United States v. Pittman

600 F.Supp.3d 597

UNITED STATES of America, Plaintiff,

v.Charles PITTMAN, Defendant.

Case No. 5:20-CR-00305-M

United States District Court, E.D. North Carolina, Western Division.

Signed April 27, 2022

John David Koesters, Chad E. Rhoades, Assistant US Attorneys, United States Attorney's Office, Raleigh, NC, for Plaintiff.

Heather L. Rattelade, Rattelade Law, Fayetteville, NC, Allen W. Rogers, The Rogers Law Firm, P.A., Fayetteville, NC, for Defendant.

ORDER

RICHARD E. MYERS II, CHIEF UNITED STATES DISTRICT JUDGE

This matter comes before the court on Defendant's Motion to Dismiss Count One of the Indictment [sic] [DE 64]. Defendant seeks dismissal of the first count in the operative Criminal Information (DE 31) pursuant to Rules 12(b)(2) and 12(b)(3) of the Federal Rules of Criminal Procedure,¹ arguing that Count One "fails to state a claim that confers subject-matter jurisdiction on this court." The matter is fully briefed, and the court heard argument on February 23, 2022. For the reasons that follow, the motion is denied.

Count One of the Information alleges that on May 30, 2020, Defendant "aiding and abetting others ... maliciously damaged and destroyed by means of fire and an explosive, a building, the Market House, located at Market Square, Fayetteville, North Carolina,² in whole or in part owned and possessed by the City of Fayetteville, an institution receiving Federal financial assistance, in violation of Title 18, United States Code, Sections 844(f)(1) and 2." DE 31. Such conduct violates 18 U.S.C. § 844(f)(1), which provides:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building , vehicle, or other personal or real property in whole or in part owned or possessed by , or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance , shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

18 U.S.C.A. § 844(f)(1) (emphasis added).

Citing a First Circuit opinion, Defendant argues that Count One fails to "adequately allege the nexus between federal financial assistance provided to the City of Fayetteville and the Market House," which is "an essential fact to trigger federal subject-matter jurisdiction." Memo., DE 65 at 9, 11 ("This motion relies on the First Circuit's decision in [ United States v. ] Hersom [, 588 F.3d 60, 67 (1st Cir. 2009) ]").³ The Hersom court determined that " section 844(f) is generally limited to property owned or possessed using federal financial assistance." Hersom , 588 F.3d at 67. Thus, Defendant argues that because the Market House was a gift to the City and not purchased using federal funds, the court has no jurisdiction to convict him under Count One.

The court finds that application of the plain language of Section 844(f)(1) to the factual allegations of this case demonstrates the court's jurisdiction in this matter. "When examining statutory language, courts generally give words their common usage." United States v. Davis , 98 F.3d 141, 144 (4th Cir. 1996) (citing United States v. Murphy , 35 F.3d 143, 145 (4th Cir. 1994), cert. denied , 513 U.S. 1135, 115 S.Ct. 954, 130 L.Ed.2d 897 (1995) ). "If the language of the statute is clear and unambiguous, courts simply apply the statute rather than interpret the statute." Id. (citing Murphy , 35 F.3d at 145 ); see also United States v. Abdelshafi , 592 F.3d 602, 607 (4th Cir. 2010) ("We remain mindful that in ‘interpreting the plain language of a statute, we give the terms their ordinary, contemporary, common meaning, absent an indication Congress intended’ the statute's language ‘to bear some different import.’ ") (quoting Stephens ex rel. R.E. v. Astrue , 565 F.3d 131, 137 (4th Cir. 2009) ). Here, the unambiguous language of the statute contemplates the malicious damage or destruction of "any building ... in whole or in part owned or possessed by ... any institution or organization receiving federal financial assistance." Thus, if an organizational owner of any building receives federal funds, and that building is damaged by fire and/or an explosive, the perpetrator of the damage may be subject to the penalties in 18 U.S.C. § 844(f)(1).

The Fourth Circuit has spoken on Section 844(f)(1), but not in the precise context presented here; in United States v. Davis , addressing what appears to be an earlier version of the statute,⁴ the court was asked to determine whether an organization receiving federal funds had "used" a personal residence damaged by arson. See 98 F.3d 141 (4th Cir. 1996). The Davis court first determined that the Virginia Housing Development Authority ("VHDA") received federal financial assistance, then proceeded to evaluate whether the VHDA "used" the damaged residence. Id. at 145 ("When the VHDA helped Miss Williams with her rent payments, it was accomplishing its statutory function. We are of the opinion that there was sufficient evidence for the jury to determine that the VHDA used Miss Williams’ house.").

In this case, there is no question that the City of Fayetteville received federal financial assistance in March 2020; in addition, there is no dispute that the Market House was owned by the City. Defendant, primarily citing Hersom , contends that since there is no evidence Market House was purchased with, or has otherwise received, federal funds, Section 844(f) does not apply. See Memo., DE 65 at 13 ("unlike the Davis property, the City of Fayetteville [ ] did not purchase Market House using federal funds, the City has not used the Market House in more than a quarter of a century,⁵ and the City has not utilized federal funds to subsidize the use or maintenance of the property"). Defendant asserts that the Government's interpretation of the statute is overly broad in that "anyone" who damages by fire the property of "any" organization that receives federal funds would be subject to Section 844(f). According to Defendant, the Government's "[f]ailure to allege any nexus between the damaged property and the federal funding provided to the City of Fayetteville in the indictment constitutes a jurisdictional defect" and Count I must be dismissed. Id. at 18. The Government counters that Defendant's reliance solely on Hersom is misplaced because that court relied on the rule of lenity, which is applicable only if a statute is ambiguous. Resp., DE 67 at 16.

A majority of courts appear to rely on a literal ("clear and unambiguous language") reading of the statute and find that application is proper if the damaged property is owned by an entity that receives federal funds. See United States v. Elliott , 684 F. App'x 685, 696 (10th Cir. 2017) ("The statute expressly covers arson of any building owned by an entity receiving federal funds."); United States v. York , 600 F.3d 347, 354 (5th Cir. 2010) (finding a legally sufficient nexus for subject-matter jurisdiction where organization who received federal financial assistance partly owned the damaged part of a building); United States v. Laton , 352 F.3d 286, 296 n.9 (6th Cir. 2003) (noting that section 844(f) "criminalizes the arson of ... any building owned by an organization obtaining federal assistance"). In fact, in Davis , the Fourth Circuit approached this question by first finding that the organization alleged to have "used" the property received federal funds , then concluded that the organization in fact used the residence. In Elliott , the Tenth Circuit rejected the defendant's invitation to follow Hersom and relied on its previous 1975 holding that Section 844 applied to the bombing of a police car owned by a county that received federal funds. 684 F. App'x at 696 (citing United States v. Apodaca , 522 F.2d 568, 571-72 (10th Cir. 1975) ). Applied here, a plain reading of the statute reveals that the Market House, damaged by fire, is owned by the City of Fayetteville, which receives federal funds.

Furthermore, "it is well settled that proper statutory interpretation must respect Congress's purpose underlying section 844(f)." United States v. Davis , 872 F. Supp. 1475, 1481 (E.D. Va. 1995). Section 844 arises out of Title XI of the Organized Crime Control Act of 1970, Pub. L. 9-452, 84 Stat. 922. The preamble to Title XI states, "The Congress hereby declares that the purpose of the Title is to protect interstate and foreign commerce against interference and interruption by reducing the hazards to persons and property arising from the misuse and unsafe or insecure storage of explosive materials." Pub. L. 9-452, reprinted in 1970 U.S.C.C.A.N. 1073, 1109. A report by the House of Representatives states that Title XI "establishes federal controls over the interstate and foreign commerce of explosives and is designed to assist the states to more effectively regulate the sale, transfer and other disposition of explosives within their borders. ... In addition to increasing present penalties for the illegal use of explosives, Title XI expands the scope of federal law to cover malicious damage or destruction by explosives of federal premises and other federal property as well as to the premises and property of institutions or organizations receiving federal financial assistance. " H.R. Rep. No. 91-1549, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.C.A.N. 4007, 4011, 1970 WL 5695 (emphasis added).

First, the court finds that the application of Section 844(f) to the factual allegations of this case is consistent with the statute's purpose in regulating the misuse of explosives; Defendant is alleged to have poured gasoline—an "explosive" pursuant to Section 844(j) —on the floor and walls of the Market House before igniting the fire. See United States v. Lee , 726 F.2d 128, 131 (4th Cir. 1984) ("The critical but straightforward question on appeal is whether this statute reaches the arson at issue, in which uncontained gasoline concededly was used as an accelerant.... We...