UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-10707
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
WILLIAM LEE MONROE,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of Texas
June 7, 1999
Before JONES, DUHÉ, and BARKSDALE, Circuit Judges
DUHÉ, Circuit Judge:
A jury convicted William Monroe under 18 U.S.C. § 844(i) for
maliciously damaging by means of fire or an explosive a building
used in interstate commerce. Monroe appeals, contending: (1)
malice requires an intent to start the fire; (2) insufficient
evidence of malice; (3) improper jury instructions; (4) the
unconstitutionality of § 844(i) as applied to him; (4) reversible
error from the district judge’s failure to recuse. We affirm.
Monroe stole a gas stove from his apartment when he moved out.
Gas seeping from the stove’s unstopped gas line caused an explosion
the next morning, extensively damaging the apartment building and
injuring two people.
Monroe described his actions on the night he stole the stove.
He shut off the gas at the valve and disconnected the flexhose
while an accomplice bled gas out of the burners. When Monroe
attempted to install the stove in his new apartment, he realized he
needed a fitting for the shutoff valve. He and his accomplice
returned to the old apartment to remove the fitting. When he tried
to remove the fitting, the whole shutoff valve twisted off. Monroe
took the entire valve. Monroe’s accomplice soon felt lightheaded.
Monroe told the Bureau of Alcohol, Tobacco and Firearms
Special Agent: “I’ve worked with natural gas before and I know
that it is very explosive but I did not think it would build up
like it did. I thought I could leave the door open about an inch
and it would ventilate enough to keep anything from happening. I
didn’t intend for anyone to get hurt.”
Evidence shows that Monroe asked a coworker how to plug the
flexline on a stove to prevent gas leakage. His coworker informed
him that turning the shutoff valve off would prevent leaking.
Evidence also shows that a hardware store across the street from
the apartment building sold for approximately $2 plugs that would
have stopped the gas flow.
The government prosecuted Monroe under 18 U.S.C. § 844(i) for
“maliciously damag[ing] or destroy[ing] . . . by means of fire or
an explosive, any building . . . used in interstate or foreign
commerce or in any activity affecting interstate or foreign
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commerce . . . .” 18 U.S.C.A. § 844(i) (West Supp. 1999). Monroe
stipulated to everything except “maliciously.” The jury convicted
him, and he appeals.
THE MEANING OF MALICIOUSLY UNDER § 844(i)
Monroe contends that the plain meaning, legislative history,
federal case law, and the common law of arson all require that a
defendant intentionally cause an explosion or fire to be convicted
under § 844(i). However, “maliciously” for purposes of § 844(i)
means “acting ‘intentionally or with willful disregard of the
likelihood that damage or injury would result.’” United States v.
Corona, 108 F.3d 565, 571 (5th Cir. 1997) (quoting United States v.
Gullett, 75 F.3d 941, 947 (4th Cir. 1996)). Intent is sufficient
but not necessary for a conviction under § 844(i).
SUFFICIENCY OF THE EVIDENCE CONCERNING MALICE
Monroe contends that the evidence is insufficient to prove he
intended to start a fire. We review challenges to the sufficiency
of the evidence to “determine whether a rational trier of fact
could have found that the evidence established guilt beyond a
reasonable doubt.” United States v. Millsaps, 157 F.3d 989, 994
(5th Cir. 1998). We view all evidence and any inferences therefrom
in the light most favorable to the government. See id. The
evidence need not exclude every reasonable hypothesis of innocence
or be wholly inconsistent with every conclusion except guilt. See
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United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995). In
addition, “[i]t is the sole province of the jury, and not within
the power of this Court, to weigh conflicting evidence and evaluate
the credibility of witnesses.” United States v. Ivey, 949 F.2d
759, 767 (5th Cir. 1991).
The evidence is sufficient if Monroe “acted in willful
disregard of the likelihood” of damaging the apartment building.
Corona, 108 F.3d at 571 (defining “maliciously” as “acting
‘intentionally or with willful disregard of the likelihood that
damage or injury would result.’”). Monroe admitted he had worked
with natural gas before. In addition, Monroe asked in advance
about plugging the gas line, indicating awareness of the dangers
associated with leaking gas. Monroe removed the entire shutoff
valve. Shortly thereafter, his accomplice became lightheaded,
indicating that gas was leaking. Monroe made no attempt to plug
the leak, although a plug would have cost only about $2. Monroe
contends that he believed leaving the door ajar would adequately
ventilate the apartment; that he lived with a leaking gas line that
never exploded; and that he is borderline mentally handicapped.
Viewing the evidence and the inferences therefrom in the light most
favorable to the government, a rational juror could have found that
the evidence established beyond a reasonable doubt that Monroe
acted with a willful disregard of the likelihood of damage.
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REQUESTED JURY INSTRUCTIONS
The jury instructions defined maliciously as “intentionally or
with willful disregard of the likelihood that damage would result
from his acts.” Monroe challenges the district court’s failure to
instruct the jury that malice required: (1) the intent to start a
fire; (2) more than negligence; (3) more than recklessness; (4) a
near certainty that the building would be damaged; (5) an evil
intent; and (6) proof that the fire was not an accident.
District courts have substantial latitude in formulating jury
charges. See United States v. Webster, 162 F.3d 308, 321 (5th Cir.
1998). Thus, we review challenges to jury instructions and
refusals to give jury instructions for abuse of discretion. See
id. at 321-22. A refusal to give a requested instruction
constitutes reversible error only if: (1) the requested instruction
is substantially correct; (2) the actual charge given to the jury
did not substantially cover the content of the proposed
instruction; and (3) the omission of the instruction would
seriously impair the defendant’s ability to present his defense.
United States v. Jensen, 41 F.3d 946, 953 (5th Cir. 1994).
The judge did not commit reversible error by refusing to give
Monroe’s requested instructions. First, Monroe’s requested
instructions that malice required intent to start the fire, near
certainty that the building would be damaged, evil intent, and
proof that the fire was not an accident do not correctly state the
law. See Corona, 108 F.3d at 571 (defining maliciously, as at
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common law, as including “wanton and willful burnings without
justification or excuse”). Second, the district judge’s definition
of “maliciously” as “with willful disregard of the likelihood that
damage would result” substantially covered Monroe’s requested
instructions that malice requires more than negligence or
recklessness.
Alternatively, Monroe argues that the government reversibly
erred by misstating the elements of the offense in its closing
argument. The government in its closing argument defined
maliciously as in the jury instruction, then summarized the test as
whether Monroe was negligent. Monroe objected to that
characterization. The judge immediately told the jurors that the
legal instructions issued by the judge govern their decision, and
instructed them to disregard any inconsistent statements by the
lawyers. The judge then ordered the government to restate its
argument. The government then again defined maliciously as in the
jury instructions. Finally, the judge properly defined maliciously
in the jury instructions.
The government’s improper statement in a closing argument
constitutes reversible error when it affects a defendant’s
substantial rights. See United States v. Vaccaro, 115 F.3d 1211,
1215 (5th Cir. 1997). We weigh the magnitude of the prejudicial
effect of the statements, the efficacy of any cautionary
instruction, and the strength of the evidence of the defendant’s
guilt in determining whether a substantial right has been affected.
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See id. The government’s misstatement does not constitute
reversible error. The judge’s contemporaneous instruction to the
jurors that they should follow his legal instructions and disregard
any inconsistent legal instructions proffered by the lawyers,
followed immediately by the government properly redefining
“maliciously,” limited any prejudicial effect.
§ 844(i): UNCONSTITUTIONALLY VAGUE AS APPLIED
Monroe argues that § 844(i) is unconstitutionally vague as
applied to him, because it does not provide fair notice of its
applicability to one who neither intended to harm a building nor
intended to cause an explosion. We review whether a statute is void
for vagueness de novo. See United States v. Nevers, 7 F.3d 59, 61
(5th Cir. 1993). “[T]he 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).
Section 844(i) prohibits “maliciously damag[ing] or
destroy[ing] . . . by means of fire or an explosive, any building
. . . .” 18 U.S.C.A. § 844(i) (West Supp. 1999). “Section 844(i)
uses the word ‘maliciously’ in the same way that common-law courts
used it: acting ‘intentionally or with willful disregard of the
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likelihood that damage or injury would result.’” Corona, 108 F.3d
at 571. Monroe removed a valve on a gas pipe, causing gas to spew
into the apartment. Although he was familiar with the dangers
associated with natural gas and he was aware that gas was leaking,
he made no attempt to stop the gas flow. An ordinary person would
understand that such conduct willfully disregarded the likelihood
that damage or injury would result, and therefore was malicious.
As a result, § 844(i) as applied to Monroe is not constitutionally
vague.
FAILURE TO RECUSE
Monroe was indicted in October 1997, approximately seven weeks
after his public defender had testified against Judge McBryde in
Judicial Council proceedings. Monroe moved for recusal on these
grounds prior to trial, but Judge McBryde denied the motion. The
jury convicted Monroe in January 1998. However, before Judge
McBryde sentenced Monroe, the Judicial Council issued an order
preventing Judge McBryde’s involvement for a period of three years
in any case involving a lawyer who had testified against him in
Council proceedings. As a result, Monroe’s case was transferred to
Judge Maloney for sentencing.
Under 28 U.S.C. § 455(a), “[a]ny . . . judge . . . shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a) (1993). We
review the denial of a motion to recuse for abuse of discretion.
See United States v. Anderson, 160 F.3d 231, 233 (5th Cir. 1998).
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In determining whether to vacate an order issued after a judge
should have recused himself, we apply harmless error analysis. See
United States v. O’Keefe, 128 F.3d 885, 892 (5th Cir. 1997). We
examine: (1) the risk of injustice to the parties in the particular
case; (2) the risk that denial of relief will produce injustice in
other cases; and (3) the risk of undermining the public’s
confidence in the judicial process. See id.
Monroe contends that the district judge made several
discretionary decisions, which, even if not reversible error in and
of themselves, create an impression of partiality. Specifically,
the judge: refused to instruct the jury that malice requires more
than mere negligence, in spite of the government’s comment to the
contrary in its closing argument; admitted inflammatory images of
the results of the explosion, although Monroe stipulated to
everything except “malice;” admitted a statement by Monroe
professing his innocence over a relevancy objection. It is
doubtful that these “impressions of partiality” would support
Monroe’s contention that the judge should have recused himself.
However, even assuming the judge abused his discretion by refusing
to recuse, Monroe does not prove, or even argue, actual harm to
himself, to others, or to the public’s confidence in the judicial
system. Therefore, we need not vacate and remand for a new trial.
AFFIRMED
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