VINTON BEDONIE, PETITIONER V. UNITED STATES OF AMERICA No. 90-6221 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States OPINION BELOW The opinion of the court of appeals (Pet. App. 1-45) is reported at 913 F.2d 782. JURISDICTION The judgment of the court of appeals was entered on August 24, 1990. A petition for rehearing was denied on September 14, 1990. The petition for a writ of certiorari was filed on November 13, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the district court had jurisdiction over the prosecution of petitioner for first degree murder committed in the perpetration of arson. 2. Whether jury unanimity was required with resepct to the type of first degree murder petitioner committed. STATEMENT After a jury trial in the United States District Court for the District of Utah, petitioner was convicted on two counts of first degree murder, in violation of 18 U.S.C. 1111(a) and 1153, and two counts of using a firearm during a crime of violence, in violation of 18 U.S.C. 924(c) and 1153. He was sentenced to concurrent terms of life imprisonment on the murder counts and consecutive terms of five years' imprisonment on the firearms counts. The court of appeals affirmed. Pet. App. 1-45. 1. On December 4, 1987, petitioner, a member of the Navajo Indian Tribe, attended a bonfire party on the Navajo Indian Reservation in southeastern Utah. After a Navajo police officer, Roy Lee Stanley, arrived at the bonfire in his police truck, a fight broke out among Stanley, petitioner, and several other men. Officer Stanley was ultimately overcome and placed in handcuffs. Witnesses later testified that after the fight they heard gunshots and saw petitioner carrying a gun. Pet. App. 3. Soon after the fight, a second Navajo police officer, Andy Begay, arrived in his police truck. Petitioner pointed a gun at Begay and forced him behind his vehicle. Petitioner and the other men then drove the officers and their trucks to a remote area of the reservation, doused the trucks with gasoline, and set them on fire. The charred bodies of officers Stanley and Begay were found in one of the trucks the next morning. Pet. App. 4-5; Gov't C.A. Br. 18-29. 2. An indictment returned in April 1988 charged petitioner with two counts of first degree murder, in violation of 18 U.S.C. 1111(a) and 1153, /1/ and two counts of using a firearm during a crime of violence, in violation of 18 U.S.C. 924(c) and 1153. Pet. App. 2-3. At petitioner's trial, the district court instructed the jury on the elements of both first degree premeditated murder and first degree murder committed in the perpetration of arson. In connection with its instruction on arson-murder, the court told the jury that "(a) person is guilty of arson if . . . by means of fire or explosives, he unlawfully and intentionally damages the property of another." /2/ Pet. App. 8-9. The jury convicted petitioner on all four counts of the indictment. Pet. App. 6. 3. On appeal, petitioner contended that the district court lacked jurisdiction to try him for first degree murder committed in the perpetration of arson. He argued that in a prosecution for arson-murder under 18 U.S.C. 1111(a) and 1153, arson must be defined by reference to the federal arson statute, 18 U.S.C. 81, and that Section 81 does not apply to the burning of motor vehicles. /3/ Petitioner also contended that he was deprived of his right to a unanimous verdict because the jurors were not instructed that they must agree on which type of first degree murder he committed. The court of appeals rejected both contentions and affirmed petitioner's conviction. Pet. App. 1-45. With respect to the jurisdictional issue, the court agreed with petitioner that in a prosecution under Section 1111(a) for first degree murder committed in the perpetration of arson, the applicable definition of arson was provided by the federal arson statute, 18 U.S.C. 81. Pet. App. 10-12. /4/ The court rejected petitioner's claim that Section 81 did not apply to this case, however. Pet. App. 12-14. Observing that Section 81 defines "arson" to include the burning of "any machinery," the court determined that "the plain and ordinary language of Section 81 criminalizes the burning of a motor vehicle." Pet. App. 13. The court accordingly held that the district court had jurisdiction over the prosecution of petitioner for arson-murder. Pet. App. 15. /5/ The court of appeals also rejected petitioner's claim that he was denied the right to a unanimous verdict. Pet. App. 18-23. The court concluded that the district court's use of a general unanimity instruction was sufficient in this case. Pet. App. 21. The court observed that uncontradicted evidence at trial established that officers Stanley and Begay were killed by the burning of their vehicles. Ibid. Therefore, the court reasoned, "even if the evidence permitted the jury to be split as to the theory underlying the first-degree murder conviction, the elements of arson-murder would necessarily have been established in the minds of all twelve jurors." Pet. App. 23. /6/ ARGUMENT 1. Petitioner renews his contention (Pet. 10-14) that 18 U.S.C. 81 does not proscribe the arson he committed -- the burning of a motor vehicle -- and that the district court therefore lacked jurisdiction over his prosecution for first degree murder committed in the perpetration of that arson. The court of appeals correctly rejected that argument. As the court recognized, the language of Section 81 indicates that it forbids the burning of motor vehicles. Section 81 proscribes the burning of "any machinery," and the ordinary meaning of "machinery" includes motor vehicles. See Webster's New World Dictionary of the American Language 848 (2d college ed. 1986) (defining "machinery" as "the working parts of a machine" and "machine" as "a vehicle"). Petitioner points to nothing in the language or history of the statute that would require a different understanding of these terms. /7/ Petitioner also asserts (Pet. 11-14) that the district court's failure to incorporate the language of Section 81 in its instruction to the jury on arson, to which no objection was made at trial, constituted plain error. See Fed. R. Crim. P. 52(b). The plain error rule can be used "to correct only 'particularly egregious errors,' those errors that 'seriously affect the fairness, integrity or public reputation of judicial proceedings'" and that "ha(ve) an unfair prejudicial impact on the jury's deliberations." United States v. Young, 470 U.S. 1, 15, 17 n.14 (1985) (citations omitted). Petitioner claims (Pet. 13) that he suffered prejudice because, if the jurors had heard the language of Section 81, they might have interpreted the statute to exclude the burning of motor vehicles. This argument mistakes the proper role of the jury. Construction of the law applicable in a criminal case is the function of the court, not the jury. See Berra v. United States, 351 U.S. 131, 134 (1956); Sparf v. United States, 156 U.S. 51, 102 (1895). Petitioner suffered no cognizable prejudice merely because the jury lacked an opportunity to arrogate to itself a judicial role. For these reasons, the court of appeals correctly concluded that petitioner suffered no prejudice from any error in the district court's instruction to the jury. 2. Petitioner also contends (Pet. 14-20) that to convict him of first degree murder the jurors were required to agree unanimously on the type of first degree murder he committed -- premeditated murder or felony murder. Although we believe that the court of appeals was correct in rejecting this contention, we acknowledge that petitioner's contention raises the same issue as is now before the Court in Schad v. Arizona, No. 90-5551 (cert. granted Oct. 9, 1990). Accordingly, with respect to this issue, the Court should hold the petition pending the decision in Schad. CONCLUSION As to the claim that petitioner was improperly denied a unanimous jury verdict, the petition should be held pending the Court's decision in Schad v. Arizona, No. 90-5551 (cert. granted Oct. 9, 1990), and then disposed of as appropriate in light of that decision. In all other respects, the petition should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney JANUARY 1991 /1/ 18 U.S.C. 1111(a) provides in pertinent part: Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by * * * willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson * * * is murder in the first degree. 18 U.S.C. 1153 provides in pertinent part: (a) Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, * * * (or) arson * * * within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. 18 U.S.C. 1153(a). /2/ This instruction tracked the language of the Utah arson statute. See Utah Code Ann. 76-6-102(1)(b). /3/ 18 U.S.C. 81 provides: Whoever, within the special maritime and territorial jurisdiction of the United States, willfully and maliciously sets fire to or burns, or attempts to set fire to or burn any building, structure, or vessel, any machinery or building materials or supplies, military or naval stores, munitions of war, or any structural aids or appliances for navigation or shipping, shall be fined not more than $1,000 or imprisoned not more than five years, or both. /4/ There is some language in the court's discussion of this issue suggesting that 18 U.S.C. 81 is the only federal statute that would apply to a prosecution under 18 U.S.C. 1111. See Pet. App. 12. We do not agree with that suggestion, because there are several federal statutes in addition to Section 81 that may apply in such prosecutions. See, e.g., 18 U.S.C. 32 (arson in destruction of aircraft); 18 U.S.C. 33 (arson in destruction of interstate motor vehicles); 18 U.S.C. 844(f) (arson in destruction of certain kinds of property owned by government or by organizations financed by the government); 18 U.S.C. 844(h) (arson in commission of federal felony); and 18 U.S.C. 844(i) (arson in destruction of certain property used in interstate commerce). The court's suggestion, in any event, was clearly inadvertent, since the issue before it concerned the applicability of only one federal statute, Section 81. /5/ Addressing "two additional issues not raised by the parties," the court concluded that the indictment was sufficient to state an offense, and that the district court's instruction to the jury on the elements of arson, which followed the language of the Utah arson statute rather than that of the federal statute, did not constitute plain error. Pet. App. 15-18. /6/ The court also observed that "(t)here was no evidence presented from which the jury could have concluded that (petitioner) killed Stanley and Begay without premeditation." Pet. App. 22. /7/ Petitioner relies (Pet. 11, 13) on United States v. Banks, 368 F. Supp. 1245 (D.S.D. 1973). The court in Banks based its conclusion that Section 81 is inapplicable to motor vehicles on an incorrect application of the rule of ejusdem generis. See id. at 1248. That rule provides that "where general words follow an enumeration of specific items, the general words are read as applying only to other items akin to those specifically enumerated." Harrison v. PPG Indus., Inc., 446 U.S. 578, 588 (1980); see United States v. Powell, 423 U.S. 87, 91 (1975). The rule does not apply here, because the general term "any machinery" follows terms that are equally general namely, "any building, structure or vessel."