subsection (h) with the predicate of § 1361 would cover every circumstance that subsection (f) covers.
A review of recent cases involving convictions under § 844(f) and (h)(1) illustrates this difference between the two subsections. The court acknowledges that the government is under no obligation to follow other jurisdictions to determine the best statute for indictment in a particular case, but nevertheless finds other examples of the statute's usage edifying.
In every case in which (h)(1) is charged, fire was the means for destroying property in order to commit a felony other than the destruction of property. See, e.g., U.S. v. Karlic, 997 F.2d 564 (9th Cir. 1993) (use of explosive to commit larceny); U.S. v. Fiore, 821 F.2d 127 (2d Cir. 1987), and U.S. v. Flowers, 995 F.2d 315 (1st Cir. 1993) (use of fire to commit mail fraud); U.S. v. Montgomery, 1993 U.S. App. LEXIS 17428, 1993 WL 264458 (4th Cir. 1993), and U.S. v. Gresser, 935 F.2d 96 (6th Cir. 1991) (use of fire to violate civil rights). Subsection (f), on the other hand, is used for destruction of government property by explosives or fire, i.e., for political purposes. See, e.g. U.S. v. Eichman, 957 F.2d 45 (2d Cir. 1992); Laaman v. U.S., 973 F.2d 107 (2d Cir. 1992).
Counts II and III of the indictment in this case follow these precedents. They charge the defendants with a violation of § 844(h)(1) with a predicate felony of § 1341 for burning a private car and using the federal mails to fraudulently claim insurance proceeds. However, Counts IV and V charge that defendants used fire to destroy a government-owned car. Section 844(f) provides specifically for this crime on its face. Congressional intent expressed in the legislative history that the subsection be used to cover § 1361-type crimes involving the use of fire or explosives precludes indictment for this offense under § 844(h)(1) with a predicate § 1361 felony. Therefore, Count V shall be dismissed, and the language in Count I applicable to the § 844(h)(1) charge for the government car shall be stricken.
II. Challenges to the § 1361 Conviction
A. Preemption by § 844
Defendants further ask the court to find that § 844(f) preempts the use of § 1361 when fire or explosives are the means of destruction, and to strike Count IV of their indictment as well. They cite the same legislative history discussed above to argue that Congress intended that § 844(f) be used exclusively when federal property is damaged by fire.
The explanation in the Congressional report for the passage of § 844(f), as quoted above, does suggest that subsection (f) is offered as more specific legislation designed to punish damage to government property when fire or explosives are involved. 1970 U.S.C.C.A.N. at 4045. However, there is no language in either the statute itself or the legislative history which precludes the use of § 1361. The general rule is that overlapping statutes "should be construed to coexist . . . provided there is no contrary legislative intent and no repugnancy between the provisions." United States v. Bradley, 812 F.2d 774, 779 (2d Cir.), cert. denied, 484 U.S. 832, 98 L. Ed. 2d 67, 108 S. Ct. 107 (1987), citing United States v. Batchelder, 442 U.S. 114, 122, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979). "The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Traynor v. Turnage, 485 U.S. 535, 548, 99 L. Ed. 2d 618, 108 S. Ct. 1372 (1988). In the face of such strong sentiment against repealing a statute by implication, this court declines to find § 1361 preempted for the purposes of this conviction.
B. Knowledge Requirement
Defendants next urge that Count IV be stricken because the prosecutor did not prove that they knew the car was government property when it was burned and this knowledge is a requisite element under § 1361. They cite U.S. v. Bangert, in which the Eighth Circuit held that to prove defendants violated this statute, the government must show that "the [property] that was burned was owned by the government; that there was actual damage done to the [property]; and that the defendants burned the [property] with knowledge that they were violating the law." 645 F.2d 1297, 1305 (8th Cir.), cert. denied, 454 U.S. 860 (1981). The Bangert court upheld the conviction because it found that the first two prongs of the test were satisfied and "there was substantial evidence from which the jury could infer that the defendants knew the flag they burned was a flag owned by the United States government." Id. Defendants here claim that since they did not know the "sting" car was government property, they did not have knowledge that they were violating § 1361.
The government concedes that it could not prove either defendant knew the "sting" car belonged to the federal government However, it argues that the element of willfulness which must be proven in this specific intent crime (see U.S. v. Jones, 607 F.2d 269 (1979)) goes to the intent to damage or destroy the car using fire, not to knowledge that the vehicle was government property. The government cites U.S. v. Briddle in support of its theory. "To convict the defendants, the jury needed to find (a) damage in excess of $ 100, and (b) willful commitment of such damage." 443 F.2d 443, 447-48 (8th Cir. 1971). The Bangert court refers to the Briddle decision with approval. 645 F.2d at 1305.
In most § 1361 cases, the issue of whether or not the defendants knew the property they damaged belonged to the federal government does not arise because property ownership is obvious. See, e.g., McFadden v. U.S., 814 F.2d 144 (3rd Cir. 1987) (post office bombing); Eichman, 957 F.2d 45 (flag-burning at a military recruitment center). Defendants' argument that they did not have the requisite knowledge that the car they burned belonged to the government is one of first impression. Unlike other cases, the "sting" car here had no markings to identify it as government property, and it is uncontested that the defendants believed it belonged to the informant's brother-in-law.
A comparison of the scienter requirements of similar statutory crimes lends support to the government's view of what constitutes necessary knowledge. When a federal agent is assaulted, the government need not prove that the defendant knew his or her victim worked for the government to be charged under 18 U.S.C. § 111 ( U.S. v. Feola, 420 U.S. 671, 684, 43 L. Ed. 2d 541, 95 S. Ct. 1255 (1975); U.S. v. Padilla, 961 F.2d 322 (2d Cir. 1992)) or § 1111 ( U.S. v. Alvarez, 755 F.2d 830 (11th Cir.), cert. denied, 474 U.S. 905 (1985). Similarly, a defendant may be convicted of theft of government property under 18 U.S.C. § 641 without proof that the defendant knew the property belonged to the government. U.S. v. Jermendy, 544 F.2d 640 (2d Cir.), cert. denied, 430 U.S. 909, 51 L. Ed. 2d 585, 97 S. Ct. 1181 (1976). "Due process requirements of scienter are not automatically violated because a certain element of the crime is not known to the defendant. . . . Having chosen to engage in wrongful conduct, the defendant may not complain that facts outside his knowledge brought into play federal penalties or enhanced punishment." U.S. v. Bolin, 423 F.2d 834, 837 (9th Cir. 1970).
However, this liability is not absolute. In U.S. v. Young, 464 F.2d 160 (5th Cir. 1972), an African-American defendant driving in Jackson, Mississippi, was forced to pull to the side of the road by two FBI agents in an unmarked car. The agents claimed they flashed their badges at the defendant while pulling alongside his car, then stopped diagonally in front of him to prevent him from fleeing. The defendant rammed his car into the right front door of the agents' car as one of the agents was opening the door. The defendant was convicted under § 111 for assaulting a federal agent and § 1361 for willfully damaging federal property.
Young claimed that he did not know the two white men who had forced him to the side of the road were FBI agents. He rammed their car because he feared for his safety and wanted to get away. He appealed his conviction, claiming that he should have been permitted to present this defense to the jury. The Circuit Court agreed. Discussing the scienter requirement for § 111, it held that:
When there is no doubt of the defendant's unlawful intention, knowledge of the official capacity of the victim is invariably unnecessary; the assailant takes his victim as he finds him. But if the defendant asserts a lack of intention or wilfulness based upon ignorance of the identity of the victim and ignorance of the victim's official privilege to interfere with the defendant's person or freedom of movement, the jury must be allowed to consider the defendant's evidence tending to show that he was ignorant of the official capacity of the victim. For only then can the jury give fair consideration to whether the assault was an intentional act wilfully done without legal excuse.