“Eddie Isn’t With Us At This Time”: Engineer Charged With Train Wrecking In Alleged Attack On The USNS Mercy

There are many surreal aspects to this pandemic but Eduardo Moreno is still something of a stand out. The California engineer attempted to ram his locomotive into the USNS Mercy because he was suspicious of its real purpose in Los Angeles. His effort took the train off the rails and across a remarkable distance before stopping short of the ship. The family has started a GoFundMe page that cryptically says “Eddie is not hurt physically but isn’t with us at this time.” The case has resulted in a relatively rare federal charge of training wrecking. By handing Moreno over to the federal prosecutors, state authorities minimized his defense options and maximized the potential sentencing.

Moreno was operating a Pacific Harbor Line train on March 31st when he decided to try to reach the ship at high speed. According to the U.S. Attorney, “Moreno ran the train off the end of tracks, and crashed through a series of barriers before coming to rest more than 250 yards from the Mercy.” The site Heavy has a good description of the events.

It is still not clear to me how the train could have possibly reached the ship despite traveling over an impressive distance after derailing. That fact could be used to contest allegations of an intended collision as opposed to the current current charge of train wrecking. Nevertheless, the charge still brings a potential 20 year sentence.

We have never addressed a train wrecking charge before on this blog. Since we are unlikely to have another occasion soon, here is the provision:

§1992. Wrecking trains

(a) Whoever willfully derails, disables, or wrecks any train, engine, motor unit, or car used, operated, or employed in interstate or foreign commerce by any railroad; or

Whoever willfully sets fire to, or places any explosive substance on or near, or undermines any tunnel, bridge, viaduct, trestle, track, signal, station, depot, warehouse, terminal, or any other way, structure, property, or appurtenance used in the operation of any such railroad in interstate or foreign commerce, or otherwise makes any such tunnel, bridge, viaduct, trestle, track, signal, station, depot, warehouse, terminal, or any other way, structure, property, or appurtenance unworkable or unusable or hazardous to work or use, with the intent to derail, disable, or wreck a train, engine, motor unit, or car used, operated, or employed in interstate or foreign commerce; or

Whoever willfully attempts to do any of the aforesaid acts or things-

Shall be fined under this title or imprisoned not more than twenty years, or both.

(b) Whoever is convicted of a violation of subsection (a) that has resulted in the death of any person, shall be subject also to the death penalty or to imprisonment for life.

As indicated by the family’s statement, the only defense is not to contest these elements but Moreno’s mental state. It seems rather that Moreno, 44, has a questionable mental state to put it mildly. He could not explain the basis of his suspicions or why he thought a hospital ship had some nefarious purpose. Prosecutors simply recounted that Moreno confessed (after he tried to flee the scene) and said that he “was suspicious of the Mercy and believing it had an alternate purpose related to COVID-19 or a government takeover.” He also later said that he wanted to “wake people up.”

That brings us back to the federal standard for insanity. Here is the code provision at 18 U.S. Code §17:

(a)Affirmative Defense.—It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.

(b)Burden of Proof.—The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

After the assassination attempt of President Ronald Reagan, Congress passed the Insanity Defense Reform Act of 1984. Like many in the criminal defense field, I am a critic of the law in making it far more difficult to bring an insanity defense. Those changes are likely to impact Moreno in a particularly profound way. It put the burden on the defense to establish insanity by clear and convincing evidence while (more importantly) eliminating diminished capacity defenses.

Moreno’s effort to flee and his operation of the locomotive could present a problem for the defense. It is better suited for diminished capacity or irresistible impulse defenses which are no longer allowed. Many doctors have rightfully objected to the elimination as ignoring available science on the scope and variation of mental illness. I believe that the Alabama Supreme Court had it right in 1887 in Parsons v. State when it held that it is not enough to simply conclude that a defendant could tell right from wrong. I discussed that standard in a prior column in relation to the Andrea Yates case. Rather there is also the question whether, through “the duress of such mental disease [that] he had … lost the power to choose between right and wrong.” Thus, “his free agency was at the time destroyed” and “the alleged crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely.”

Moreno strikes me as the prototypical example of a diminished capacity or an irresistible impulse defense. There is no indication that he failed to understand that his actions were wrong (including his attempted flight) or that his actions would put the ship (and areas around the ship) into danger.

The interesting element in this case is that Moreno was initially in state control but then turned over to the federal prosecutors for charges. California follows a similar type of M’Naghten (or McNaughten) rule that allows insanity as a defense when the defendant did not understand the nature of his criminal act or did not understand that it was morally wrong.

However, California may have been a better jurisdiction for Moreno due to its application not of diminished capacity but “diminished actuality” tests. Like the federal government, a single case resulted in a fundamental change in its insanity standards for criminal cases. It was not the Reagan assassination but the murder of San Francisco Supervisor Harvey Milk by Dan White. White offered the infamous “Twinkie defense” that he had a temporary chemical imbalance of the brain resulting in diminished capacity.

The public was outraged by the defense after White was convicted of voluntary manslaughter. Thus, in 1982, the voters eliminated the diminished capacity defense. Instead, a new law was passed allowing for “Diminished Actuality”. Under California Penal Code Section 28(a), the defense may present evidence that a defendant suffers from a mental disease, mental defect, or mental disorder “solely on the issue whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.”

This has resulted in a slightly more favorable standard for defendants as opposed to the federal system. Thus, by handing Moreno over to the federal prosecutors, state authorities put him into a more restrictive system with historically harsher sentencing on such crimes.

It is worth noting however that intentional train wrecking does have a pronounced interstate and federal element, particularly when the target was a federal ship. Even without the differences in state and federal laws, the federal prosecutors would have made a strong case that Moreno should be tried in federal court since he was trying to attack a U.S. military vessel responding to a national pandemic emergency.

69 thoughts on ““Eddie Isn’t With Us At This Time”: Engineer Charged With Train Wrecking In Alleged Attack On The USNS Mercy”

  1. Under California Penal Code Section 28(a), the defense may present evidence that a defendant suffers from a mental disease, mental defect, or mental disorder “solely on the issue whether or not the accused actually formed a required specific intent, premeditated, deliberated or harbored malice aforethought when a specific intent crime is charged.

    I’m going to reword this for CA:

    “When a specific intent crime is charged, the defendant (or his defense) may present evidence that the defendant suffers from a mental disorder (or the lesser, notion of mental defect) to determine whether the accused defendant formed the required mens rea of malice aforethought (including 1st degree: premeditated and deliberated), or the lesser specific intent crime.”

    I loathe poorly worded laws.

  2. It’s interstate and federal.

    Was he driving under the influence of drugs or alcohol, by any chance?

    1. Well, hold the phone. The ship is federal property and the ship traveled interstate to get to California, but no trade. So, not Commerce Clause? I guess it depends on whether trade is broad or narrow scope.

      Commerce Clause is now broad, post-FDR. Wickard v. Filburn is still a head-scratcher to me, but “it is, what it is.” Obviously, that’s an old case (1942), and a lot more law came thereafter, like that Weed case in 2005, hailing from Cali.

      So, not interstate bc no economic connection? Rather, a pandemic, that is a national emergency.

      I had to think this one over a bit.

      I feel criminal activity should be left to the respective States, generally speaking…there is a federal aspect bc of the national emergency.

      Idk, tough call.

      1. If someone has some corrections, for the above, let me know, I’m interested.

        When in Rome, when in Lockdown.

        1. Thanks, Joe. Now I have some new reading to entertain myself with in Lockdown.

          FRA under the U.S. DOT

  3. Committing offenses remarkable for their enormity, malice and potential for grievous harm to others should not automatically be seen as evidence for mental defect or insanity. Free people must be presumed to have agency over their acts unless a scientific case (not a circumstantial case) can be made for their lacking the necessary “ready mind” to commit a crime just because it was immensely destructive. Otherwise, we leave the door open for the next Timothy McVeigh to murder hundreds and escape a well-deserved date with a lethal injection.

    The degree to which that coin was perceived to be debased resulted from a national conversation in which the argument that, say, Son of Sam Berkowitz, suffered from a mental defect while he very systematically evaded police while stalking innocent people and murdering them for his own gratification did more to remove the old M’Naghten rule defense in many states than grandstanding by law and order candidates.

  4. “It is still not clear to me how the train could have possibly reached the ship despite traveling over an impressive distance after derailing.”

    It helps to understand the concept of momentum – the speed of an object multiplied by its mass. In the case of a freight train, this can be a huge quantity if the train was travelling fast under its own power before leaving its rails.

    The Cauchy momentum equation even lets us estimate how much the train slowed down after leaving its rails as it dissipated its momentum while plowing two ruts in the concrete and earth below it with its steel wheels and crashing through obstacles in its way.

    Were it not for the part of the train’s motive energy expended in collisions between the wheels and the concrete and dirt they broke up, the body of the train and its cars as they exerted a downward braking motion through its wheels and bogies, and the collision of the train itself with those obstacles mentioned in the article, the train would have moved inexorably toward the ship until it either struck it or fell into the water.

    If you recognize that the energy the train possessed as the engineer gunned its throttle to try and strike USNS Mercy couldn’t just disappear, it must keep propelling the train in a line from when it left its rails, even after its wheels impeded its progress more than they propelled it… that huge amount of momentum is what took it so far past the railyard toward the Mercy. It’s why freight trains cannot simply stop when cars or trucks stop before them on railroad crossings suddenly. That immense motive energy has to go somewhere.

    1. “It is still not clear to me how the train could have possibly reached the ship…”

      It helps to understand the concept of momentum
      ********************************************************************************

      If you look at the news footage from the air of the incident the engine made it about 1/4 the distance, But even had it gone 5 times farther it would have missed the ship unless the engineer could steer it to the left about 30 degrees. And even then it would have to cross about 100 feet of water to hit the ship.

      So no, understanding momentum doesn’t help much at all.

  5. That was a crazy crime. I’m so glad he didn’t hurt anyone, or manage to damage a badly needed ship serving as a mobile hospital unit. It’s chilling to think that he was out there, driving cargo and/or passengers in his train for who knows how long, while his mental stability allegedly declined.

  6. This is like something out of “Dr. Strangelove”. Thanks for the laughs when we need them. I shall have to spend more time looking at the chats page so I don’t miss these gems.

Leave a Reply