The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
The Court has before it a motion to dismiss filed by defendants. The motion has been briefed by both sides and is at issue. The motion was filed just a few days ago, and the Government's response brief was necessarily expedited, as is this decision, because trial begins in four days. For the reasons explained below, the Court will grant the motion in part, dismissing Counts One and Three without prejudice, and continuing the trial of defendant Von Bargen.
The defendants argue that Counts One and Three of the Indictment are based on the wrong statute. Count One alleges that the defendants conspired to destroy Government property in violation of 18 U.S.C. § 844(h), and Count Three alleges that each used fire and explosives to destroy Government property, again in violation of § 844(h). That statute contains penalties for "[w]hoever uses fire or an explosive to commit any felony . . . ."
The defendants claim that they were improperly charged under § 844(h) because Congress passed a more specific statute that encompasses the allegations here -- § 844(f). That statute contains penalties for "[w]hoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any . . . vehicle, or other personal or real property in whole or in part owned . . .by . . .the United States."
The defendants argue that the Government must charge them under the more specific statute to carry out Congress's intent. They seek to dismiss Counts One and Three as mis-charged.
The use of fire or explosives to destroy Government property in a manner that constitutes a felony fits easily within the plain wording of both statutes. "Where an act violates more than one statute, the Government may elect to prosecute under either unless the congressional history indicates that Congress intended to disallow the use of the more general statute." U.S. v. Maes, 546 F.3d 1066, 1068 (9th Cir. 2008). The defendants cite no legislative history specifically supporting their claim that Congress intended to disallow the use of § 844(h) whenever Government property was destroyed. It would have been easy to draft § 844(h) to so provide: Congress could have added a short phrase to § 844(h) making it read as follows: "Whoever uses fire or an explosive to commit any felony not involving destruction of Government property may be prosecuted . . . ." The defendants urge the Court to rewrite the statute in this way, but courts do not have that authority.
Defendants argue, however, that the Second Circuit has agreed with their analysis. See United States v. LaPorta, 46 F.3d 152 (2d Cir.1994). In that case, the defendants set fire to a government vehicle and were charged under § 844(h) with using an explosive device to commit a felony. The defendants argued that the charge should be dismissed because their conduct was covered by § 844(f), a statute prohibiting prohibit the destruction of government property. The Second Circuit agreed, determining that § 844(f) is the more specific statute relating to the destruction of government property, and that it necessarily controlled the broader statute (§ 844(h)) because otherwise § 844(f) would have no practical effect. The Second Circuit reached that result by reading § 844(h) together with 18 U.S.C. § 1361, which prohibits the wilful destruction of Government property. The court concluded that these two statutes "would prohibit willful destruction of government property by fire, covering every circumstance that § 844(f) -- malicious destruction of government property by fire -- covers. Such a construction would rob § 844(f) of all practical effect, surely not the Congressional intent." Id. at 156. Allowing charges for destruction of property to be brought under § 844(h) would, according to the Second Circuit, render § 844(f) superfluous because the government would always bring those charges under § 844(h), which contained more stringent penalties. Id.
Although the Ninth Circuit has not addressed this specific issue, the Circuit has held that "a general statutory provision may not be used to nullify or to trump a specific provision," the same general principle relied upon by the Second Circuit in LaPorta. See U.S. v. Fish, 368 F.3d 1200, 1205 (9th Cir. 2004) (quotations omitted). The issue thus becomes whether LaPorta is correct that § 844(h), as the "general" statute, must give way to the more "specific" provisions of § 844(f).
Section 844(f) covers the use of fire or explosives to destroy Government property whether the act is a felony or not. Section 844(h) covers the use of fire or explosives to commit a felony whether Government property was destroyed or not. Thus, each statute covers some ground the other does not. In essence, their boundaries are like conjoined circles, neither completely subsumed in the other, with some common ground and some mutually exclusive ground. Seen in this light, § 844(h) is not the more "general" statute and § 844(f) is not the more "specific" statute.
A statute "is rendered superfluous only if a general statute can cover every possible circumstance covered by the specific." Bobb v. Attorney General of U.S., 458 F.3d 213, 224 (3rd Cir. 2006). That is simply not the case here when only the two statutes at issue are considered. Even if the Government decided to charge all felonies under § 844(h), that decision would not render § 844(f) superfluous because non-felonious destruction of government property by use of fire or explosive must still be charged under § 844(f).
However, LaPorta does not confine its reading to just the two statutes -- it adds § 1361 to the mix, and concludes that this "cocktail" of statutes -- § 844(h) and § 1361 read together -- would render § 844(f) superfluous if charges of destruction of Government property could be brought under § 844(h). In the expedited resolution this motion requires, the Court has not had the time to consider this analysis in great depth. Typically, when Ninth Circuit law does not exist, the Court would have little reluctance turning to the Second Circuit for guidance. But the Second Circuit's analysis here gives the Court pause: The Court is concerned that importing § 1361 into an otherwise simple analysis completely changed the result. However, the Second Circuit did follow the general principles governing ...