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1667

Destruction of Government Property—Related Statutes

Title 18, United States Code, Section 1361 is a general statute that applies to actual destruction of government property when a more narrowly-tailored statute does not apply. Caution should be exercised when selecting the statute to apply to any given set of facts. In United States v. LaPorta, 46 F.3d 152, 156-57 (2d Cir. 1994) 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. However, in United States v. Jones, 607 F.2d 269, 271-72 (9th Cir. 1979), the United States Court of Appeals for the Ninth Circuit decided that, "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."

Section 1361 is a designated "Federal crime of terrorism" if the offense is "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct . . . ." 18 U.S.C. § 2332b(g)(5). If such is present, the FBI is the primary Federal investigative agency. See 18 U.S.C. § 2332b(f).

[cited in USAM 9-66.500]