United States v. Denny Turpin, United States of America v. Jonathan Smith ( 1995 )

Affirmed by published opinion. Judge MICHAEL wrote the majority opinion, in which Judge WIDENER joined. Judge MOTZ wrote a separate dissenting opinion.

OPINION

MICHAEL, Circuit Judge:

On February 18, 1993, Denny Turpin and Jonathan Smith cut down and stole copper communication wire used by a railroad on which military materials were shipped. They were convicted for violation of and conspiracy to violate 18 U.S.C. § 1362, which prohibits willful destruction of a communication facility used or intended to be used for military or civil defense functions of the United States. Their main argument on appeal is that the railroad’s communication line does not fall within the scope of § 1362. They also challenge the admission of certain evidence. We affirm.

I.

CSX is a major railroad company whose tracks run through Campbell County, Virginia. The railroad’s internal communication line, made of uninsulated copper wire, is strung on poles along the track. On the evening of February 18,1993, CSX employee Wayne Carter was patrolling a section of the track near Lynchburg in Campbell County. He came across Turpin and Smith, who were in a four-wheeled all terrain vehicle (“four-wheeler”) beside the railroad, and warned them to move their vehicle away from the track. Continuing down the track, Carter came across a third man in the process of cutting down the railroad’s copper communication wire with a tree pruner. The man fled when he saw Carter, leaving the pruner behind. A short time later, Turpin and Smith drove up in the four-wheeler. Carter (who evidently assumed the three men were together) told Turpin and Smith the direction in which the third man had fled, and they left in that direction.

When police arrived, they found Smith’s pickup truck near the place Carter had first seen Turpin and Smith. In the bed of the truck was an empty merchandising package for a new tree pruner, and piled near the truck were five reels of copper wire weighing about 1,200 pounds. All of the naked copper wire along the track in that area had been cut down. Turpin and Smith denied any knowledge of the wire theft or the third man.

The following evening police seized the four-wheeler at the home of its owner, Tracy Owens (a friend of Turpin). Material lifted from the vehicle’s rear rack at that time was later identified as copper residue. Upon further investigation police discovered that a number of copper wire thefts had occurred in January and February 1993 in areas of Virginia and West Virginia near Turpin’s home. Tire tracks found at the sites of those thefts matched those of the four-wheeler used by-Turpin and Smith. Police also discovered that between January and February, Turpin had sold to a local salvage company thousands of pounds of naked copper wire of the type belonging to CSX.

The copper line installed along CSX’s track was used for communication among train crews, maintenance forces, and train stations and was necessary for the proper functioning of the railroad. If the line was damaged, trains could be slowed or stopped. Furthermore, the communications line was strung just above the railroad’s signal wire. When the communications line was cut, it occasionally dropped onto or became entangled with the signal wire, short circuiting the signal system. In fact, a few weeks following the theft, a cut communication line caused exactly this type of short circuit. CSX employees testified that a short circuit in the signal system could result in a collision. Finally, the track near Lynchburg was used to transport classified military materials to the Naval Nuclear Fuel Division of Babcock & Wilcox, a defense contractor located in Campbell County. These shipments related to activities of the United States Navy.

Turpin and Smith were convicted for violation of and conspiracy to violate § 1362, and they appeal.

II.

A.

Turpin and Smith first claim that their conduct did not fall within the scope of the statute under which they were convicted. 18 U.S.C. § 1362 provides criminal penalties for

Whoever willfully or maliciously injures or destroys any ... cable, line, ... or other means of communication, operated or controlled by the United States, or used or intended to be used for military or civil defense functions of the United States.

Turpin and Smith argue that the railroad’s internal communication line was not “used or intended to be used for military ... functions” within the meaning of § 1362. Their argument encompasses two separate issues. First, the defendants argue that the shipment of military material to a defense contractor is not a “military function.” Second, they contend that even if the railroad is used for a military function, the communication line, which is merely an appurtenance to the railroad, is not itself used for a military function. We analyze § 1362 with these issues in mind.

The scope of § 1362 has never been addressed by any court, so we start from scratch. We interpret a statute according to its plain language and in light of its object and policy. Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 1001, 108 L.Ed.2d 132 (1990). Our inquiry is complete if “the terms of [the] statute are unambiguous on their face, or in light of ordinary rules of statutory construction.” United States v. Morison, 844 F.2d 1057, 1064 (4th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 259, 102 L.Ed.2d 247 (1988).

We begin with the language of § 1362 itself, which, although brief, is expansive. The statute applies not only to lines “operated or controlled by the United States” but also to privately held lines “used or intended to be used for military ... functions.” It does not distinguish between lines used directly by the military and lines used by civilians, nor does it distinguish between commercial and non-commercial facilities. Construed literally, therefore, the statute encompasses a private internal line used for a military function. While the statute does not itself define “military function,” we may deduce the scope of this term by comparison with analogous statutes and by analysis of § 1362’s legislative history.

While no court has interpreted the scope of § 1362, judicial interpretation of the closely analogous Sabotage Acts, 18 U.S.C. §§ 2151-55, suggests that the term “military function” should be given broad scope. The Sabotage Acts, which have existed since 1918, were precursors to § 1362 and have similar purposes. 18 U.S.C. § 2153 prohibits the destruction of “war material, war premises, or war utilities” in wartime. 18 U.S.C. § 2155 prohibits the destruction of “national-defense material, national-defense premises, or national-defense utilities” with the intent to injure or obstruct national defense. While the Sabotage Acts are broader than § 1362 in the sense that they apply to facilities other than communication lines, they share with § 1362 the common purpose of protecting facilities related to national defense. As we discuss more fully below, Congress explicitly amended § 1362 in 1961 to extend the protection for communication facilities that already existed under the Sabotage Acts during wartime or in cases of specific intent to injure national defense. Therefore, cases construing the scope of protection for defense-related facilities under the Sabotage Acts bear on the scope of § 1362.

The few cases interpreting §§ 2153 and 2155 establish that their purpose and scope are broad. Courts interpreting “national defense” as used in § 2155 have held that the term “is a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.” United States v. Rabat, 797 F.2d 580, 586 (8th Cir., 1986), cert. denied, 481 U.S. 1030,107 S.Ct. 1958, 95 L.Ed.2d 530 (1987); United States v. Melville, 309 F.Supp. 774, 780 (S.D.N.Y.1970) (quoting Gorin v. United States, 312 U.S. 19, 28, 61 S.Ct. 429, 434, 85 L.Ed. 488 (1941)). As the Court of Military Appeals has noted, “the relevant legislative purpose for enacting 2155(a) was to assure that the national defense establishment would be ready to protect the country against aggression.... 2155(a) should be interpreted in a way that will promote this goal.” United States v. Ortiz, 24 M.J. 164, 168 (C.M.A.1987). While § 1362 uses the term “military function” rather than “national defense,” we believe Congress intended its scope to be similarly expansive.

If Turpin and Smith had cut down the railroad’s communication line during wartime (or with intent to injure national defense), their conduct would have been prohibited by the Sabotage Acts. Under those Acts, “[w]ar utilities” include “telephone and telegraph ... wires ... used to supply ... communication to any war premises ...,” 18 U.S.C. § 2151, and “[w]ar premises” include “all ... places wherein ... war material is being ... transported_” Id. “National-defense utilities” and “national-defense premises” are similarly defined. Id. A railroad line is a “place wherein” war material or national defense material may be transported. A case decided following the First World War held, on facts nearly identical to those of the present case, that copper line wire in a telegraph system owned by the Louisville & Nashville Railroad and used in connection with the transportation of war material was a “war utility” within the meaning of § 2153. Weisman v. United States, 271 F. 944, 945 (7th Cir.1921). Because § 1362’s purpose in these circumstances is identical to that of the Sabotage Acts, it should be given similar scope. See United States v. Fermin Castillo, 829 F.2d 1194, 1198 (1st Cir.1987) (statute should be construed similarly to older statute on which legislative history indicated it was based); Hollenbeck v. Penn Mutual Life Ins. Co., 323 F.2d 566, 571 (4th Cir.1963) (statutes with common purpose should be similarly construed).

The legislative history of § 1362 buttresses our conclusion that its scope was intended to be broad. Prior to 1961, § 1362 prohibited only the destruction of communications facilities “operated or controlled by the United States.” The 1961 amendment extended the prohibition to facilities used or intended to be used for military or civil defense functions. Pub.L. No. 87-306, 75 Stat. 669 (1961). The purpose of the amendment was to provide protection for privately-owned communication lines necessary to national defense. H.R. Rep. 965, 87th Cong., 1st Sess. (1961), reprinted in 1961 U.S.C.C.A.N. 2997, 2998; S.Rep. No. 458, 87th Cong., 1st Sess. 2, 3 (1961). The Report of the House Judiciary Committee accompanying the 1961 amendment focuses on the importance of communications to the nation’s military readiness in a wide variety of areas, including civilian warning, command, and logistical support. 1961 U.S.C.C.A.N. at 2999-3000. It explicitly notes that the amendment was intended to extend prohibitions that already existed under the Sabotage Acts during wartime or when a perpetrator displayed specific intent to injure national defense. Id. at 2999. The Report also makes clear that the provision protects even lines that are not themselves used directly by the military, as long as they are used for military or civil defense functions. For example, the statute protects communications facilities used by civilian employees of radio stations that form the Conel-rad civilian defense network. Id.

While many of the examples that the Committee cites involve commercial lines, nothing in the legislative history or the statutory language indicates that § 1362 should not apply to private (non-commercial) lines used for military functions. If Congress had meant to restrict the protection of § 1362 to commercial lines, it could have made that intent quite clear by including this restriction in the language of the statute. See Doski v. M. Goldseker Co., 539 F.2d 1326, 1332 (4th Cir.1976) (Courts should not “assume that it was only by inadvertence that [the legislature] failed to state something other than what it plainly stated.”).

With this background in mind we return to Turpin’s and Smith’s arguments, as outlined above, that their conduct did not violate § 1362. First, we reject any contention that the shipment of military material to a defense contractor for use on a project directly affecting the Navy is not a “military function.” Given § 1362’s broad language and purpose, we believe the shipment of defense-related materials is within the scope of activity Congress intended to protect. Second, we believe that the communication line, as well as the railroad itself, served this military function. The purpose of the statute is to protect military functions of the federal government by protecting the communication lines necessary to their fulfillment. Testimony at trial established that CSX’s communication wire was necessary to the proper functioning of the railroad, and that its destruction could slow or stop trains or cause a collision, jeopardizing military shipments. We believe that § 1362’s purpose is best served by a holding that communication lines vital to the transportation of defense-related materials are “used for a military function.” See United States v. Pomponio, 558 F.2d 1172, 1175 (4th Cir.1977) (rejecting interpretation that would “defeat the purpose of the Act”), cert. denied, 434 U.S. 1062, 98 S.Ct. 1233, 55 L.Ed.2d 761 (1978).^* Accordingly, we hold that the evidence at trial was sufficient to support the convictions of Turpin and Smith for violation of and conspiracy to violate § 1362.

B.

Turpin and Smith next contend that the district court erred in admitting evidence of thefts of copper wire that they allegedly committed prior to the February 18 theft. The court admitted, as direct evidence on the conspiracy charge, evidence of three thefts that occurred, respectively, in Botetourt County, Virginia, in February 1993; in Rock-bridge County, Virginia, in February 1993; and in West Virginia in January 1993. Considerable evidence connected Turpin and Smith to these thefts: all three locations were near Turpin’s residence, Turpin sold substantial amounts of copper wire to a salvage company several times in January and February 1998, and tire tracks at all three sites matched the tread of the four-wheeler Turpin and Smith had used on February 18. The indictment charged Turpin and Smith with a conspiracy to violate § 1362 lasting “from on or about January, 1998 to on or about February 18, 1993.” All three of the thefts were relevant because they occurred within the scope of this conspiracy, and therefore the court did not err by admitting evidence about them.

C.

Finally, Turpin and Smith claim the district court erred in admitting the copper residue lifted from the rack of the four-wheeler. They contend that because the residue was not taken until the day after the crime occurred, it could have been deposited on the rack at some point between the commission of the crime and the seizure of the four-wheeler the following evening. Therefore, the defendants maintain, the government failed to establish the “chain of custody” required to authenticate the copper residue.

The time that the residue was lifted has nothing to do with its authenticity. The authentication requirement of the Federal Rules of Evidence requires only that a party introducing evidence demonstrate that the evidence is in fact what its proponent claims. Fed.R.Evid. 901(a). The “chain of custody” rule is simply a variation of this principle, United States v. Howard-Arias, 679 F.2d 363, 366 (4th Cir.), cert. denied, 459 U.S. 874, 103 S.Ct. 165, 74 L.Ed.2d 136 (1982), and requires that a prosecutor seeking to introduce seized evidence must establish a chain of custody from the time the items were taken to show that they are in “substantially the same condition as when they were seized.” United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir.) (internal quotations omitted), cert. denied, 502 U.S. 854, 112 S.Ct. 164, 116 L.Ed.2d 128 (1991).

Here, Turpin and Smith do not allege that the copper residue is not in the same condition as when it was seized. In other words, they do not dispute that the item is exactly what the government says it is: copper residue lifted from the four-wheeler the night following the crime. See Howard-Arias, 679 F.2d at 366. The fact that the residue was not seized until the day after the wire was stolen bears only on the residue’s weight as evidence of the crime; it has no relevance to the residue’s authenticity. The district court did not abuse its discretion in admitting the copper residue.

III.

The convictions of Turpin and Smith are affirmed.

AFFIRMED.

* We are not dissuaded by the dissent's disapproval of our reliance on the Sabotage Acts and § 1362’s legislative history. First, we discussed the Sabotage Acts to show that courts have given a broad interpretation to the term “national defense." We believe courts have done this because the term is "well understood" to have a broad connotation, see Gorin v. United States, 312 U.S. at 28, 61 S.Ct. at 434, not because Congress inserted certain intent or belief requirements into the Sabotage Acts. Thus, we are comfortable in concluding that like "national defense,” the term "military function” (used in § 1362) has a broad scope. Second, we disagree with the dissent's suggestion that "[n]othing” in § 1362’s legislative history supports the application of § 1362 "to a private (non-commercial) communication system that is used exclusively by its owner,” here CSX. Post at 1214-15. The purpose of § 1362, as the legislative history makes plain, was to extend statutory protection to privately-owned communication systems so that they would be available for military functions. Thus, the ultimate question is whether the privately-owned line is used for a "military function,” not whether it is a commercial as opposed to an intracompany line.

In any event, as we read the thrust of the dissent, it is that there is an insufficient connection between the CSX communication line and a "military function.” But it cannot be reasonably questioned that the railroad was used for a military function. It carried classified materials to a nuclear defense contractor that did work for the Navy. The stolen communication line was an essential component of the railroad, necessary to its efficient and safe operation. We do not believe we are stretching it to say that the communication line, as an integral part of the railroad, was used for a military function.