly less than the maximum permissible sentence. Perhaps courts should

recognize an exception to § 2155(a) for de minimis conduct. But Defendants’

actions cannot be so characterized.

In short, we reject Defendants’ argument that the district court

misconstrued § 2155(a).

III. CONCLUSION

Defendants’ convictions and sentences are AFFIRMED.

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