UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE UNITED STATES OF AMERICA ) ) v. ) CASE NO. 3:12-CR-107 ) JUDGES THAPAR/SHIRLEY MICHAEL R. WALLI, ) MEGAN RICE, and ) GREG BOERTJE-OBED ) GOVERNMENT=S PROPOSED JURY INSTRUCTIONS Comes now the United States of America, by and through the United States Attorney for the Eastern District of Tennessee, and requests that the Court give the attached jury instructions at the trial of this case as directed by the Court. The government also requests Sixth Circuit Pattern Instructions (2011) 2.08, 2.09, 4.01 and 5.01 as they relate to the substantive offenses. Respectfully submitted this 26th day of April, 2013. WILLIAM C. KILLIAN UNITED STATES ATTORNEY By: s/ Jeffrey E. Theodore Jeffrey E. Theodore Assistant United States Attorney 800 Market Street, Suite 211 Knoxville, Tennessee 37902 Telephone: (865) 545-4167 s/ Melissa M. Kirby Melissa M. Kirby Assistant United States Attorney 800 Market Street, Suite 211 Knoxville, Tennessee 37902 Telephone: (865) 545-4167 Case 3:12-cr-00107 Document 129 Filed 04/26/13 Page 1 of 10 PageID #: 946

CERTIFICATE OF SERVICE I hereby certify that, on April 26, 2013, the foregoing response was filed electronically. Notice of this filing will be sent by operation of the Court=s electronic filing system to all parties indicated on the electronic filing receipt. s/ Jeffrey E. Theodore Assistant United States Attorney Case 3:12-cr-00107 Document 129 Filed 04/26/13 Page 2 of 10 PageID #: 947

GOVERNMENT=S INSTRUCTION NO. 1 Injury/Interference/Obstruction to a National Defense Premises - Nature of the Offense Charged and Statute Defining the Offense Count One of the Superseding Indictment charges that, On or about July 28, 2012, within the Eastern District of Tennessee, the defendants, MICHAEL R. WALLI, MEGAN RICE, and GREG BOERTJE-OBED, aiding and abetting each other, with the intent to injure, interfere with, and obstruct the national defense of the United States, did willfully injure, destroy, and contaminate, and attempt to injure, destroy and contaminate national-defense premises, specifically, buildings and grounds of the Y-2 National Security Complex, in violation of Title 18, United States Code, Sections 2155(a), 2151 and 2. Section 2155 of Title 18 of the United States Code provides in part that: A(a) Whoever, with intent to injure, interfere with, or obstruct the national defense of the United States, willfully injures, destroys, or contaminates... or attempts to so injure, destroy, or contaminate... any national defense premises...@ shall be guilty of an offense against the United States. 1 1 See Title 18, United States Code, Section 2155. Case 3:12-cr-00107 Document 129 Filed 04/26/13 Page 3 of 10 PageID #: 948

GOVERNMENT=S INSTRUCTION NO. 2 ANational Defense,@ ANational-Defense Premises,@ and ANational-Defense Materials@ -- Defined The term Anational defense@ as used in Title 18, United States Code, Section 2155, regarding the destruction of, interference with, contamination of or obstruction of national defense materials or premises is a generic concept of broad connotations referring to military establishments and the related activities of national preparedness. 2 The term Anational-defense premises@ as used in Title 18, United States Code, Section 2155, includes: all buildings, grounds, mines or other places wherein such national-defense material is being produced, manufactured, repaired, stored, mined, extracted, distributed, loaded, unloaded, or transported, together with all machinery and appliances therein contained; and all forts arsenals, navy yards, camps, prisons, or other installations of the Armed Forces of the United States. 3 The term Anational-defense material@ as used in Title 18, United States Code, Section 2155, includes: arms, armament, ammunition, livestock, forge, forest products and standing timber, stores of clothing, air, water, food, foodstuffs, fuel, supplies, munitions, and all other articles of whatever description and any part or ingredient thereof, intended for, adapted to, or suitable for the use of the United States in connection with the national defense or for use in or in connection with the producing, manufacturing, repairing, storing, mining, extracting, 2 Gorin v. United States, 312 U.S. 19, 29 (1941); United States v. Platte, 401 F.3d 1176, 1190 (10 th Cir. 2005). 3 Title 18, United States Code, Section 2151 Definitions. Case 3:12-cr-00107 Document 129 Filed 04/26/13 Page 4 of 10 PageID #: 949

distributing, loading, unloading, or transporting of any of the material or other articles hereinbefore mentioned or any part or ingredient thereof.@ 4 4 Id. Case 3:12-cr-00107 Document 129 Filed 04/26/13 Page 5 of 10 PageID #: 950

GOVERNMENT=S INSTRUCTION NO. 3 Destruction of National Defense Premises -- Elements of 18 U.S.C. ' 2155 The elements of Count One of the Superseding Indictment charging the crime of Destruction of National Defense Premises are: 1. That the defendants; 2. in the Eastern District of Tennessee, at or about the date and place charged in Count One of the Superseding Indictment; 3. with intent to injure, interfere with, or obstruct the national defense of the United States; 4. willfully injured, destroyed, or contaminated national defense premises; or did willfully attempt to injure, destroy, or contaminate national defense premises. After considering all the evidence, if you decide the government has proven each of the elements of the crime beyond a reasonable doubt, then you should find the defendant guilty of Count One of the Superseding Indictment charging the crime of Destruction of National-defense Premises. After considering all the evidence, if you decide the government has failed to prove each of the elements beyond a reasonable doubt, you should find the defendant not guilty of Count One of the Superseding Indictment charging the crime of Destruction of National-defense Premises. Title 18, United States Code, Section 2155. United States v. Platte, No. 02-CR-509-RB (D. Col., April 8, 2003) (docket entry 126, Jury Instruction 17). Case 3:12-cr-00107 Document 129 Filed 04/26/13 Page 6 of 10 PageID #: 951

GOVERNMENT=S JURY INSTRUCTION NO. 4 Intent Required Under 18 U.S.C. ' 2155 The Aintent@ requirement of Title 18, United States Code, Section 2155, as charged in Count One of the Superseding Indictment means intent to interfere with what may commonly be taken as a country=s activities of national preparedness and not intent to act to what one subjectively believed to be the detriment of the United States. 5 5 United States v. Kabat, 797 F.2d 580 (8th Cir. 1986); United States v. Platte, No. 02-CR-509-RB (D. Col., April 8, 2003) (docket entry 126). Case 3:12-cr-00107 Document 129 Filed 04/26/13 Page 7 of 10 PageID #: 952

GOVERNMENT=S JURY INSTRUCTION NO. 5 Intent Required Under 18 U.S.C. ' 2155 The offense of destruction of national defense premises charged in Count Three of the Superseding Indictment requires that the government prove that Michael R. Walli, Megan Rice, and Greg Boertje-Obed acted Awith intent@ to injure, interfere with, or obstruct, or attempting to injure, interfere with or obstruct, the national defense of the United States. This means that the government must prove beyond a reasonable doubt either that (1) it was Michael R. Walli=s, Megan Rice=s, and Greg Boertje-Obed=s conscious desire or purpose to act in a certain way or to cause a certain result, or that (2) Michael R. Walli, Megan Rice, and Greg Boertje-Obed knew that he or she was acting in that way or would be practically certain to cause that result. 1 The Aintent@ requirement of Title 18, United States Cod, Section 2155, is satisfied if one acts knowing that injury to, interference with or obstruction of the national defense of the United States would be the almost inevitable result, even though the reason for his or her action had nothing to do with national defense. 2 It is the intent to interfere with what may commonly be taken as the country=s activities of national preparedness and not the intent to act to what one subjectively believes to be the detriment of the United States. 3 Once that intent has been proven, it is immaterial that the defendants may also have had some secondary, or even overriding, intent. 4 1 Third Circuit Model Criminal Jury Instructions ' 5.03 (modified) 2 United States v. Johnson, 24 M.J. 101, 105 (C.M.A. 1987); United States v. Platte, No. 02-CR-509-RB (D. Col., April 8, 2003) (docket entry 126). 3 United States v. Kabat, 797 F.2d 580, 587 (8th Cir. 1985); United States v. Platte, No. 02-CR-509-RB (D. Col., April 8, 2003) (docket entry 126).. 4 Id; United States v. Platte, No. 02-CR-509-RB (D. Col., April 8, 2003) (docket entry 126,).. Case 3:12-cr-00107 Document 129 Filed 04/26/13 Page 8 of 10 PageID #: 953

GOVERNMENT=S INSTRUCTION NO. 6 Damaging United States Property Nature of the Offense and Statute Defining the Offense Count Three of the Superseding Indictment charges the defendants with damaging property of the United States, in violation of Title 18, United States Code, Section 1361. Title 18, United States Code, Section 1361 provides: Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, or attempts to commit any of the foregoing offenses...[shall be guilty of an offense against the United States].6 6 Title 18, United States Code, Section 1361. Case 3:12-cr-00107 Document 129 Filed 04/26/13 Page 9 of 10 PageID #: 954

GOVERNMENT=S INSTRUCTION NO. 7 Damaging United States Property - Elements of the Offense To obtain a conviction for damaging United States property under Title 18, United States Code, Section 1361, the government must prove the following: (1) The defendant(s) willfully injured or committed a depredation; (2) The injury was against property; (3) The property belonged to the United States of America, specifically the United States Department of Energy; (4) The resulting damage to the property caused by the injury to or attempted injury to the property exceeded $1000.00. 7 The value of the damage caused includes the value of the property damaged and the costs of restoration or repair of the property. 8 The term Aproperty@ includes anything of value. 9 7 United States v. Seaman, 18 F.3d 649, 650 (9th Cir. 1994) (enumerating the elements under a prior version of ' 1361); and 18 U.S.C. ' 1361. 8 United States v. Quarrel, 310 F.3d 664 (10th Cir. 2002); and United States v. Sharp, 927 F.2d 170 (4th Cir. 1991). 9 United States v. Blount, 1994 U.S. App. LEXIS 24378 at *4 (9th Cir. 1994) (definition of property as it relates to ' 1361); citing Black=s Law Dictionary 635 (5th ed. abr. 1983). Case 3:12-cr-00107 Document 129 Filed 04/26/13 Page 10 of 10 PageID #: 955