We are aware of only one federal appellate decision that has addressed the mens rea requirement under § 81. In United States v. M.W., 890 F.2d 239 (10th Cir. 1989), the court affirmed a conviction, holding that a finding that the defendant was "consciously aware that his conduct would result in setting fire to or burning the school building . . . established knowing conduct and was, therefore, sufficient to support [the conviction]" under § 81. Id. at 241. While we agree with the result reached by the court, we disagree with its reasoning.

Typically, a finding that a defendant acted with some mental state, either purposely, knowingly, recklessly, or negligently, is necessary before they may be found guilty. SeeUnited States v. M. W. , 890 F.2d 239, 240 (10th Cir. 1989) (citing MODEL PENAL CODE § 2.02(2) ). "In some limited circumstances, ... Congress may also create true ‘strict liability’ crimes, which have no mens rea requirement at all."

As Lynch notes, we have applied a practical-certainty knowledge standard to the federal arson statute. See United States v. M.W., 890 F.2d 239, 240-41 (10th Cir. 1989) (holding that 18 U.S.C. § 81 encompasses "acts done with the knowledge that burning of a building is the practically certain result"). But we have never applied that standard to generic arson.

While not directly addressing the definition of "person" under 18 U.S.C. § 1153, other cases arising under the statute have involved victims that were not living individuals. E.g. United States v. M.W., 890 F.2d 239, 239 (10th Cir. 1989) (applying § 1153 to a juvenile committing arson involving the "Mill Creek School"); Johnson v. United States, 370 F.2d 495, 496 (9th Cir. 1966) (burglary of the "White River Trading Post"); United States v. Cardish, 145 F. 242, 243 (D.C.Wis. 1906) (arson of "certain dwelling house[s] of the United States . . . known as the 'Girls' [and Boys'] Building[s] of the Menominee Indian Training School'" and defining the crime as "arson against the property of another, to wit, of the United States of America"). The Supreme Court in Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 201-06, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993), provided guidance, in the form of four examples, for determining when the statutory context clearly restricts the definition of "person" to a living individual.

See id. § 2.02(8) ("A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense . . ."); see also United States v. M.W., 890 F.2d 239, 241 (10th Cir. 1989) (holding that, for purposes of federal arson statute, "`willfully and maliciously' includes acts done with the knowledge that burning of a building is the practically certain result"); United States v. Barber, 594 F.2d 1242, 1244 (9th Cir. 1979) (equating "willfully" with "knowledge of the facts constituting the offense") abrogated on other grounds, United States v. Foster, 133 F.3d 704 (9th Cir. 1998) (en banc); accord United States v. Johnson, 14 F.3d 766, 768 (2d Cir. 1994). In addition, the legislative history of section 1992 indicates Congress did not intend the statute to contain a specific intent requirement.

Applying this definition, we hold the district court did not err in instructing the jury as to the required mens rea. Our decision in United States v. M.W., 890 F.2d 239, 240-41 (10th Cir. 1989), in which we held the term "willfully and maliciously" included knowing conduct, does not require a contrary result. Section 844(i) requires only that a defendant act maliciously, not willfully.

In other jurisdictions where the "wilful and malicious" language was adopted by statute or code, courts have uniformly followed the common law and interpreted the language as setting forth a general intent crime. This is true at the State level, see, e.g., State v. Scott, 118 Ariz. 383, 385, 576 P.2d 1383 (Ct. App. 1978) ; People v. Atkins, 25 Cal. 4th 76, 84-85, 104 Cal.Rptr.2d 738, 18 P.3d 660 (2001) ; Linehan, 476 So.2d at 1264-1265, State v. O'Farrell, 355 A.2d 396, 398 (Me. 1976) ; State v. Doyon, 416 A.2d 130, 135 (R.I. 1980) ; at the federal level, see Doe, 136 F.3d at 634-635 (interpreting 18 U.S.C. § 81 ); United States v. M.W., 890 F.2d 239, 240-241 (10th Cir. 1989) (same); and even under the code of military justice, see Acevedo-Velez, 17 M.J. at 7 (interpreting art. 126 of Uniform Code of Military Justice). By contrast, in jurisdictions where arson has been declared a specific intent crime, the statutes have been drafted or amended to achieve that end.

Only two of those cases, however, address reckless instead of intentional conduct, and neither of those cases purport to describe the minimum conduct necessary to commit the offense. United States v. Doe, 136 F.3d 631, 633-34 (9th Cir. 1998) (juvenile committed intentional arson by setting fire to towel dispenser inside school restroom); United States v. M.W., 890 F.2d 239, 240-41 (10th Cir. 1989) (juvenile committed intentional arson by lighting school records on fire inside school principal's office); In re M.L., 729 S.E.2d 548, 549 (Ga. Ct. App. 2012) (juvenile reckless in starting fire six feet away from town house); In re Orazio A., 916 N.Y.S.2d 668, 669 (N.Y. App. Div. 2011) (juvenile acted recklessly in lighting firecrackers inside barn). The fact that the evidence was sufficient in those cases does not suggest the evidence was not sufficient here.

Title 18 United States Code section 81 provides in relevant part: "Whoever, within the special maritime and territorial jurisdiction of the United States, willfully and maliciously sets fire to or burns . . . any building . . . shall be fined not more that $1,000 or imprisoned not more than five years, or both." In United States v. M.W. (10th Cir. 1989) 890 F.2d 239, 240, the Court of Appeals analyzed the issue not in terms of a general or specific intent; rather, the court discussed whether the perpetrator's state of mind must be purposeful as distinguished from the less strict requirement of a knowing act of starting a fire. The Court of Appeals held that a fire, under the federal arson statute, must only be set "with the knowledge that burning of a building is the practically certain result. . . ."