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September 17, 1993



The opinion of the court was delivered by: JOHN T. CURTIN

CURTIN, District Judge


  On June 29, 1993, defendants Michael LaPorta and Vincent "Jimmy" Sicurella were convicted of conspiracy (Count I), mail fraud (Count II) through use of fire (Count III), and willful destruction of government property (Count IV) through use of fire (Count V). Pursuant to Rules 33, 34, and 29c of the Federal Rules of Criminal Procedure, defendants now move for a judgment of acquittal, new trial, and bail under 18 U.S.C. § 3143(a)(2).

 The defendants were charged with procuring and burning cars in a conspiracy to fraudulently collect insurance proceeds. At trial, the government first presented evidence that the defendants conspired to burn a car belonging to Jimmy Sicurella. The FBI learned of the insurance fraud scheme and mounted a "sting" operation using a government informant, whereby a second car was also burned. The second car belonged to the United States government, but the defendants were told it was owned by the informant's brother-in-law. A jury found both LaPorta and Sicurella guilty on all five counts of the indictment.

 Defendants now ask the court to reconsider motions heard and denied prior to trial. They first urge the court to dismiss their convictions under Counts I, IV, and V of the Second Superseding Indictment (Item 30), claiming that the government: 1) incorrectly indicted them under 18 U.S.C. § 844(h)(1); 2) consented to the burning of federal property; and 3) failed to prove that the defendants knew the car was owned by the government, a requisite element of this specific intent charge. They assert that if the court finds these counts should be dismissed, it should also find that there was an unnecessary spillover to Counts II and III. Additionally, with respect to Counts II and III, defendants claim that 18 U.S.C. § 1341 was not an appropriate statute to use as a predicate for a violation of § 844(h)(1) under the circumstances of this case. Therefore, they seek dismissal of the entire indictment against them or, in the alternative, a new trial. They also ask the court to make a finding that there is a substantial likelihood that their motion for a new trial or acquittal would be granted in order to reimpose bail pending sentencing.


 I. Indictment under § 844(h)(1)

 Count IV of the Second Superseding Indictment (Item 30) charges the defendants with intentionally setting fire to a vehicle owned by the United States in violation of 18 U.S.C. §§ 1361 & 2. Section 1361 authorizes the Attorney General to prosecute, "whoever willfully injures or commits any depredation against any property of the United States . . ." (1984).

 Count V of the Indictment charges that the defendants, "willfully used fire to commit a felony . . . charged in Count Four of this indictment," in violation of the Organized Crime Act, 18 U.S.C. 844(h)(1). Item 30 at 12. Section 844(h)(1) authorizes punishment for "whoever uses fire or an explosive to commit any felony which may be prosecuted in a court of the United States" (1993).

 Defendants first argue that they were improperly indicted in Count V under § 844(h)(1), using 18 U.S.C. 1361 as a predicate felony, because Congress specifically enacted § 844(f) for the purpose of prohibiting destruction of government property by fire. Subsection (f) states:

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. . . .

 Defendants assert the well-established rule of construction that a specific statute must be given precedence over a general one. Busic v. U.S., 446 U.S. 398, 406, 64 L. Ed. 2d 381, 100 S. Ct. 1747 (1980). They argue that § 844(f) specifically refers to destruction of government property by fire, while § 844(h)(1) speaks only generally about the use of fire to commit another felony.

 Defendants also contend that § 1361 cannot be used as the predicate felony for § 844(h)(1) under these circumstances. Section 1361 prohibits willful damage to federal property, and § 844(h)(1) provides for an additional sentence when the damage is done by fire. Defendants claim that subsection (f) precludes the use of §§ 1361 and 844(h)(1) because § 844f was enacted precisely for this situation.

 In support of their argument, defendants point to the statutory language on its face as well the legislative history of 844(f) as reported by the House Judiciary Committee. H.R. Rep. No. 1549, 91st Cong., 2d Sess. 2 (1970), reprinted in 1970 U.S.C.C.A.N. 4007. The report explains that Title XI of the Organized Crime Control Act, PL. 91-452 (1970) was enacted to reduce "the hazards to persons and property associated with the misuse of explosives . . . ." *fn1" Id. at 4040-41. Section 844 of the Act "sets the penalties for violation of the regulatory provisions . . . and creates certain offenses pertaining to the unlawful use of explosives." Id. at 4045. Subsection (f) was included because: "Willful destruction of Government property by any means is now prohibited by 18 U.S.C. 1361 . . . . However, because use of explosives is so inherently dangerous to life, it is desirable to have specific legislation dealing with destruction by explosives. . . ." Id. at 4046. Defendants claim that this explanation given in the legislative report, combined with the specific language of the subsection, clearly indicates Congress's intent to have § 844(f) preempt any other prosecution when the only crime committed is the destruction of government property. Item 71 at 1. In other words, § 844(f) must be read to preempt § 1361 under the facts of this case, so that the latter section cannot be used as an underlying felony for a § 844(h)(1) in order to charge destruction of government property by fire. Id. at 3.

 As further support, defendants provide a long list of cases in which defendants were charged and convicted under subsection (f) for burning or bombing government property. They assert, and it appears, that there are no reported cases in which § 844(h)(1) with a ...

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