A.
Although section 1119(b) refers only to the “punish[ments]” under sections 1111, 1112, and 1113, courts have held that section 1119(b) incorporated the substantive elements of those cross-references provisions of title 19. See, e.g., United States v. Wharton, 320 F.3d 526, 533 (5th Cir. 2003); United States v. White, 51 F. Supp. 2d 1008, 1013–14 (E.D. Cal. 1997). Section 1111 of title 18 sets forth criminal penalties for “murder,” and provides that “[m]anslaughter is the unlawful killing of a human being without malice.” Id. § 1112(a). Section 1113 provides criminal penalties for “attempts to commit murder or manslaughter.” Id. § 1113. It is therefore clear that section 1119(b) bars only “unlawful killing.”
Guidance as to the meaning of the phrase “unlawful killing” in sections 1111 and 1112—and thus for purposes of section 1119(b)—can be found in the historical understandings of murder and manslaughter. That history shows that states have long recognized justifications and excuses to statutes criminalizing “unlawful” killings.[1] One state court, for example, in construing that state’s murder statute, explained that “the word ‘unlawful’ is a term of art” that “connotes a homicide with the absence of factors of excuse or justification.” People v. Frye, 10 Cal. Rptr. 2d 217, 221 (Cal. Ct. App. 1992). That court further explained that the factors of excuse or justification in question include those that have traditionally been recognized. Id. at 221 n.2. Other authorities support the same conclusion. See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 685 (1975) (requirement of “unlawful” killing in Maine murder statute means that killing was “neither justifiable nor excusable”); cf. also Rollin M. Perkins & Ronald N. Boyce, Criminal Law 56 (3d ed. 1982) (“Innocent homicide is of two kinds, (1) justifiable and (2) excusable.”). Accordingly, section 1119 does not proscribe killings covered by a justification traditionally recognized under the common law or state and federal murder statutes. “Congress did not intend [section 1119] to criminalize justifiable or excusable killings.” White, 51 F. Supp. 2d at 1013.
B.
The public authority justification is well-accepted, and it may be available even in cases where the particular criminal statute at issue does not expressly refer to a public
- ↑ The same is true with respect to other statutes, including federal laws, that modify a prohibited act other than murder or manslaughter with the term “unlawfully.” See, e.g., Territory v. Gonzales, 89 P. 250, 252 (N.M. 1907) (construing the term “unlawful” in statute criminalizing assault with a deadly weapon as “clearly equivalent” to “without excuse or justification”). For example, 18 U.S.C. § 2239C(a)(1) (2006) makes it unlawful, inter alia, to “unlawfully and willfully provide[] or collect[] funds” with the intention that they may be used (or knowledge they are to be used) to carry out an act that is an offense within certain specified treaties, or to engage in certain other terrorist acts. The legislative history of section 2339C makes clear that “[t]he term ‘unlawfully’ is intended to embody common law defenses.” H.R. Rep. No. 107-307, at 12 (2001).
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