Academic journal article Washington Law Review

Defusing the Bomb: The Scope of the Federal Explosives Statute

Academic journal article Washington Law Review

Defusing the Bomb: The Scope of the Federal Explosives Statute

Article excerpt

Abstract: A federal statute, 18 U.S.C. § 844(hX2) (2000), imposes a mandatory ten-year term of imprisonment on anyone who "carries an explosive during the commission of any felony which may be prosecuted in a court of the United States." The United States Courts of Appeals are split over whether the statute must be read to include a relational element such that the crime is carrying explosives in relation to another felony. The Third, Fifth, and Sixth Circuits have rejected the notion that the statute contains such an implicit limitation. In contrast, the Ninth Circuit recently held that the application of § 844(h)(2) requires a specific relationship between the explosives and the underlying felony and reversed a conviction where explosives did not "facilitate" the felony. This Comment argues that application of the statute should not be limited to cases in which the explosives facilitate the underlying felony for four reasons: (1) the United States Supreme Court has adopted a broad reading of the terms "carry" and "use" in 18 U.S.C. § 924(c) (2000)-the analogous firearm statutesuggesting that these terms in § 844(h) should also be read expansively; (2) Congress amended § 924(c) to include an explicit relational element but did not amend § 844(hX2) in the same fashion, suggesting an intentional omission; (3) the Supreme Court's interpretation of the explicit relational element in § 924(c) is inapplicable to § 844(hX2) because unlike firearms, explosives are not often carried to facilitate crimes; and (4) the courts may exercise their equitable powers to preclude prosecution under § 844(hX2) when doing so would produce absurd results.

INTRODUCTION

On December 14,1999, al-Qaeda operative Ahmed Ressam smuggled explosives into the United States in an attempt to bomb Los Angeles International Airport.1 United States Customs agents apprehended him in Port Angeles, Washington, and Ressam was subsequently convicted on several counts, including a violation of 18 U.S.C. § 844(h)(2) (2000).2 section 844(h)(2) imposes a mandatory ten-year prison term on one who "carries an explosive during the commission of any felony which may be prosecuted in a court of the United States."3 On January 16, 2007, the United States Court of Appeals for the Ninth Circuit reversed Ressam's conviction under § 844(h)(2) on the ground that his possession of the explosives was not related to the underlying felony of making a false customs declaration.4 The statute does not explicitly require a relational element,5 and courts in other circuits have refused to infer this requirement from the text.6 Had Ressam been convicted in Detroit or Philadelphia, for example, his conviction would most likely have been affirmed.7

Congress modeled § 844(h) after 18 U.S.C. § 924(c)(1970), a statute that imposed similar penalties for firearm use and possession during the commission of a felony.8 The original versions of the two statutes were virtually identical.9 Congress amended § 924(c) in 1984 to require explicitly that a firearm be used or carried during "and in relation to" an underlying felony.10 However, Congress did not similarly amend § 844(h)(2), and the courts are now split over whether the "in relation to" language is implicit in that statute."

Interpretations of the pre-1984 version of § 924(c) have guided the courts' interpretations of § 844(h)(2). In United States v. Stewart,12 the Ninth Circuit held that the pre-1984 version of § 924(c) contained an implicit relational element, and that the explicit addition of the relational element in 1984 was simply a reiteration of original intent.13 The Ninth Circuit in United States v. Ressam14 noted the similarities between § 844(h)(2) and the pre-1984 version of § 924(c), and concluded that it was bound by Stewart to find an implicit relational element in § 844(h)(2) as well.15 In reaching its conclusion, the Ressam court employed the doctrine of in pari materia, a canon of statutory construction providing that similar statutes should be interpreted similarly. …

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