Appeal from the United States District Courtfrom the District of MontanaJack D. Shanstrom, District Judge, PresidingArgued and SubmittedNovember 3, 1997--Seattle, WashingtonFiled February 12, 1998Before: Betty B. Fletcher and Diarmuid F. O'Scannlain,Circuit Judges, and William W Schwarzer,*Senior District Judge.Opinion by Judge Schwarzer; Dissent by Judge Fletcher
______________________COUNSEL Timothy Cavan, Assistant Federal Defender, Billings, Mon-tana, for the defendant-appellant.C. Ed Laws, Assistant United States Attorney, Billings, Mon-tana, for the plaintiff-appellee.
_____________________________OPINION SCHWARZER, Senior District Judge:R.S.W., a young Indian person on the Northern CheyenneIndian Reservation, was found guilty of juvenile delinquencypursuant to 18 U.S.C. S 5032 after a bench trial in the districtcourt for having committed arson in violation of 18 U.S.C.SS 81 and 1153. We have jurisdiction pursuant to 28 U.S.C.S 1291 and we affirm but on a ground different from thatrelied on by the district court.I.On February 12, 1996, at approximately 10 a.m., a fireoccurred at the Morning Star School in Lame Deer on theNorthern Cheyenne Indian Reservation in Montana. It causedextensive damage to the building but no one was injured.R.S.W. at that time was twelve years old and in the seventhgrade.Prior to the fire, R.S.W. and a friend went into the girlsrestroom of the school. Two automatic paper towel dispens-ers, designed to dispense one paper towel sheet at a time,were located on a privacy partition inside the restroom. As thegirls talked, R.S.W. began playing with a lighter she had withher. According to her testimony at trial, first she lit one cornerof a paper towel from one of the dispensers. She let the towelburn for a few seconds, then blew out the flame and put theburned towel in the sink. She then returned to the paper toweldispenser and lit the left corner of another towel protrudingfrom it. She let the flame burn for a second and blew it out.She then lit the right corner of the same towel in the dis-penser, blew it out and followed her friend out of the bath-room. The building subsequently caught fire and the schoolwas evacuated. Investigation determined the fire originated inthe girls restroom.The district court found that R.S.W. "knew what she wasdoing when she lit the paper towel" and "knew the likelyresult of her conduct would damage the school." It concludedthat "the United States had proven beyond a reasonable doubtthat the defendant intended to set fire to or burn the LameDeer High School since she was aware that an unattended firein a building can result in the building burning. " As a result,the district court found R.S.W. guilty and sentenced her tofive years probation.II.The question presented by this appeal is what mens rea isrequired to be proved to establish a violation of the federalarson statute, 18 U.S.C. S 81.1 The district court did notaddress the issue directly but its finding implies that itassumed knowledge that burning the building down was alikely result of the act was an element of the offense. Wereview the district court's construction or interpretation of astatute de novo. United States v. DeLaCorte, 113 F.3d 154,155 (9th Cir. 1997).[1] Section 81 makes it an offense to "willfully and mali-ciously set[ ] fire to or burn a building. " Prior interpretationsof "willfully" are not necessarily binding or helpful, for as theSupreme Court has noted, " `[w]illful,'. . . is a `word of manymeanings,' and `its construction [is] often. . . influenced byits context.' " Ratzlaf v. United States ,
510 U.S. 135
, 141(1994) (quoting Spies v. United States,
317 U.S. 492
, 497(1943)). In analyzing the mens rea requirement of federalcriminal statutes, courts "must follow Congress' intent as tothe required level of mental culpability for any particularoffense." United States v. Bailey,
444 U.S. 394, 406
(1980).[2] The legislative history of S 81 is silent as to theintended meaning of "willfully and maliciously. " In theabsence of any indication to the contrary, we must assumethat when Congress adopted the common law definition of thecrime of arson--the willful and malicious burning of abuilding--it intended to adopt the meaning that common lawgave that phrase.2 Moskal v. United States,
498 U.S. 103
, 116-17 (1990) (where a federal criminal statute uses a common-law term of established meaning without otherwise definingit, the term must generally be given that meaning); UnitedStates v. Loera, 923 F.2d 725, 727-28 (9th Cir. 1991) ("[t]hecommon-law meaning of a common-law term used in a fed-eral criminal statute provides a source from which statutoryprecision may be derived") (citation omitted); United Statesv. Juvenile Male, 930 F.2d 727, 728 (9th Cir. 1991) ("Because`assault' is not defined in the statute, we have construed it tobe equivalent to common law assault."); United States v.Gullett, 75 F.3d 941, 947 (4th Cir.), cert. denied, 117 S. Ct.134 (1996) ("[I]f Congress uses a common-law term in a fed-eral criminal statute without defining it, we must presume thatCongress adopted the common-law definition of that term.").[3] At common law, "[a]rson is a crime of general, ratherthan specific intent and the requirement that the defendant act`wilfully and maliciously' does not mean that the defendantmust have an actual subjective purpose that the act he doesintentionally shall produce either (1) setting a fire or burningof the structure or (2) damage to or destruction of saidstructure." Dean v. State, 668 P.2d 639, 643 (Wyo. 1983);State v. Scott, 576 P.2d 1383, 1385 (Ariz. Ct. App. 1978); seealso State v. O'Farrell, 355 A.2d 396, 398 (Me. 1976); Statev. Bell, 551 P.2d 548, 550 (Ariz. 1976); United States v.Acevedo-Velez, 17 M.J. 1, 2 (C.M.A. 1983); 6A C.J.S. ArsonS 6, 223 (1975).3 "To be a willful act, the setting of the firemust be a conscious, intentional act done knowingly andaccording to a purpose, as distinguished from a fire that wasstarted by accident or defendant's involuntary act. " 5 Am. Jur.2d Arson and Related Offenses S 7 (1995); see also Isaac v.State, 645 So.2d 903, 908 (Miss. 1994) (citing Curtis' Trea-tise on the Law of Arson); Dean, 668 P.2d at 642; Linehan v.State, 442 So.2d 244, 247 (Fla. Dist. Ct. App. 1983); Scott,576 P.2d at 1385; State v. Nelson, 561 P.2d 1093, 1096(Wash. Ct. App. 1977). " `[M]aliciously' means that state ofmind which actuates conduct injurious to others without law-ful reason, cause or excuse." Dean, 668 P.2d at 643; Scott,576 P.2d at 1385; see also 5 Am. Jur. 2d Arson and RelatedOffenses S 7 (1995) (an act "done with a design to do anintentional wrongful act . . . toward the public, without anylegal justification, excuse or claim of right"). 4[4] At common law, therefore, arson did not require proofof an intent to burn down a building, or of knowledge thiswould be the probable consequence of the defendant's act.The elements of willfulness and maliciousness are establishedby proof that the defendant set the fire intentionally and with-out justification or lawful excuse.5 Every state jurisdictionwith an arson statute containing the generic terms "willfullyand maliciously" has so interpreted the statute. 6 Those juris-dictions not following the common law definition either haveeliminated "willfully and maliciously" from their statutes7 orhave amended their statutes to include a different definition ofthat phrase.8 Given the uniform construction at common lawof the "willful and malicious" element, and the absence ofevidence to the contrary, we must assume that Congress knewhow the common law defined that phrase and intended toadopt that definition in enacting S 81.We are aware of only one federal appellate decision thathas addressed the mens rea requirement under S 81. In UnitedStates v. M.W., 890 F.2d 239 (10th Cir. 1989), the courtaffirmed a conviction, holding that a finding that the defen-dant was "consciously aware that his conduct would result insetting fire to or burning the school building . . . establishedknowing conduct and was, therefore, sufficient to support [theconviction]" under S 81. Id. at 241.9 While we agree with theresult reached by the court, we disagree with its reasoning.The court did not address the common law definition of thecrime and instead made reference to the Model Penal Codeanalysis of mens rea. We respectfully reject its analysis whichimplies a higher mens rea requirement than exists at commonlaw.10III.We turn then to the facts. The district court's findings offact are reviewed for clear error. United States v. Kohli, 110F.3d 1475, 1476 (9th Cir. 1997). Evidence is sufficient to sup-port a conviction unless, viewing the evidence in the lightmost favorable to the prosecution, no rational trier of factcould have found the essential elements of the crime beyonda reasonable doubt. United States v. Iriarte-Ortega, 113 F.3d1022, 1024 n.2 (9th Cir. 1997) (quoting Jackson v. Virginia,
443 U.S. 307, 319
(1979)), modified, 127 F.3d 1200 (9th Cir.1997). The same test applies to both jury and bench trials.United States v. Mayberry, 913 F.2d 719, 721 (9th Cir. 1990).[5] The district court found that R.S.W. set fire to the papertowel intentionally: "she knew what she was doing when shelit the paper towel." This evidence--R.S.W.'s own testimony--is undisputed. There is no suggestion that the fire started asa result of accident or negligence. The finding is not clearlyerroneous.[6] The court went on to find that R.S.W. knew the likelyresult of her conduct would damage the school. Given thatcommon law arson is a general intent crime, that finding issurplusage. Even if the district court acted under an erroneousassumption with respect to the requisite mens rea, its undis-puted findings establish that R.S.W. intentionally, and withoutjustification, set fire to a paper towel in a dispenser attachedto a partition in the building. Those findings suffice to supportthe conviction.[7] "Normally a judgment will not be reversed where aproper result is reached on the basis of a wrong reason, pro-vided that the defendant suffered no prejudice." United Statesv. Castillo-Felix, 539 F.2d 9, 13 (9th Cir. 1976).11 Even if thedistrict court applied a higher mens rea standard thanrequired, R.S.W. suffered no prejudice from its applicationbecause the correct standard--general intent--is less strin-gent, and the lower standard is encompassed within the higher.12Applying the correct standard, the district court's relevantfindings of fact support R.S.W.'s conviction underS 81.AFFIRMED. FLETCHER, Circuit Judge, Dissenting:I respectfully dissent.Notwithstanding the statutory mens rea requirement thatthe defendant act "willfully and maliciously, " the majorityholds that, under the federal arson statute codified at 18U.S.C. S 81, the government need not prove that the defen-dant had any intent whatsoever to burn a building, effectivelyconstruing the statute as establishing a strict liability offense.Majority at 1342. This interpretation runs counter to over-whelming precedent, defies reason and common sense, andcreates a split with the only other circuit to interpret S 81.The majority affirms R.S.W.'s arson conviction underS 81on a basis different from the one relied upon by the districtcourt. See Majority at 1344. The district court followed theinterpretation of S 81's intent requirement of "willfully andmaliciously" adopted by the Tenth Circuit in United States v.M.W., 890 F.2d 239 (10th Cir. 1989).1 That case interprets the"willfully and maliciously" requirement inS 81 as"includ[ing] acts done with the knowledge that burning of abuilding is the practically certain result: a person acts know-ingly with respect to a material element of an offense [ ] . . .if the element involves a result of his conduct[and] he isaware that it is practically certain that his conduct will causesuch a result." Id. at 240-41 (citations and internal quotationmarks omitted); see also Devitt & Blackmar, Federal JuryPractice and Instructions S 22A.05 (Arson, 18 U.S.C. S 81)("As used in these instructions, the term `willfully and mali-ciously' means either to knowingly set fire to or burn a build-ing, structure, vessel or machinery deliberately andintentionally (`on purpose'), or to act with the knowledge thatburning a building, structure, vessel or machinery is practi-cally certain to result."). The majority, by contrast, fashionsits own novel construction, purportedly derived from the com-mon law.2At common law, arson "is the wilful and malicious burningof the dwelling place of another." Wharton's Criminal LawS 334 (15th ed. 1995). As such, "[a]rson was one of the earli-est felonies in which the mental element was stressed." JohnPoulos, The Metamorphosis of the Law of Arson, 51 Mo. L.Rev. 295, 319 (1986) (internal quotation marks and footnoteomitted). The required intent "cannot be inferred from themere act of burning," 5 Am. Jur.2d Arson and RelatedOffenses S 48 (1995), although it may be inferred from suchfacts as the defendant's removal of "most of the contents ofthe building shortly before the fire," "threats to destroy theproperty later burned," and "ill will, unfriendly relations andtrouble between the defendant and the owner of the propertyburned," id. (citing numerous cases)."Absent evidence to the contrary, it is assumed that everyburning is accidental and not the result of criminality. There-fore, the burden is on the prosecutor to show that it was wilfuland malicious." Wharton's S 337; see also State v. Whistler,3 N.W.2d 525, 527 (Iowa 1942) ("It must be established [tosustain an arson conviction] that the burning was willful andmalicious and was not an accidental burning. . . . In theabsence of such proof the presumption obtains that the firewas accidental, or at least that it was not of criminal origin.")(citations and internal quotation marks omitted); Common-wealth v. Mezzanotti, 529 N.E.2d 1351, 1355 (Mass. Ct. App.1988) ("Excluded from that concept [of malice] are acts thatare lawful or the result of an accident or mistake."); State v.Baker, 53 A.2d 53, 55 (Vt. 1947) ("The mere fact of the burn-ing of a building is not sufficient to establish the corpusdelicti, for . . . it will be presumed that the fire was the resultof accident or some providential cause, rather than the resultof criminal design.") (common law offense subsequentlysuperceded by statute). The majority begins well enough byciting numerous sources articulating this same standard. SeeMajority at 1341-42.Inexplicably, the majority then concludes, without any cita-tion to authority, that "[a]t common law, therefore, arson didnot require proof of an intent to burn down a building, or ofknowledge this would be the probable consequence of thedefendant's act." Majority at 1342. This conclusion directlycontradicts the authority that the majority cites. It is basichornbook law that "[t]o constitute arson, there must be anintent to burn a building or other structure, and[the] accusedmust be consciously aware that his conduct is of such a naturethat fire would result." 6A C.J.S. Arson S 6 (1975); see alsoRollin M. Perkins & Ronald N. Bryce, Criminal Law 276-77(3d ed. 1982) ("[T]he state of mind which constitutes guilt ofcommon law arson . . . is either an intent to burn the dwellingof another, or an act done under such circumstances that thereis obviously a plain and strong likelihood of such aburning.").The majority goes on to state correctly that the intentrequirement for arson is met by proof that the defendant setfire to the building "intentionally." Majority at 1342. Unhap-pily, the majority mistakenly applies that standard, not to theproscribed conduct of setting fire to a building, but toR.S.W.'s mental state toward setting the paper towel aflame.See Majority at 1344. In other words, the majority proposesunder the mantle of the common law that, to sustain a convic-tion under S 81, a defendant need not have any criminal intentbearing on the proscribed conduct of burning a building aslong as the defendant's voluntary actions were the cause infact of the burning.The majority's conclusion demonstrates a profound misun-derstanding of the common law. As the classic treatise oncommon law arson explains: "An intent to burn a buildingmay be distinguished from an intent to burn its contents. If itappears that the accused had merely an intent to set fire to thecontents, he cannot be convicted under an indictment whichalleges a criminal intent to burn the building." Arthur F. Cur-tis, A Treatise on the Law of Arson 81 (1936). The treatisegoes on to provide a hypothetical with facts nearly identicalto those in the instant case: "This is well illustrated by a casewhere the prisoner threw pieces of lighted paper in a postof-fice letter box in a house with the intent of burning the letters,but not the house, and it was thought that he was not guiltyof felonious arson." Id.Modern cases as well continue to follow this rule. See, e.g.,Grable v. Varela, 564 P.2d 911, 913 (Ariz. Ct. App. 1977)(holding that intentionally setting a grass fire that spread outof control to burn a house was insufficient to satisfy the arsonstatute's intent requirement of "willfully and maliciously");People v. Fabris, 37 Cal. Rptr.2d 667, 672 (Cal. Ct. App.1995) (explaining that, although arson is not a "specificintent" offense,3 conviction nevertheless "requires an intent toburn a structure when the burning is caused by the act of set-ting fire to a substance which is not itself the subject of thearson statute"); T.E. v. State, 701 So.2d 1237, 1237-38 (Fla.Ct. App. 1997) (holding that the burning of a wooden shackcaused by a boy who ignited a piece of paper at the end of ametal pipe was insufficient to meet arson statute's intentrequirement of "willfully and maliciously"); People v. Lind-sey, 268 N.W.2d 41, 42 (Mich. Ct. App. 1978) (overturningarson conviction despite evidence that fire was started byhuman means with the use of paper because "an inference thatthe fire was negligently started . . . appears equally as plausi-ble as the prosecution's inference that the fire was wilfullyand maliciously set by the defendant"); Isaac v. State, 645So.2d 903, 907-09 (Miss. 1994) (holding that the accidentalburning of the door to an apartment by lighting a towel witha cigarette is not arson); see also, e.g., Walters v. Governmentof the Virgin Islands, 172 F.R.D. 165, 168 (D.V.I. 1997) (con-struing arson as the malicious burning of "any building ofanother with the intent to destroy it"); Veverka v. Cash, 318N.W.2d 447, 450 (Iowa 1982) (explaining that common lawarson requires a "general intent to burn a building"); Stokes v.State, 189 P.2d 424, 427 (Okla. Ct. Crim. App. 1948) (con-struing arson as "wilful and malicious burning of a buildingwith intent to destroy it"), as modified, 190 P.2d 838,overruled on other grounds by Parker v. State, 917 P.2d 980,986 (Okla. Ct. Crim. App. 1996); State v. Nelson, 561 P.2d1093, 1095 (Wash. Ct. App. 1977) (explaining that commonlaw arson requires "a general malice or intent to burn somestructure").Common sense dictates that an arson conviction requiresmore than a building burned by a smoldering cigarette butttossed into a trash can or by lighted candles placed too closeto the drapes. Yet, these hypotheticals are indistinguishablefrom the facts in the instant case.4As recounted by the majority, on the morning of the fire,R.S.W. was playing with a lighter while talking to a friend inthe girls restroom at school. After twice lighting and thenextinguishing the edge of a paper towel protruding from a dis-penser attached to a privacy partition inside the restroom,R.S.W. for a third time lit the edge of the paper towel and,prior to leaving the restroom with her friend, once again blewthe flame out.After leaving the restroom, R.S.W. and her friend pur-chased a soft drink from a machine located just outside therestroom and then proceeded to wander through the halls ofthe school. Eventually, they went to and participated in a gymclass. R.S.W.'s friend testified that R.S.W. seemed "panickyand scared" in response to the news that the school had to beevacuated on account of a fire originating in the girls rest-room. At trial, the Deputy Fire Marshall who investigated thecase testified that it would have been possible for a flame onthe paper towel that had been blown out to reignite if suppliedwith a new oxygen source, such as the one that could haveresulted from opening and closing the door as the girls left therestroom.Nothing in the record suggests that R.S.W. thought that thesmoldering paper towel would reignite and cause a blaze thatwould ultimately consume the school. R.S.W. and her frienddid not run or attempt to hide in anticipation of a fire, or stayand observe whether some type of fire would, in fact, occur.Instead, they purchased a soft drink from a machine locatedoutside the restroom, and then walked the halls of the schoolbefore attending a gym class. The girls' conduct is inconsis-tent with and clearly does not support the finding that R.S.W.knew that her conduct would result in the school burningdown.The factual finding relied on by the district court to supportits conviction of R.S.W. was that she "was aware that an unat-tended fire in a building can result in the building burning."This factual finding, however, does not meet the mens rea ofknowledge with "practical certainty" as to the result adoptedby the district court from the Tenth Circuit as its standard. Inother words, under the district court's legal standard, R.S.W.could not as a matter of law have been convicted based uponthe factual finding it cited as determinative.The majority selectively quotes a different factual findingthan the one relied on by the district court as satisfying theintent requirement of S 81: that R.S.W. "knew the likely resultof her conduct would damage the school." Majority at 1344.This finding, however, is not supported by the record. Therecord certainly shows that R.S.W. demonstrated a seriouslack of judgment. She should have known better. She mayhave even been reckless. But, nothing in the record remotelysuggests that she knew that her actions would cause theschool to burn down.The majority appears to acknowledge as much, but then inretreat suggests that even if the district court erred in its find-ing, "[g]iven that common law arson is a general intent crime,that finding is surplusage." Majority at 1344. The majority iswrong as to the law.While it is true that common law arson is not a "specificintent" crime, it does not follow that an arson convictionrequires nothing more than the lowest form of "generalintent." The phrase "general intent" encompasses many formsof the mental state requirement not designated by "specificintent," or "purpose." See Wayne R. LaFave & Austin W.Scott, Substantive Criminal Law S 3.5(b), (e) (1986); see alsoUnited States v. Bailey,
444 U.S. 394, 405
(1980) ("In a gen-eral sense, `purpose' corresponds loosely with the common-law concept of specific intent, while `knowledge' correspondsloosely with the concept of general intent.").The term of art, "intentional," on the other hand, as used todescribe the common law offense of arson, has traditionallybeen defined to include both purpose and knowledge,"andthus it is usually said that one intends certain consequenceswhen he desires that his acts cause those consequences orknows that those consequences are substantially certain toresult from his acts." LaFave & Scott S 3.5. Only with thisunderstanding then does it become clear why, as applied toarson, "[m]alice is the deliberate and intentional firing of abuilding, or other defined structure, as contrasted with anaccidental or unintentional ignition thereof." 6A C.J.S. ArsonS 8 (1975).Although the majority claims that its interpretation of"willfully and maliciously" is rooted in the common law defi-nition of arson, see Majority at 1340, the majority gravelymisconstrues the authority on which it purports to rely, andarrives at an interpretation bearing no resemblance to thecommon law crime of arson and requiring no criminal intentwith regard to the proscribed conduct of burning a building.Under the proper mens rea standard, the findings of the dis-trict court, even if they were supported by the record, couldnot as a matter of law sustain a conviction for arson pursuantto S 81. I would reverse.
___________________________FOOTNOTES 1 The statute provides: Whoever, within the special maritime and territorial jurisdic- tion 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 appli- ances for navigation or shipping, shall be fined under this title or imprisoned not more than five years, or both. If the building be a dwelling or if the life of any person be placed in jeopardy, he shall be imprisoned for not more than 25 years, fined the greater of the fine under this title or the cost of repairing or replacing any property that is damaged or destroyed, or both.18 U.S.C. S 81 (West Supp. 1997).2 See Curtis' Treatise on the Law of Arson S 57 (1936) ("The commonlaw definition of arson--the willful and malicious burning of the propertyof another--imports two mental elements: willfulness and malice.").3 The dissent agrees that arson at common law is a general intent crimeand that willfulness is established by proof that the defendant set the fireintentionally. Dissent at 1348-49. While the dissent concedes specificintent is not required, it inexplicably propounds a standard indistinguish-able from specific intent, i.e., requiring an intent to burn down the build-ing. Further, it never explains--much less cites authority explaining --justwhat additional proof is required under the common law to establish theelements of arson. Dissent at 1351-52.4 "An intentional act creating an obvious fire hazard to the dwelling ofanother, done without justification . . . might well be characterized as `wil-ful' . . . and would certainly be malicious, but as the law has developedit is a mistake to assume that the phrase `willful and malicious,' whenfound in the definition of common-law arson, adds some distinct require-ment not included in the word `malicious' alone. " Rollin M. Perkins andRonald N. Boyce, Criminal Law 275 (3d ed. 1982); see also John Poulos,The Metamorphosis of the Law of Arson, 51 Mo. L. Rev. 295, 323 (1986).5 We agree with the dissent that an arson conviction based on the burn-ing of a building caused by a smoldering cigarette butt tossed into a trashcan or by lighted candles placed too close to the drapes should probablybe set aside on a Rule 29 motion or on appeal on the ground that it wasaccidental or that the initial fire was set with justification or legal excuse.Dissent at 1351. But those hypotheticals are distinguishable from the pres-ent case which is more analogous to intentionally setting fire to the drapesand then walking away in the (erroneous) belief that the fire had beenblown out. While one can argue that that is a close case for the trier offact, on that evidence the trier of fact would be entitled to return a verdictof guilty.6 Florida, Michigan, Mississippi, Nevada, New Mexico, Oklahoma,South Carolina, Vermont, the Virgin Islands, and West Virginia all havestatutes employing the terms "willfully and maliciously." California hasarson statutes with two different mens rea: "willfully and maliciously" andrecklessly. Although a minority of California Courts of Appeal have con-cluded that the legislature intended to change the common law mens reaof "willfully and maliciously" to specific intent by criminalizing "recklessarson" as a lesser offense, the majority view supports maintaining thecommon law's general intent mens rea for the higher offense. Compare Inre Stonewall F., 256 Cal. Rptr. 578, 580 (Cal. Ct. App. 1989), with Peoplev. Holden, 52 Cal. Rptr. 2d 485, 490-91 (Cal. Ct. App. 1996); compareCal. Penal Code S 451 (West Supp. 1998) (willfully and maliciously), withCal. Penal Code S 452 (West 1988) (recklessly). Thus, certain Californiacases applying these arson statutes, such as the dissent's only cited caseauthority, People v. Fabris, 37 Cal. Rptr. 2d 667, 672 (Cal. Ct. App.1995), are inapposite to our determination of the common law meaning of"willful and malicious."7 See, e.g., Commentary to Ky. Rev. Stat. Ann. S 513.020 (Banks-Baldwin 1997).8 For example, Maryland's arson statute contains the terms "willfullyand maliciously" but has been amended to include its own definition ofmaliciously, which requires specific intent. Md. Code Ann. Art. 27 S 5(c)(1997).9 The district court cited in its conclusions of law the M.W. court's state-ment that S 81 "includes acts done with the knowledge that burning of abuilding is the practically certain result . . . . " M.W., 890 F.2d at 241.10 The dissent also implicitly rejects M.W.'s reliance on the Model PenalCode by turning to the common law in its analysis. Furthermore, the dis-sent mistakenly asserts that this opinion "creates a split" with the TenthCircuit: M.W. did not purport to set forth a bottom line standard for mensrea in arson and its holding does not prevent courts in the Tenth Circuitfrom finding a defendant such as R.S.W. guilty underS 81.11 See Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994) (in review-ing denial of habeas petition, "[w]e may affirm on any ground supportedby the record, even if it differs from the reasoning of the district court");United States v. Lehman, 792 F.2d 899, 901 (9th Cir. 1986) (appellatepanel "may affirm . . . on any ground supported by record"); United Statesv. Click, 807 F.2d 847, 850 n.5 (9th Cir. 1986) ("It is proper for an appel-late court to affirm a correct decision of a lower court even when that deci-sion is based on an inappropriate ground."); see also Helvering v. Gowran,_______ U.S. _______, 58 S. Ct. 154, 158, 82 L. Ed. 224 (1937) ("In the reviewof judicial proceedings the rule is settled that, if the decision below is cor-rect, it must be affirmed, although the lower court relied upon a wrongground or gave a wrong reason.").12 This is not a case where as the result of the trial court's applicationof the wrong standard, the conviction was not supported by evidencerequired under the correct standard. Reference to the wrong standard heremerely led the court to make surplus findings, in addition to those requiredfor the conviction. Cf. Wilson v. United States , 250 F.2d 312, 324-25 (9thCir. 1958) (reversing conviction at bench trial when district judge appliederroneous standard of law and correct standard would require findings notmade by the district court).1 The Tenth Circuit in United States v. M.W. derived its construction ofS 81 by analyzing under the Model Penal Code two Arizona state casesinterpreting an arson statute that similarly included a mens rea of"willfully and maliciously." See 890 F.2d at 241 (contrasting Grable v.Varela, 564 P.2d 911, 913 (Ariz. Ct. App. 1977) (intentionally setting agrass fire that spread out of control to burn a house was merely recklessand therefore insufficient to satisfy the intent requirement), with In reAppeal in Pima County Juvenile Action, 570 P.2d 206, 208-09 (Ariz. Ct.App. 1977) (assistance in setting a fire with the knowledge that a codefen-dant intended to burn a building was sufficient to satisfy the intent require-ment)).2 It is worth noting as a threshold matter that the majority skims overboth textual analysis and review of legislative history in its haste to reachthe conclusion that Congress encoded the common law in S 81. Only onesentence is devoted to textual analysis, in which the majority completelyignores the term "maliciously" and selectively quotes a Supreme Courtcase to support the proposition that interpretations of "willfully" are notbinding or helpful. Majority at 1340 (citing Ratzlaf v. United States, 510U.S. 135, 141 (1994)). In fact, the Supreme Court in Ratzlaf warned thatjudges should hesitate to treat statutory terms "as surplusage," and that"resistance should be heightened when the words describe an element ofa criminal offense."
510 U.S. at 140
-41; see also, e.g., State v. Long, 90S.E.2d 739, 741 (N.C. 1956) ("It is an essential element of the commonlaw crime of arson that the burning was done or caused maliciously.").With regard to legislative history, the Tenth Circuit, like the majority,bemoaned the lack of anything conclusive. See M.W., 890 F.2d at 240.Nevertheless, it is perhaps notable that as part of the consolidation in 1948of two previous offenses into the new federal arson statute codified atS 81, the separate intent requirements for those offenses--"willfully andmaliciously" for section 285 but only "maliciously" for section 286--werereconciled as the ostensibly higher mens rea of "willfully andmaliciously." See 18 U.S.C. SS 464, 465 (1940).3 Contrary to the majority's puzzling assertion, Majority at 1342-43 n.6,the California Court of Appeals in People v. Farris held that its arson stat-ute codified a "general intent" crime. See 37 Cal.Rptr.2d at 675 ("[A]rsoncan be categorized as a general intent crime."); see also id. at 672("Stonewall F. [256 Cal.Rptr. 578 (Cal. Ct. App. 1989),] does not charac-terize arson as specific intent crime.").4 The majority vainly attempts to explain away these hypotheticals bysuggesting that such fires would be "accidental " or "set with justificationor legal excuse." Majority at 1342 n.5. However, these assertions assumethe conclusion. Legal excuse or justification is what keeps exploding abuilding for demolition purposes from constituting arson, and does notproperly affect analysis of the mens rea. Moreover, intentionally lightinga cigarette is not legally excused or justified, for example, in hospitals andmost office buildings and schools, just as it may not be legally excused orjustified for a draft protester to burn his draft card at city hall.Of course, one can commit arson with a cigarette under the right cir-cumstances (e.g., intentionally and with a gallon of gasoline). On the otherhand, cigarettes and paper towels, even if intentionally ignited withoutlegal excuse, may cause a fire that ultimately burns down a buildingthrough carelessness or negligence. This is not arson. Nothing in therecord suggests that the burning in the instant case is any less "accidental."