Dissenting:

I respectfully dissent-.

Notwithstanding the statutory mens rea requirement that the defendant act “willfully and maliciously,” the majority holds that, under the federal arson statute codified at 18 U.S.C. § 81 , the government need not prove that the defendant had any intent whatsoever to burn a building, effectively construing the statute as establishing a strict liability offense. Majority at 634. This interpretation runs counter to overwhelming precedent, defies reason and common sense, and creates a split with the only other circuit to interpret § 81.

The majority affirms R.S.W.’s arson conviction under § 81 on a basis different from the one relied upon by the district court. See Majority at 634. The district court followed the interpretation of § 81’s intent requirement of “willfully and maliciously” 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 in § 81 as “includfing] acts done with the knowledge that burning of a building is the practically certain result: a person acts knowingly with respect to a material element of an offense [ ] ... if the element involves a result of his conduct [and] he is aware that it is practically certain that his conduct "will cause Such a result.” Id. at 240-41 (citations and internal quotation marks omitted); see also Devitt & Blackmar, Federal Jury Practice and Instructions § 22A.05 (Arson, 18 U.S.C. § 81 ) (“As used in these instructions, the term ‘willfully and maliciously’ means either to knowingly set fire to or burn a building, structure, vessel or machinery deliberately and intentionally (‘on purpose’), or to act with the knowledge that burning a building, structure, vessel or machinery is practically certain to result.”). The majority, by contrast, fashions its own novel construction, purportedly derived from the common law. 2

*638 At common law, arson “is the wilful and malicious burning of the dwelling place of another.” Wharton’s Criminal Law § 334 (15th ed.1995). As such, “[a]rson was one of the earliest felonies in which the mental element was stressed.” John Poulos, The Metamorphosis of the Lam of Arson, 51 Mo.L.Rev. 295, 319 (1986) (internal quotation marks and footnote omitted). The required intent “cannot be inferred from the mere act of burning,” 5 Am.Jur.2d Arson and Related Offenses § 48 (1995), although it may be inferred from such facts as the defendant’s removal of “most of the contents of the building shortly before the fire,” “threats to destroy the property later burned,” and “ill will, unfriendly relations and trouble between the defendant and the owner of the property burned,” id. (citing numerous cases).

“Absent evidence to the contrary, it is assumed that every burning is accidental and not the result of criminality. Therefore, the burden is on the prosecutor to show that it was wilful and malicious.” Wharton’s § 337; see also State v. Whisler, 231 Iowa 1216 , 3 N.W.2d 525, 527 (1942) (“It must be established [to sustain an arson conviction] that the burning was willful and malicious and was not an accidental burning____ In the absence of such proof the presumption obtains that the fire was accidental, or at least that it was not of criminal origin.”) (citations and internal quotation marks omitted); Commonwealth v. Mezzanotti, 26 Mass.App.Ct. 522 , 529 N.E.2d 1351, 1355 (1988) (“Excluded from that concept [of malice] are acts that are lawful or the result of an accident or mistake.”); State v. Baker, 115 Vt. 94 , 53 A.2d 53, 55 (1947) (“The mere fact of the burning of a building is not sufficient to establish the corpus delicti, for ... it will be presumed that the fire was the result of accident or some providential cause, rather than the result of criminal design.”) (common law offense subsequently superceded by statute). The majority begins well enough by citing numerous sources articulating this same standard. See Majority at 634-35.

Inexplicably, the majority then concludes, without any citation to authority, that “[a]t common law, therefore, arson did not require proof of an intent to burn down a building, or of knowledge this would be the probable consequence of the defendant’s act.” Majority at 635. This conclusion directly contradicts the authority that the majority cites. It is basic hornbook law that “[t]o constitute arson, there must be an intent to bum a building or other structure, and [the] accused must be consciously aware that his conduct is of such a nature that fire would result.” 6A C.J.S. Arson § 6 (1975); see also Rollin M. Perkins & Ronald N. Bryce, Criminal Law 276-77 (3d ed. 1982) (“[T]he state of mind which constitutes guilt of common law arson ... is either an intent to burn the dwelling of another, or an act done under such circumstances that there is obviously a plain and strong likelihood of such a burning.”).

The majority goes on to state correctly that the intent requirement for arson is met by proof that the defendant set fire to the building “intentionally.” Majority at 635. Unhappily, the majority mistakenly applies that standard, not to the proscribed conduct of setting fire to a building, but to R.S.W.’s mental state toward setting the paper towel aflame. See Majority at 636. In other words, the majority proposes under the mantle of the common law that, to sustain a conviction under § 81, a defendant need not have any criminal intent bearing on the proscribed conduct of burning a building as long as the defendant’s voluntary actions were the cause in fact of the burning.

The majority’s conclusion demonstrates a profound misunderstanding of the common law. As the classic treatise on common law arson explains: “An intent to burn a building may be distinguished from an intent to burn its contents. If it appears that the accused had merely an intent to set fire to the contents, he cannot be convicted under an indict *639 ment which alleges a criminal intent to burn the building.” Arthur F. Curtis, A Treatise on the Law of Arson 81 (1936). The treatise goes on to provide a hypothetical with facts nearly identical to those in the instant case: “This is well illustrated by a ease where the prisoner threw pieces of lighted paper in a postoffice letter box in a house with the intent of burning the letters, but not the house, and it was thought that he was not guilty of felonious arson.” Id.

Modern cases as well continue to follow this rule. See, e.g., Grable v. Varela, 115 Ariz. 222 , 564 P.2d 911, 913 (1977) (holding that intentionally setting a grass fire that spread out of control to bum a house was insufficient to satisfy the arson statute’s intent requirement of “willfully and maliciously”); People v. Fabris, 31 Cal.App.4th 685 , 37 Cal.Rptr.2d 667, 672 (1995) (explaining that, although arson is not a “specific intent” offense, 3 conviction nevertheless “requires an intent to burn a structure when the burning is caused by the act of setting fire to a substance which is not itself the subject of the arson statute”); T.E. v. State, 701 So.2d 1237, 1237-38 (Fla.Ct.App.1997) (holding that the burning of a wooden shack caused by a boy who ignited a piece of paper at the end of a metal pipe was insufficient to meet arson statute’s intent requirement of “willfully and maliciously”); People v. Lindsey, 83 Mich.App. 354 , 268 N.W.2d 41, 42 (1978) (overturning arson conviction despite evidence that fire was started by human means with the use of paper because “an inference that the fire was negligently started ... appears equally as plausible as the prosecution’s inference that the fire was wilfully and maliciously set by the defendant”); Isaac v. State, 645 So.2d 903, 907-09 (Miss.1994) (holding that the accidental burning of the door to an apartment by lighting a towel with a cigarette is not arson); see also, e.g., Walters v. Government of the Virgin Islands, 172 F.R.D. 165, 168 (D.Vi.1997) (construing arson as the malicious burning of “any building of another with the intent to destroy it”); Veverka v. Cash, 318 N.W.2d 447, 450 (Iowa 1982) (explaining that common law arson requires a “general intent to burn a building”); Stokes v. State, 86 Okla.Crim. 21 , 189 P.2d 424, 427 (1948) (construing arson as “wilful and malicious burning of a building with intent to destroy it”), as modified, 86 Okla. Crim. 21 , 190 P.2d 838 , overruled on other grounds by Parker v. State, 917 P.2d 980, 986 (Okla.Crim.App.1996); State v. Nelson, 17 Wash.App. 66 , 561 P.2d 1093, 1095 (1977) (explaining that common law arson requires “a general malice or intent to bum some structure”).

Common sense dictates that an arson conviction requires more than a building burned by a smoldering cigarette butt tossed into a trash can or by lighted candles placed too close to the drapes. Yet, these hypotheticals are indistinguishable from the facts in the instant case. 4

As recounted by the majority, on the morning of the fire, R.S.W. was playing with a lighter while talking to a friend in the girls restroom at school. After twice lighting and then extinguishing the edge of a paper towel protruding from a dispenser attached to a privacy partition inside the restroom, R.S.W. *640 for a third time lit the edge of the paper towel and, prior to leaving the restroom with her friend, once again blew the flame out.

After leaving the restroom, R.S.W. and her friend purchased a soft drink from a machine located just outside the restroom and then proceeded to wander through the halls of the school. Eventually, they went to and participated in a gym class. R.S.W.’s friend testified that R.S.W. seemed “panicky and scared” in response to the news that the school had to be evacuated on account of a fire originating in the girls restroom. At trial, the Deputy Fire Marshall who investigated the 'case testified that it would have been possible for a flame on the paper towel that had been blown out to reignite if supplied with a new oxygen source, such as the one that could have resulted from opening and closing the door as the girls left the restroom.

Nothing in the record suggests that R.S.W. thought that the smoldering paper towel would reignite and cause a blaze that would ultimately consume the school. R.S.W. and her friend did not run or attempt to hide in anticipation of a fire, or stay and observe whether some type of fire would, in fact, occur. Instead, they purchased a soft drink from a machine located outside the restroom, and then walked the halls of the school before attending a gym class. The girls’ conduct is inconsistent with and clearly does not support the finding that R.S.W. knew that her conduct would result in the school burning down.

The factual finding relied on by the district court to support its conviction of R.S.W. was that she “was aware that an unattended fire in a building can result in the building burning.” This factual finding, however, does not meet the mens rea of knowledge with “practical certainty” as to the result adopted by the district court from the Tenth Circuit as its standard. In other words, under the district court’s legal standard, R.S.W. could not as a matter of law have been convicted based upon the factual finding it cited as determinative.

The majority selectively quotes a different factual finding than the one relied on by the district court as satisfying the intent requirement of § 81: that R.S.W. “knew the likely result of her conduct would damage the school.” Majority at 636. This finding, however, is not supported by the record. The record certainly shows that R.S.W. demonstrated a serious lack of judgment. She should have known better. She may have even been reckless. But, nothing in the record remotely suggests that she knew that her actions would cause the school to burn down.

The majority appears to acknowledge as much, but then in retreat suggests that even if the district court erred in its finding, “[gjiven that common law arson is a general intent crime, that finding is surplusage.” Majority at 636. The majority is wrong as to the law.

While it is true that common law arson is not a “specific intent” crime, it does not follow that an arson conviction requires nothing more than the lowest form of “general intent.” The phrase “general intent” encompasses many forms of the mental state requirement not designated by “specific intent,” or “purpose.” See Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 3.5(b), (e) (1986); see also United States v. Bailey, 444 U.S. 394, 405 , 100 S.Ct. 624, 632 , 62 L.Ed.2d 575 (1980)' (“In a general sense, ‘purpose’ corresponds loosely with the common-law concept of specific intent, while ‘knowledge’ corresponds loosely with the concept of general intent.”).

The term of art, “intentional,” on the other hand, as used to describe the common law offense of arson, has traditionally been defined to include both purpose and knowledge, “and thus it is usually said that one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts.” LaFave & Scott § 3.5. Only with this understanding then does it become clear why, as applied to arson, “[mjalice is the deliberate and intentional firing of a building, or other defined structure, as contrasted with an accidental or unintentional ignition thereof.” 6A C.J.S. Arson § 8 (1975).

*641 Although the majority claims that its interpretation of “willfully and maliciously” is rooted in the common law definition of arson, see Majority at 635, the majority gravely misconstrues the authority on which it purports to rely, and arrives at an interpretation bearing no resemblance to the common law crime of arson and requiring no criminal intent with regard to the proscribed conduct of burning a building. Under the proper mens rea standard, the findings of the district court, even if they were supported by the record, could not-as a matter of law sustain a conviction for arson pursuant to § 81. I would reverse.

. The Tenth Circuit in United States v. M.W. derived its construction of § 81 by analyzing under the Model Penal Code two Arizona state cases interpreting an arson statute that similarly included a mens rea of “willfully and maliciously.” See 890 F.2d at 241 (contrasting Grable v. Varela, 115 Ariz. 222 , 564 P.2d 911, 913 (1977) (intentionally setting a grass fire that spread out of control to burn a house was merely reckless and therefore insufficient to satisfy the intent requirement), with In re Appeal in Pima County Juvenile Action, 116 Ariz. 519 , 570 P.2d 206, 208-09 (1977) (assistance in setting a fire with the knowledge that a codefendant intended to bum a building was sufficient to satisfy the intent requirement)).

. It is worth noting as a threshold matter that the majority skims over both textual analysis and review of legislative history in its haste to reach the conclusion that Congress encoded the common law in § 81. Only one sentence is devoted to textual analysis, in which the majority completely ignores the term "maliciously” and selectively quotes a Supreme Court case to support the proposition that interpretations of "willfully” are not binding or helpful. Majority at 634 (citing Ratzlaf v. United States, 510 U.S. 135, 141 , 114 S.Ct. 655, 659 , 126 L.Ed.2d 615 (1994)). In fact, the Supreme Court in Ratzlaf warned that judges should hesitate to treat statutory terms "as surplusage,” and that "resistance should be heightened when the words describe an element of a criminal offense.” 510 U.S. at 140-41 , 114 S.Ct. at 659 ; see also, e.g., State v. Long, 243 N.C. 393 , 90 S.E.2d 739, 741 (1956) ("It is an essential element of the common law crime of arson that the burning was done or caused maliciously.”).

*638 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 1948 of two previous offenses into the new federal arson statute codified at § 81, the separate intent requirements for those offenses-''willfully and maliciously” for section 285 but only "maliciously” for section 286-were reconciled as the ostensibly higher mens rea of "willfully and maliciously.” See 18 U.S.C. §§ 464 , 465 (1940).

. Contrary to the majority’s puzzling assertion, Majority at 635 n. 6, the California Court of Appeals in People v. Fabris held that its arson statute codified a "general intent” crime. See 37 Cal.Rptr.2d at 675 ("[Ajrson can be categorized as a general intent crime.”); see also id. at 672 ("Stonewall F. [ 208 Cal.App.3d 1054 , 256 Cal.Rptr. 578 (1989),] does not characterize arson as specific intent crime.”).

. The majority vainly attempts to explain away these hypotheticals by suggesting that such fires would be “accidental” or "set with justification or legal excuse." Majority at 635 n. 5. However, these assertions assume the conclusion. Legal excuse or justification is what keeps exploding a building for demolition purposes from constituting arson, and does not properly affect analysis of the mens rea. Moreover, intentionally lighting a cigarette is not legally excused or justified, for example, in hospitals and most office buildings and schools, just as it may not be legally excused or justified for a draft protester to bum his draft card at city hall.

Of course, one can commit arson with a cigarette under the right circumstances (e.g., intentionally and with a gallon of gasoline). On the other hand, cigarettes and paper towels, even if intentionally ignited without legal excuse, may cause a fire that ultimately bums down a building through carelessness or negligence. This is not arson. Nothing in the record suggests that the burning in the instant case is any less "accidental."