“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. stress flushes the nutjobs out of the closet and into action’

    but the massive rising unemployment will push into action a lot of sane yet desperate people

    3 months out it will be a long hot hungry summer

  2. Dr. Fausi has to have personal protection because of death threats, and this train engineer thought the ship was here based on a conspiracy theory that it was a government take-over. Pastors are endangering their flocks and everybody else. The “OAN” network is sitting inside the press room in the White House. And “FOX NEWS” who only last week was calling it all a over-blown hoax, along with the impeached President. And the Governor of Georgia said he had no idea how bad the virus is, cause no one told him. So yes, we do have a mental health issue in our country. And of course Trump won’t let people sign up for new enrollments for the ACA.

    1. And Cuomo is having to go out and offer to partner with manufacturers of PPE in the States because NY is going to run out next week. That equals the definition of an absent leader on the federal level.

      It’s straight Hunger Games.

      1. Trump’s incompetence has always been in plain site, now everybody is going to pay for it.

  3. In 1966, Charles Whitman killed his mother and wife, then climbed the Univ of Texas bell tower where he shot, wounded and killed many more.

    Before he did so, he left a letter saying he loved his wife and mother dearly, yet he had uncontrollable urges to harm them. He did not understand it and went to see at least one doctor about his thoughts before committing mass murder. In the letter he said he hoped his brain could be analyzed by scientists to figure out what had gone haywire.

    They did. They found a tumor growing in the part of the brain that regulates aggression.

    ============

    How about this. Instead of trying to bend over backwards to be compassionate to this guy you think has a jumbled mind, why don’t they just scan his brain and see if it has any ACTUAL abnormalities. If there are, then try him with mercy. If there are no detectable abnormalities then presume evil intent and fry him unmercifully.

  4. It’s apparent that Eddie hasn’t been with us for quite some time.

  5. This is fascinating.

    I tried looking for other examples of engineers purposefully derailing their train, but couldn’t find any. I hope they release some more information about Mr. Moreno. He sounds interesting. Probably be a lot of tun to watch X-Files with. He reminds me of a friend’s dad I’ve known for a long time. The man sees conspiracies EVERYWHERE – so much fun.

  6. What is this reluctance we have to just get rid of people like this??? This dude just wrecked a train and caused who knows how many millions of dollars of damages that will have to be borne by the people there. Everybody dies, so why not just advance the timetable on people who are too “mentally ill” to not hurt people and things. If somebody had a brain tumor and it could be removed then that is one thing. But people like this guy, who was probably on drugs if I had to guess, then why waste time and money locking him up for decades?

    We don’t have to be cruel or anything, but we could rufie people like this, and then lethally inject them. It would also reduce humanity’s carbon footprint! Plus I would bet that if we began executing the mentally ill who did criminal things, then you would see a whole lot better behavior out of that set of people.

    Squeeky Fromm
    Girl Reporter

    1. Reducing humanity and executing the mentally ill has been done before, of course you knew that and most likely you thought it was a good idea then, as you do now.

  7. Sounds like a perfect case to warm up for cleaning up the wreckage of the Trump administration. An adept metaphor. Navigating the state and federal bridge. The insanity and completely failed and futile attempts at disruption. Actually this guy has caused far less damage than Trump.

    If only Trump had stopped 250 feet from the target.

    Glad you’re stepping away from the fan tributes to Reagan federalism — at least for today. Professor, sometimes an ideology just so completely does not fit the present challenge that it’s existence should be sharply limited until able to move toward it again. Hopefully in a new and sharpened way.

    1. Another case of TDS (and I am not talking about the crazy locomotor engineer who derailed the train)

    2. Why blame Trump when this guy merely took a page out of Mad Maxines and Piece of Schiffs playbook?

    3. The insanity and completely failed and futile attempts at disruption.

      That is a perfect way to describe the Democrat party in the Trump era.

        1. Paulie, all we know about Olly is that he was in the navy during the Gulf War. Since then Olly has been sniping at liberals on Turley’s blog from an undisclosed location. Rarely, if ever, has Olly taken the initiative and put forward his world view. He’s just a bitter old navy guy fed-up with liberals.

          1. Ahh. Okay. Curious what he thinks of Covid 19 sweeping through that carrier then?

          2. Olly has a distinctive perspective and set of interests which is not difficult to differentiate from that of Allen or Paul Schulte or Mespo or Karen or yours truly (much less the more peculiar figures who post here). It’s not difficult to divine what it is if you’re reading. While we’re at it, the term ‘bitter’ does not mean what you fancy it means.

              1. Seems like it must be hard for anyone used to the chain of command to not see what’s in plain view?

                Not difficult at all. Especially after having to watch the previous 3 presidents sellout this country to China.

                1. And Trump hasn’t??? His own daughter has pivoted her nepotism awarded job into multiple agreements to do business in China.

                  1. Let’s have a full investigation of the Trump’s and the Biden’s with regard to family business practices with China.

            1. Absurd, one thing all you Trumpers have in common is a shocking sense of cynicism and peculiar belief that the Culture Wars are top priority.

              In the minds of Trumpers, the Culture Wars are an extension of the 40 year Cold War between the communist world and western democracies.

              Trumpers think that the Cold War morphed into a Civil War between Conservatives and Liberals. Conservatives see themselves as the real Christian Americans. Liberals, they believe, are godless communists. And even though Trump was never a real Christian, he’s an anti-intellectual and that’s good enough; hence the ‘shocking level of cynicism’.

              1. Absurd, one thing all you Trumpers have in common is a shocking sense of cynicism and peculiar belief that the Culture Wars are top priority.

                The term ‘cynicism’ does not mean what you fancy it means.

                We have ‘culture wars’, Peter, because your side insists on corrupting every institution with your noxious political ideology, often through surreptitious administrative maneuvers, agency edicts, and judicial decrees. (And, where you have a majority, legislated abuse as well). Why not learn to recognize the autonomy of the different components of social life, and learn to leave others in peace? You cannot manage it.

              2. Seth, if you think Trump phenom is all about some ossified turd of ideology from the Cold war, you really don’t get it. That sort of simplistic stuff went out in the era of Geo bush Sr and by Jr it was really outre, not animating anybody’s imagination anymore. It’s 2020; the USSR collapsed 30 years ago, nearly

                in a nutshell, the dichotomy is more between nationalist-populism, and globalism

                globalism is what’s withering on the vine. but it’s a powerful vampire, and not going to stop sucking all our blood very easily

                communism, is over, as an economic theory. doesnt work. not as how the Trotskyite professors spin it…… but as a political ideology, it still has some legs, because, in practice, particularly in Asia, communists mostly have been just what we call here, NATIONALISTS.

                this was a key to understanding the US strategic and diplomatic failure in Vietnam. It’s why I took the nom de plume Mr Kurtz. And you can see in Vietnam today, the ruling Communist party there is stricly a Vietnamese nationalist one party state. We are not stuck in the 70s hating them.

                It’s also key to understanding where we go from here. we draw inspiration from the past, but are informed by the facts of our present existence, and we will a way forwards into the future.

                in the 20th century, liberalism and its gemini twin capitalism vanquished both fascism and communism. today, liberal-capitalism has morphed into globalism, a system where the language of democracy and equality masks a massively unfair division of wealth among a tiny elite of executive and managerial types, and the rest of us. Globalism seeks to extend and consolidate the victory of liberalism and capitalism by destroying the national borders that once helped liberalism thrive. Because only NATIONS can stand up to global corporations and their utterly stupid wrecking of all social order and justice.

                Make no mistake, global corporations, capitalism itself, has been making hay off the slave labor in China ever since Deng Xiaoping opened the place up for business. We have had cheap junk to buy at walmart, but the execs have had super cheap lavor for all their offshoring to earn them record profits and endless millions in bonuses as they wrecked American industry, and made us dependent on China for things as simple as paper masks ! What have WE gotten out of this, not much. That’s why a lot of us voted for Trump and Trump is delivering on some of it and will have a chance to deliver more. For the benefit of all of us Americans.

                Lenin had an interesting essay about Imperialism as a late stage of capitalism. It’s hard for me to consider “globalism” and not remember this prophetic essay

                But nationalism is making a big comeback. You will have a chance to hop on board or not. We all will have a chance to take a hard look at such nonsense as the “global supply chain,” and “free trade,” or “the free movement of labor” (ie unfettered immigration) and international financial markets ,and other such pretenses and shibboleths of globalism, and re-evaluate whether we want America to be hogtied by such things in the future or not

                Trump has lead the way forward to a degree,. But the covid-19 is a tipping point, a chance for the American people to either assert dominance over international business interests, which have been playing us all like pawns for decades, or to be finally crushed by them. Trump is muddling along, caught flat footed at times, obviously betrayed and bedevilled by one faction after another pulling his strings. I wish him well! And whomever comes after him, at whatever time.

                Trump will face a very important choice on whether to put the interests of America as a whole first or American-based international business executives interests firsts. They are pigs at the trough, making sure they get the lions shares of all the bailouts, and make no mistake, some of these bailouts are going to f fail. When the BKs start coming in, let the failed executives take it on the chin, not just the workers! It’s critically important now that he shows the kind of leadership that FDR did.

                If he does, then we will come out of this mess stronger than ever

                Rejecting the false dichotomies such as Seth has offered, is critical to keeping our minds limber and facile enough to move rapidly forward as needed. Do not be caught in the tropes of the past!

                Here I want to recommend the work of economist Michael Hudson who today was on NPR

                https://www.marketplace.org/2020/04/02/covid-19-debt-jubilee-forgiveness-easing/

                we have to make sure all these bailouts happening do not just save the rotten executives and their usurious business models from going under. let some of them go under now. some of them should have gone under in 2008. Now it’s time to let some of the creative destruction of chaos take the risk takers and billionaires down with it. Enough big business socialism of externalizing risks and internalizing profits.

                The people have to live. a more just form of private enterprise can arise now which is not controlled by the rapacious spirit of global financial interests, but puts national interests first.

                Over the rest of the year, what i am talking about will become crystal clear.

                1. MIchael Hudson– from the NPR markeplace show linked above:

                  “This is part of our “Econ Extra Credit” project, where we read an introductory economics textbook provided by the nonprofit Core Econ together with our listeners.

                  What is the next step to prop up the virus-battered United States economy, even as the $2 trillion stimulus package only begins to percolate out? Well, Republicans and Democrats have returned to talking about a massive infrastructure building program that would employ lots of people. That would be a post-COVID-19 intervention.

                  More immediately, some economists want more done to ease the debt owed by individuals, small businesses, cities, towns and states. Michael Hudson, a professor of economics at the University of Missouri at Kansas City and president of the Institute for the Study of Long-Term Economic Trends, is one of those economists.

                  “Right now, America’s economy is strapped,” said Hudson, author of “…and forgive them their debts.” “America could have another economic miracle by writing down the debts.”

                  The following is an edited transcript of Hudson’s conversation with the Marketplace Morning Report’s David Brancaccio.

                  David Brancaccio: Now you look at this as an economist and not as a biblical scholar, but what, in the Old Testament there are references to everybody getting released from their debt every 50 years?

                  Michael Hudson: Well, the Jubilee Year of Leviticus 25 was based on Babylonian practice for over 2,000 years. And, apparently, when the Jews were returned after the Babylonian captivity, they brought back the practice of debt cancellation, called “andurarum.” When any new ruler would take the throne, the first thing they would do would [be to] free the personal debts. And they wrote this Babylonian law into the center of the Mosaic Law when they edited the Bible. You would forgive the personal debts that had mounted up, basically, among the small holders on the land. You would liberate the “bond-servants” — people who had been obliged to work off their debts in labor — and you would return any land that was forfeited. And these three parts of the Jubilee Year were exactly what was done and what continued to be done throughout almost all of the Near Eastern kingdoms — Mesopotamia, their neighboring Near Eastern kingdoms, even Persia, according to Herodotus.

                  Brancaccio: Wow. I mean, you’re talking precedent there. Now, you think we need something like this now and that we need it quickly?

                  Hudson: A debt cancellation is needed when debts go beyond the ability to be paid, and all personal debts, all non-business debts, tend to mount up beyond what they can be paid. You have debt-strapped individuals right now who lost their jobs, or their stores have closed down, or they work in restaurants and they’re unable to earn the money to pay. Arrears are rising on student debts [and] on automobile loans, it’s obvious that the debts are growing so large that the only way of paying them is to foreclose on the property, or let them be homeless, or kick them out in the streets. And the reason that the Babylonians and the early Jews cancel the debts was not because they were idealists. They weren’t egalitarians. All the debts have to be canceled by the government. And the government cancels it because it doesn’t want to make the economy fall into austerity. It doesn’t want people to lose their livelihood and become unproductive members of society. The reason your cancel the debts is you want to preserve stability.

                  Brancaccio: But outside the historical context, in the context of this pandemic, are you thinking of debt cancellation for maybe a few months till we get through the worst of this? Or you’re talking about going further than that?

                  Hudson: Well, certainly, you would cancel the debts for a few months, but just the moratorium wouldn’t work. You can simply say the landlord’s are not going to collect for three months, as the rule is in New York, for instance. Suppose you’re a restaurant and you say, “OK, we don’t have to pay rent in three months, but we’re not getting any business.” And when business begins again, they’re still not going to have the money to pay the rents, which are a rental debts to the landlords, which are the most expensive expense in businesses. So the problem is, you can’t let these debts accumulate, or you’re going to have defaults right across the board. The states and localities, New York City and New York state, have to pay unemployment insurance, and all the other costs associated with the coronavirus out of their own revenues, and yet they have to balance the budget. If New York state and City have to repay all of the debts that they run up, then you’re going to have the whole character of government change. And in order to prevent the economy from being distorted, you have to adjust simply say these debts won’t be paid.

                  Brancaccio: So you’re not just talking people, families, households being released from debt, you’d like to see this extended to maybe state and local governments?

                  Hudson: Yes. And already there is a discussion about how to do this for Third World countries that export raw materials, whose prices are collapsing because of the slowdown, and that are dependent on tourism. So you’re going to have a lot of governments throughout the world that owe their debts in dollars not being able to repay. So this is a worldwide phenomenon.

                  Brancaccio: I mean, it’s quite a cost to this. Will any lender ever lend another penny after this?

                  Hudson: Of course. Lenders will always begin lending money as long as they see that there’s a normal ability to pay. The problem is that somebody has to lose when the debts can’t be paid. And the question is who should lose? Should it be the poorest people, should it be the wage earners? Should it be the small businesses, or should it be the banks? Well, one way or another, it has to be either the banks, or else the government will simply create the money to reimburse the banks. But in terms of justice, the banks have made an enormous amount since 2008. They were bailed out in 2008, their net worth and their stocks have soared in value. So, logically, the banks should lose something and bear some of the costs. And the government can simply pay for the cost just as it pays for military expenditures, or for Social Security, or anything else. The government’s able, simply, to print the money. What makes it hard today is that the debts are owed to the banks, and to the landlords, and to private creditors, and they’re very politically powerful. So this is going to be the political struggle or conflict that is unfolding in the next few months in the United States.

                  Brancaccio: And I just learned this in preparation for talking with you today, professor, they did a version of a debt jubilee in the years that followed the Second World War in Germany?

                  Hudson: Yes, that was the economic miracle. And Germany canceled all debts except for the debts that employers owed their employees. And everybody kept a minimum balance. And it was easy for the allies to cancel the German debts in 1948, because most debts were owed to the old Nazis, or the people who had been Nazis, or to banks that were part of the Nazi regime. So the Allies didn’t want to let the creditors, who were the old Nazis, have power over the coming German democracy. So they canceled the debts, and Germany, as a result, its industry and its families were debt free, and that’s what enabled it to recover. And that was the essence of the German economic miracle: the debt cancellation. Right now, America’s economy is strapped. America could have another economic miracle by writing down the debts.”

                  1. the foundation of this argument is “the government must print the money because it can”. Of course, that dilutes the worth of money already in the economy.

                    Those of us with 401Ks and certificates of deposits and savings accounts get screwed even worse than we did in the 1970s, when inflation ate up the worth of everyone’s savings – it actually made money worth less as it sat in checking accounts. And writing down the national dept and the aggregate private debt is worse than that – it’s an open-air, publicly-blessed mugging of anyone stupid enough to invest for the future.

                    The US government owns immense assets. It should, if it sees the need to pay off all public and private debts, to sell its assets until that money is raised.

          3. While we’re at it, his location is not undisclosed, nor his approximate age, nor the year he entered the Navy.

          4. Anyone that’s been on this blog for more than a cup of coffee and is capable of connecting with the left half is well aware of my worldview. You meet only half of that criteria and that means you could drink a pot and still not have a clue.

          1. The flat side of the earth is represented well on this blog, FW. They seem to be a dedicated lot.

        1. It’s almost like Republican should get shortened to Repub in response. It’s become so ingrained though. They might not notice.

          1. I don’t believe they really care as much as you do about such a trivial issue. I’m Independent, so there’s that.

  8. If you are mentally ill to believe a cockamamie theory, Rachel Maddow would have committed long ago. No insanity defense for him.

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