APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA, (D.C. Crim. 85-00268)
BEFORE: GIBBONS, Chief Judge, SEITZ and ALDISERT, Circuit Judge.
Randall McFadden appeals a judgment of sentence. We have jurisdiction under 28 U.S.C. § 1291 (1982).
McFadden entered a conditional guilty plea to certain counts of a multi-count indictment. Three issues are raised on appeal.*fn1 We consider these issues in turn.
McFadden and his counsel contend that McFadden did not possess the requisite mental state to violate 18 U.S.C. § 844(f) (1982 and Supp. III 1985), as charged in Count II of the indictment. Our review of this issue is plenary.*fn2
Section 844(f) provides, in relevant part:
Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of an explosive, any building, vehicle, or other personal or real property in whole or in part, owned, possessed, or used by, or leased to, the United States, any department or agency thereof, or any institution or organization receiving Federal financial assistance shall be imprisoned for not more than ten years, or fined not more than $10,000 or both. . ..
(emphasis added). McFadden placed an explosive device in the mail with the intent to kill Janet Sczudlo. The device exploded prior to delivery at a United Post Office in Warrendale, PA. McFadden and counsel argue that because he intended to blow up Sczudlo, and not the post office he did not "maliciously" damage or destroy government property within the meaning of Section 844(f).
In construing the term "maliciously" in Section 844(f), the following principles of statutory construction are pertinent. "Generally, when Congress uses a common law term in a federal criminal statute without otherwise defining it, Congress is presumed to adopt the meaning given to that term at common law." United States v. Everett, 700 F.2d 900, 904 (3rd Cir. 1983). In addition, "if Congress uses a term in a criminal statute which has no widely accepted common law meaning at the time of enactment, the term should be given the meaning consistent with the purpose of the enactment and its legislative history." Id. However, "even if the word had a generally accepted common law meaning, the courts will not impose that meaning if there are 'grounds for inferring an affirmative instruction from Congress' to define it otherwise." Id., quoting Morissette v. United States, 342 U.S. 246, 273, 96 L. Ed. 288, 72 S. Ct. 240 (1952). Thus, we must determine the common law meaning of the term "maliciously," and Congressional intent in enacting Section 844(f).
At common law, one acts "maliciously" if he acts intentionally or with willful disregard of the likelihood that damage or injury will result. C. Torcia, Wharton's Criminal Law, §§ 137, 486 (14th Ed. 1979); R. Perkins and R. Boyce, Criminal Law, 856-861 (3rd Ed. 1982). Relying on portions of the legislative history of the Organized Crime Control Act of 1970 and the Explosives Control Act for the proposition that Congress sought to eliminate the specific intent requirement of an earlier statute when it enacted Section 844(f), the government argues that Section 844(f) adopts the common law standard. Specifically, the government cites the testimony of Will R. Wilson, Assistant Attorney General of the Criminal Division of the Department of Justice, see "Explosives Control Act," Hearings Before Subcommittee No. 5, House Committee on the Judiciary, 91st Cong., 2nd Sess., 36, and the comments of Congressman Wiley Mayne of Iowa, see id. at 117.
We believe the government's reliance on this testimony and the comments is misplaced. Wilson's testimony and Mayne's comments addressed the revision of former Section 837(b) of Title 18. Following adoption of the changes in the intent requirement suggested in the testimony and comments, former Section 837(b) was reenacted as current Section 844(d). Section 844(f), on the other hand, was an entirely new provision, adopted as part of the Organized Crime Control Act of 1970. See H. R. Rep. No. 91-1549, 91st Cong., 2nd Sess., (1970), reprinted in 1970 United States Code Congressional and Administrative News 4007, 4046. The evolution of Section 844(d) has no bearing on the question before us.
Our own review of the legislative history of Section 844(f), however, leaves us unconvinced that Congress intended to adopt a meaning of "maliciously" other than the common law usage. There is no indication that Congress intended to employ some other meaning of the term. The House Report makes clear that Congress intended to permit prosecution under Section 844(f) unless damage to government property occurs accidentally. See H.R. Rep. No. 91-1549 at , 1970 United States Code Congressional and Administrative News at 4046. Accidental damage is ordinarily inflicted ...