Once inside, Odom and Boone used a bottle to punch several holes in the church walls. They then used a lighter to try to set fires in several places.On July 31, 1997, a federal grand jury issued a ten-count indictment charging the defendants with conspiracy, in violation of 18 U.S.C. 371; damage to religious property because of the religious character of that property, in violation of 18 U.S.C. 247(a)(1); damage to religious property because of the race of any individual associated with that property, in violation of 18 U.S.C. 247(c); use of fire or an explosive to commit a federal felony, in violation of 18 U.S.C. 844(h)(1); arson, in violation of 18 U.S.C. 844(i); and aiding and abetting an offense against the United States, in violation of 18 U.S.C. 2. The first five counts related to the burning of the St. Joseph's Baptist Church, and the other five involved the arson of the Tate Chapel A.M.E.In connection with the arson of St. Joseph Baptist Church, Woods pled guilty to violating 18 U.S.C. 844(i) and 18 U.S.C. 247, and was sentenced to 60 months in prison.

Title 18, U.S.C. §844(h)(i) outlaws the use of fire in committing a felony. Convictions under 18 U.S.C. §844(h)(i) and §844(i) violate the double jeopardy clause where the §844(i) offense involves the same fire that triggers the §844(h)(i) conviction, and the felony set forth in the §844(h)(i) count is arson.United States v. Bernhardt, 831 F.2d 181 (9th Cir. 1987)Successive state and federal prosecutions are generally permissible.

Section 1101(a)(43) INA defines “aggravated felony” through a list of approximately 80 different crimes, and often provides that an offense is an aggravated felony if it is “described in” one of the enumerated crimes. One of those enumerated crimes is 18 U.S.C. § 844(i), which makes it a crime to “maliciously damage[] or destroy[], or attempt[] to damage or destroy, by means of fire or an explosive, any building [or] vehicle…used in interstate or foreign commerce….” The penultimate sentence of § 1101(a)(43) provides that an offense listed in the section is an aggravated felony whether it violates federal, state, or foreign law.

Over time, his vandalisms grew more involved and extensive, until they culminated in late June with the arson of the Roswell church to which Shirlene Jensen and her family belonged.On October 22, 1998, a federal grand jury returned a 10-count indictment against Grassie, charging him with numerous violations of 18 U.S.C. 247(a)(1) for damaging religious property because of the religious character of that property. Grassie was also charged with a violation of 18 U.S.C. 844(i) for burning a building used in interstate commerce; with a violation of 18 U.S.C. 844(h) for using fire in the commission of a felony; and with a second violation of 18 U.S.C. 844(i) for burning a truck that was used in interstate commerce. The final charge related to a fire Grassie had set ten days prior to the church arson, when Grassie torched a truck belonging to an adult son of the Jensons.

The specific section that has led to Torres’s predicament is INA § 101(a)(43)(E)(i) which provides, in relevant part, that the phrase “aggravated felony” means “an offense described in section 842(h) or (i) of title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses).” Relying on an earlier BIA decision (which I blogged about here), DHS convinced an immigration judge that a conviction under New York’s arson offense, N.Y. Penal Code § 110.00 and 150.10, is described in 18 U.S.C. § 844(i), a federal statute criminalizing arson. The BIA affirmed.

Count One, like most federal indictments, is a conspiracy count, this time RICO conspiracy under 18 U.S.C. § 1962(d). Five of the remaining counts are substantive counts: three involving arson (18 U.S.C. § 844(i)) and two involving the use of fire to commit a felony. The remaining count is conspiracy to commit arson under 18 U.S.C. § 844(n).The theoretical mandatory minimum of 35 years comes from the substantive counts, subsections (h) and (i).Subsection (i)—Arson—states, among other things, that maliciously damaging or destroying any building by fire carries with it a minimum period of imprisonment for at least 5 years, with a 20 year cap. (If there is personal injury or death, the punishment is enhanced).

It is not enough to prove under §513(a) that the victim organizations affected interstate commerce.United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995)An essential element of a federal arson prosecution under 18 U.S.C. §844(i) is that the property was used in, or used in any activity affecting, interstate or foreign commerce. In this case, the defendant committed arson on a home which used natural gas which was shipped in interstate commerce.

The en banc court upheld the conviction on the theory that the defendant was traveling from state-to-state and burning churches wherever he went, thus satisfying the interstate commerce requirement. United States v. Spruill, 118 F.3d 221 (4th Cir. 1997) Though the statute is worded awkwardly, 18 U.S.C. § 844(e) outlaws making threatening mailings or phone calls, which threaten physical injury by means of fire or explosives. The government argued, unsuccessfully, that the statute outlawed any threatening communication, one example being through the use of fire or explosive.

Matter of Bautista, 25 I&N Dec. at 617.Applying the categorical approach to statutory construction, the BIA determined that all but one element of the state offense match those contained in one of the crimes enumerated in the arson or explosives category of aggravated felony, INA § 101(a)(43)(E)(i). Specifically,all but one of the elements necessary for a conviction for the New York offense match those necessary for conviction under 18 U.S.C. § 844(i), a federal statute penalizing arson. Matter of Bautista, 25 I&N Dec. at 618.

While on board, Hausa attacked law enforcement officers and was arrested by Italian authorities. He was thereafter extradited to the United States to stand trial on five counts related to his attacks on U.S. soldiers: (1) conspiracy to murder U.S. nationals, in violation of 18 U.S.C. §2332(b)(2); (2) conspiracy to bomb a government facility, in violation of 18 U.S.C. §2332f; (3) conspiracy to provide material support to Al Qaeda, in violation of 18 U.S.C. §2339B; (4) provision and attempted provision of material support to Al Qaeda, in violation of 18 U.S.C. §2339B; and (5) illegal use of an explosive to commit a federal felony offense, in violation of 18 U.S.C. §844(h). During pretrial proceedings in the Eastern District of New York, Hausa expressed a desire to represent himself and in a series of conferences the district court sought to assess his competence to stand trial and his purported waiver of his right to counsel.