USA v. King

• Court: District Court, D. New Hampshire
• Decided: April 16, 1993
• Docket: CR-92-41-B
• Status: Published

Opinion

USA v. King CR-92-41-B 04/16/93

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 92-41-01-B

Robert King

O R D E R

Before the court in this criminal matter is defendant's

"Motion to Dismiss on Grounds of Double Jeopardy" (Document no.

29). For the reasons discussed below, the court grants

defendant's motion.

FACTS

The relevant facts are not in dispute. On June 3, 1992, a

Federal Grand Jury returned a Three-Count Indictment against

defendant Robert King. See Document no. 1. On December 28,

1992, King entered guilty pleas to Counts I and III, and the

Government, as a condition of the pleas, agreed to dismiss Count

II. See Document no. 28. Count I charges that King violated

Title 18 U.S.C. § 844(f) when he "maliciously damaged and

destroyed, and attempted to do so, by means of fire and explosives, real property . . . which . . . was then owned by the

White Mountain National Forest and the United States of

America."1 See Document no. 1. Count III of the Indictment

alleges that King "willfully and without authority set a fire" on

the same "land and real property" owned "by the White Mountain

National Forest and the United States of America" in violation of

Title 18 U.S.C. § 1855.2 See id.

1Section 844(f) provides in relevant part:

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, possessed, or used by, or leased to, the United States . . . shall be imprisoned for not more than ten years, or fined not more than $10,000, or both . . . .

18 U.S.C.A. § 844 (Supp. 1993) (emphasis added).

2In pertinent part, section 1855 states:

Whoever, willfully and without authority, sets on fire any timber, underbrush, or grass or other inflammable material upon the public domain or upon any lands owned or leased by or under the partial, concurrent, or exclusive jurisdiction of the United States . . . shall be fined under this title or imprisoned not more than five years, or both.

18 U.S.C.A. § 1855 (Supp. 1993) (emphasis added).

2 DISCUSSION

I. Arguments

King argues that his convictions on Counts I and III are

barred by the protection against multiple punishments embodied in

the Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution.3 Specifically, King states:

[T]he act or acts complained of as to Count I and Count III are identical in that the means of setting the fire is the same for each Count, the property destroyed is the same for each Count, and the vehicle of destruction, that is fire, is the same for each Count.

Memorandum of Law in Support of the Defendant's Motion to Dismiss

Based on Double Jeopardy (Document no. 29) at 2 [hereinafter

Defendant's Memorandum of Law]. Moreover, according to King, the

statutory terms "maliciously" and "willfully" are functionally

eguivalent. Id. at 6. Thus, King asserts that a conviction for

both Counts I and III of the Indictment would punish him for the

same underlying conduct.

King next contends that even if "maliciously" and

"willfully" are not synonymous mental states, willful is a

3The Double Jeopardy Clause provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb . . . ." U.S. Const, art. V.

3 "'lesser included' state of mind." See Supplemental Reply by the

Defendant to the Government's Response to the Defendant's Motion

to Dismiss on Grounds of Double Jeopardy (document no. 31) at 1.

To be sentenced under both counts. King argues, would violate the

Double Jeopardy Clause by punishing him twice for the same

conduct. The Government disagrees.

II. Standard

The Double Jeopardy Clause has been interpreted to provide

three separate safeguards for persons accused of a crime:

First, it protects against a second prosecution for the same offense after acguittal. Second, it protects against a second prosecution for the same offense after conviction. Third, it protects against multiple punishments for the same offense.

United States v. Abreu, 952 F.2d 1458, 1464 (1st Cir.), cert.

denied,112 S. C t . 1695 (1992) (citing Jones v. Thomas, 491 U.S.

376, 380-81 (1988)). These three situations can be classified

into two broader categories: cases in which a person receives

multiple punishments for the same offense and cases in which the

Government brings successive prosecutions. See United States v.

Rivera-Feliciano, 930 F.2d 951, 953 (1st Cir. 1991), cert.

denied, 112 S. C t . 1676 (1992).

4 The method for determining whether a Double Jeopardy Clause

violation is present differs for each category. See Gradv v.

Corbin, 495 U.S. 508, 515-22 (1990); Rivera-Feliciano, 930 F.2d

at 953-54; United States v. Ortiz-Alarcon, 917 F.2d 651, 653-54

(1st Cir. 1990), cert, denied. 111 S. C t . 2035 (1991). With

respect to situations involving multiple punishments within a

single prosecution, the "analysis begins, and ends," Rivera-

Feliciano, 930 F.2d at 953, with the standard set forth in

Blockburqer v. United States, 284 U.S. 299, 304 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision reguires proof of a fact which the other does not.

Accord Abreu, 952 F.2d at 1464; Ortiz-Alarcon, 917 F.2d at 653.

If they do, then the Blockburqer test is satisfied, and the

Double Jeopardy Clause will not preclude the imposition of

multiple sentences for overlapping conduct. See Abreu, 952 F.2d

at 1464-65; Rivera-Feliciano, 930 F.2d at 953. If, however,

neither provision reguires proof of a fact that the other does

not, then

the offenses are one and the same for purposes of the double jeopardy doctrine; similarly, if only one of the statutes does, then the other offense is a lesser included

5 violation, and the Double Jeopardy Clause comes squarely into play.

Rivera-Feliciano, 930 F.2d at 953 (citing Gradv, 110 S. C t .

2090).

III. Application

To establish a violation of 18 U.S.C. § 844(f), the

Government must prove the following essential elements:

(1) the defendant damaged real or personal property by means of fire or explosives;

(2) the real or personal property was owned in whole or in part by the United States; and

(3) the defendant acted maliciously.

To prove a violation of 18 U.S.C. § 1855, the Government must

establish the following:

(1) the defendant set fire to any timber, underbrush or grass or other inflammable material;

(2) the property was owned in whole or in part by the United States; and

(3) the defendant acted willfully and without authority.

King dismisses any differences in the language in first

element of each statute by asserting that the burning of timber,

underbrush, grass, or other inflammable material in the present

case is the "functional equivalent" of damaging real property by

means of fire. See Defendant's Memorandum of Law at 4. While

the Government does not concede this issue, it has chosen not to

6 argue the point and agrees that the "larger guestion" involves

the reguisite mental states necessary to commit each offense.

See Government's Response to Defendant's Motion to Dismiss on

Grounds of Double Jeopardy at 3-4. The court agrees with King

that in this case "fire, timber, underbrush or grass" as cited in

18 U.S.C. § 1855 is included in "real or personal property" as

used in 18 U.S.C. § 844(f). Thus, the Blockburqer test cannot be

satisfied through these facts.

In construing the terms "maliciously" and "willfully," the

court is guided by the following principles of statutory

interpretation which are discussed in greater detail in McFadden

v. United States, 814 F.2d 144, 145-46 (3d Cir. 1987). When

Congress uses a common law term in a statute without otherwise

defining it, a court may presume that Congress intended to adopt

the meaning given to that term at common law. See United States

v. Patterson, 882 F.2d 595, 603 (1st Cir. 1989), cert, denied,

110 S. C t . 737 (1990) (citing Morissette v. United States, 342

U.S. 246, 263 (1952)); United States v. Everett, 700 F.2d 900,

904 (3d Cir. 1983). If Congress uses a term that has no accepted

common law meaning, the term should be given a meaning consistent

with the purpose of the statute and its legislative history.

United States v. Turley, 352 U.S. 407, 411-13 (1957). However,

7 even if the term has an accepted common law meaning, a court

should not adopt that meaning if there are "grounds for inferring

any affirmative instruction from Congress" to do otherwise. See

Morissette, 342 U.S. at 273 (quoted with approval in Everett, 700

F .2d at 904).

"At common law, one acts 'maliciously' if he acts

intentionally or with willful disregard of the likelihood that

damage or injury will result." McFadden, 814 F.2d at 146 (citing

C. Torcia, Wharton's Criminal Law §§ 137, 486 (14th ed. 1979); R.

Perkins & R. Boyce, Criminal Law 856-61 (3rd ed. 1982)). Thus,

in this context, a defendant maliciously damages real or personal

property by fire or explosives if he intentionally damages the

property by the means specified in the indictment and with

knowledge that the property is property of the United States.

The meaning which Congress intended to give to "willfully"

in 18 U.S.C. § 1855 is more difficult to ascertain. Although it

has not ruled on this specific issue, the First Circuit Court of

Appeals has noted that willful "is a word of many meanings, its

construction often being influenced by its context." United

States v. Aversa, 984 F.2d 493, 497 (1st Cir. 1993) (guoting

Spies v. United States, 317 U.S. 492, 497 (1943)). At one

extreme, willfulness has been eguated with mere awareness of the conduct at issue and the surrounding circumstances. Id. At the

other extreme, it has been understood to require the violation of

a known legal duty. Id.

The Government argues that 18 U.S.C. § 1855 requires proof

that the defendant intentionally violated a known legal duty.

Assuming without deciding that the Government's position is

correct, "willfully" as used in 18 U.S.C. § 1855 necessarily

includes "maliciously" as used in 18 U.S.C. § 844(f) since it is

logically impossible for a defendant to act willfully by

intentionally setting fire to property of the United States in

violation of a known legal duty without also acting maliciously

by intending to damage the property by means of fire.

Accordingly, at least in the context of this case, 18 U.S.C. §

844(f) and 18 U.S.C. § 1855 do not each require proof of a fact

which the other does not and the Blockburqer test has not been

satisfied.

In cases where it would violate the Double Jeopardy Clause

to sentence the defendant to multiple sentences for the same

conduct, the First Circuit Court of Appeals has determined that

it would also be improper to sentence on only one offense, but

allow both convictions to stand. United States v. Rivera-

Martinez, 931 F.2d 148, 152-53 (1st Cir.), cert, denied, 112 S. C t . 184 (1991). Accordingly, the defendant's conviction on Count

III is vacated.4

SO ORDERED.

Paul Barbadoro United States District Judge

April 16, 1993

cc: David Bownes, Esg. United States Attorney United States Probation United States Marshal

4Although the offense identified in Count I is necessarily included in the offense identified in Count III, the court vacates Count III because it provides for a lower maximum term of imprisonment than the offense identified in Count I.