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1445. Discussion Of Selected Section 844 Offenses

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]

Updated May 20, 2015