United States v. Kelly

Peace and disarmament activists cannot trespass and destroy government property and claim protection from an international treaty, because when an international treaty conflicts with another federal law, the more recent of the two controls. Under 18 U.S.C. § 1363, “malicious” is defined under common law as having (1) intent to commit the prohibited act, and (2) no justification or excuse.

Two Catholic priests, an eighty-year-old nun, and two grandmothers, all longtime peace and disarmament activists, were convicted of conspiracy to trespass, destruction of property within the special territorial jurisdiction of the United States, and for injuring U.S. property valued at more than $1,000. The group cut through two fences to gain access to a secure area of the U.S. Naval Base Kitsap-Bangor. After entering the base, the group “spread ‘simulated blood’ on base fences and unfurled a banner reading, ‘Plowshares—Trident Illegal and Immoral.’” The group appealed their conviction on the grounds that (1) the Hague Convention treaty preempts 18 U.S.C. §§ 1361, 1363, and 1382, and (2) the group’s actions were not “malicious” under § 1363. Where a treaty conflicts with another federal law, the more recent of the two controls. The Hague Convention was ratified in the U.S. in 1909 and 18 U.S.C. §§ 1361, 1363, and 1382 were modified in 1996, 2001, and 1994, respectively. Therefore, the modified statutes supersede the treaty. Even if the treaty controlled, the Hague Convention prohibits using certain weapons in “armed conflicts between nations,” but does not prohibit possessing such weapons. Section 1363 fails to define “maliciously.” When a statute does not define a term, the court will infer that Congress intended to incorporate the common law meaning of the term if it had “accumulated settled meaning under . . . the common law.” Under common law, “[i]t was sufficient that the defendant (1) had the intent to do the prohibited act and (2) had no justification or excuse.” A jury reasonably could have found that the group’s actions were wrongful and without legal justification or excuse. AFFIRMED.