1445
Discussion of Selected Section 844 Offenses
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Section 844(c) authorizes any explosives used or intended to be
used
in a violation under Chapter 40 to be seized. Such explosives also are
subject
to forfeiture. If it is impracticable or unsafe to move or store the
explosives,
they may be destroyed after an evidentiary sample is obtained.
Section 844(e) is a specific intent offense that prohibits the use
of
the mails, telephone, or other instruments of interstate or foreign commerce
to
make threats or convey false information. As amended by the Antiterrorism
Act
of 1996, § 724, 110 Stat. at 1300, section 844(e) also prohibits
whoever, "in
or affecting interstate or foreign commerce," makes false bomb or arson
reports.
Id. A violation of this subsection is a felony that may be punished
by
imprisonment not exceeding ten years, a fine of up to $250,000, or both.
Id. at § 708, 110 Stat. at 1296.
Section 844(f) was amended on April 24, 1996, by the Antiterrorism
Act
of 1996, to exclude Federal jurisdiction for offenses against institutions
or
organizations receiving Federal assistance. Additionally, the subsection
was
subdivided and a system of tiered penalties created according to the type of
injury caused by a violation of this subsection. Where injury is limited to
buildings, vehicles or other real or personal property owned, possessed or
leased
by the United States, this is a felony punishable by a sentence of
imprisonment
for not less than five years or more than twenty years, a fine of up to
$250,000,
or both. Where any person is injured as a direct or proximate result of
this
violation, or the violation creates a substantial risk of injury to any
person,
this is a felony punishable by a sentence of imprisonment for not less than
seven
years or more than forty years, a fine of up to $250,000, or both. Where
the
death of any person occurs as a direct or proximate result of this
violation,
this is a felony punishable by the death penalty, or a sentence of
imprisonment
for not less than twenty years or for life, a fine of up to $250,000, or
both.
See Antiterrorism Act of 1996. While most courts recognize the
government's prosecutorial discretion to select the statutes a defendant
shall
be prosecuted under, see, e.g., United States v. Guess, 629
F.2d
573 (9th Cir. 1980), the United States Court of Appeals for the Second
Circuit
decided that when the offense is destruction of government property by fire,
the
government is required to prosecute using 18 U.S.C. § 844(f), rather
than a
combination of generalized statutes such as 18 U.S.C. §§ 844(h)(1)
and
1361. See United States v. LaPorta, 46 F.3d 152, 156-57 (2d
Cir.
1994). For offenses committed on or after April 24, 1996, the statute of
limitations is ten years. See 18 U.S.C. § 3295; see also
Antiterrorism Act of 1996, at § 708, 110 Stat. at 1297.
Section 844(h) was amended by the Antiterrorism Act of 1996, to
increase mandatory sentences. These changes are applicable to offenses
committed
on or after April 24, 1996. Whereas the old (h)(1) penalty mandated a
sentence,
for a first offense, of five to fifteen years, the amended (h)(1) now
requires
imposition of a ten year sentence. For a second offense under this
subsection,
the old ten to twenty-five year range was replaced with a mandatory twenty
year
sentence. These sentences must be consecutive to any other sentence.
See
18 U.S.C. § 3295; see also Antiterrorism Act of 1996, at
§
708,
110 Stat. at 1297.
Section 844(i) governs actual or attempted damage or destruction,
by
means of fire or explosives, of any building, vehicle, or other real or
personal
property used in interstate or foreign commerce. This subsection protects
"all
business property, as well as some additional property that might not fit
that
description, but perhaps not every private home." Russell v. United
States, 471 U.S. 858, 862 (1985). Protected business property retains
its
character "even when the property is temporarily closed or vacant."
United
States v. Ryan, 41 F.3d 361, 364 (8th Cir. 1994). When the offense
involves
a private residence, there is a split in the circuits on whether receipt of
interstate power is sufficient to establish the requisite interstate nexus.
Compare United States v. Ramey, 24 F.3d 602, 607 (4th Cir.
1994)(connection of trailer home to interstate electrical powergrid
established
interstate nexus), with United States v. Pappadopolous, 64
F.3d
522, 527 (9th Cir. 1995)(receipt of interstate natural gas to residence did
not
establish required "substantial" interstate nexus); United States v.
Mennuti, 639 F.2d 107 (2d Cir. 1981)(same). Finally, this subsection
was
amended by the Antiterrorism Act of 1996, and now contains mandatory minimum
sentences. Where only property damage occurs, a mandatory minimum sentence
of
five years and not more than 20 years has been added. When an injury occurs
in
connection with this offense, a mandatory minimum sentence of seven years
and not
more than 40 years applies. For offenses committed on or after September
13,
1989, but before April 24, 1996, the statute of limitations for an offense
under
this subsection is seven years. See Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. 103-322, § 320917(a), 108 Stat. 1796,
2129
(1994). For offenses committed on or after April 24, 1996, the statute of
limitations was increased to ten years. See 18 U.S.C. § 3295;
see
also Antiterrorism Act of 1996, § 708, 110 Stat. at 1297.
Section 844(n) is a newly added subsection, effective as of April
24,
1996, that, except for conspiracies to violate § 844(h), makes a person
who
conspired to commit an offense under Chapter 40 of Title 18 subject to the
same
penalty, excepting the death penalty, as prescribed for the offense that was
the
object of the conspiracy. See Antiterrorism Act of 1996, § 701,
110
Stat. 1291.
Section 844(o) is also a newly added subsection, effective as of
April
24, 1996. It governs certain conspiracies to commit offenses under §
844(h).
It states: "Whoever transfers explosive materials knowing or having
reasonable
cause to believe that such explosive materials will be used to commit a
crime of
violence (as defined in section 924(c)(3)) or drug trafficking crime (as
defined
in section 924(c)(2)), shall be subject to" imposition of a mandatory ten
year
sentence that must be consecutive to any other sentence. See
Antiterrorism Act of 1996, § 706, 110 Stat. at 1295-96. In the view
of
the
Criminal Division, the "crime of violence" under § 844(o) must be a
Federal
crime of violence. See United States v. McLemore, 28 F.3d
1160
(11th Cir. 1994) (holding that similar language in 18 U.S.C. § 924(h)
was too
unclear to conclude that Congress intended to cover State crimes of
violence).
[cited in Criminal Resource Manual 650; USAM 9-63.900] | |