US v. Davis, Crim. A. No. 94-370-A.

• Decision Date: 10 January 1995
• Docket Number: Crim. A. No. 94-370-A.
• Citation: 872 F. Supp. 1475
• Parties: UNITED STATES of America v. Cecil McDonald DAVIS, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

872 F. Supp. 1475

UNITED STATES of America v. Cecil McDonald DAVIS, Defendant.

Crim. A. No. 94-370-A.

United States District Court, E.D. Virginia, Alexandria Division.

January 10, 1995.

Helen Fahey, U.S. Atty., Michael Rich, William Palmer, Asst. U.S. Attys., Alexandria, VA, for plaintiff.

Donald Criswell, Arlington, VA, for defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

Under 18 U.S.C. § 844(f), it is a federal crime to commit arson in respect of a property "owned, possessed, or used by, or leased to ... any institution or organization receiving Federal financial assistance." A federal jury convicted defendant Cecil Davis of four charges based on this crime as a result of his participation in an arson committed at a townhouse leased to a person receiving Section 8 assistance.¹ Davis's convictions are valid only if the townhouse was "owned, possessed, or used by, or leased to" an agency receiving federal funding. In this instance, the agency receiving federal funding was the Virginia Housing Development Authority (VHDA), and the question presented is whether VHDA "used"² the townhouse by making monthly housing assistance payments to the townhouse's owner on the lessee's behalf. Because the statute's language and purpose compel the conclusion that VHDA "used" the townhouse within the meaning of § 844(f), Davis's convictions are valid and his motion for judgment of acquittal on each charge must be denied.

I.³

The government alleges that Davis was a member of the "133 Crew," a small group distributing drugs in Leesburg, Virginia. The 133 Crew's illegal activities occurred chiefly at the home of Tiffini Fairfax at 133 Fort Evans Road in Leesburg. On December 5, 1993, Fairfax sold drugs to Brenda Williams at this location. The next day, the Leesburg Police Department raided Fairfax's home. Although the police found no drugs and made no arrests, their search resulted in Fairfax's three children being taken into custody by child welfare authorities on the ground of apparent neglect. Davis was not present at the time of the raid.

Fairfax soon came to believe that Williams was cooperating with the police, and that this cooperation had led to the raid of her home and the loss of her children. In retaliation, Davis, Fairfax, and others agreed on a plan to set fire to Williams' townhouse. Davis convinced Walter Langston, another individual who frequented the Fort Evans Road house, to set the fire in return for crack cocaine. Davis purchased a gasoline can, and gave Langston money to purchase gloves and a hat for purposes of disguise. On December 11, 1993, Langston went to Williams' townhouse and poured gasoline on her back porch, but was interrupted by a neighbor before he could set the fire and thus abandoned his efforts. Despite the failure of this attempt, Fairfax gave Langston a $50 rock of crack cocaine for his efforts.

The next day, December 12, Davis and his co-conspirators agreed that Langston would try again, this time using a "Molotov cocktail."⁴ Langston, with money from Davis, purchased gasoline, and used it to manufacture the explosive device from a malt liquor bottle and strip of bed sheet. Early in the morning of December 13, Langston again went to Williams' townhouse, lit the "cocktail" and threw it at the townhouse. It landed and exploded on Williams' back porch, setting fire to a piece of carpet on the porch, scorching the exterior wall, and shattering a sliding glass door. The three individuals in the townhouse at the time, including Williams, were not injured, and the fire was promptly extinguished.

A federal grand jury indicted Davis on four counts arising from the arson. Jurisdiction for each count is premised on 18 U.S.C. § 844(f), which makes it a federal criminal offense to commit arson on property "owned, possessed, or used by, or leased to" an institution or organization receiving federal financial assistance.⁵ Specifically, the indictment charged Davis with (i) conspiring with Fairfax, Langston, and others to commit the § 844(f) arson, in violation of 18 U.S.C. § 371, (ii) attempting the arson on December 11, in violation of § 844(f), (iii) committing the arson on December 13, in violation of § 844(f), and (iv) using a firearm or destructive device in committing a violent crime subject to prosecution in federal court, namely the § 844(f) arson, in violation of 18 U.S.C. § 924(c)(1). All four charges are premised on the applicability of § 844(f). If § 844(f) is inapplicable, the charges fail jurisdictionally.

The government contends § 844(f) applies because Brenda Williams received Section 8 housing assistance. Under Section 8 of the United States Housing Act of 1937, the United States Department of Housing and Urban Development (HUD) distributes funds to local public housing agencies, including VHDA, for use in connection with low-income housing assistance. See 42 U.S.C. § 1437f. Eligible families select housing and VHDA, after approving the unit and the lease, promises to make monthly housing assistance payments to the landlord on the family's behalf. Id.

Pursuant to this program, Williams leased the townhouse where the arson occurred from Page-Brooke Land Trust ("Page-Brooke"). Four documents were executed on September 1, 1992, the date Williams began her tenancy. First, Williams and Page-Brooke's agent signed a lease providing for monthly rent payments of $625. No one from HUD or VHDA signed the lease, and the document does not mention the Section 8 program. In the lease, Williams agreed to use the townhouse for residential purposes only. Second, Williams and Page-Brooke's agent signed a "Certificate Addendum" to the lease, which is a HUD form describing the terms of Williams' housing assistance and restricting the landlord's ability to terminate the lease. Third, Williams and a VHDA official executed a "Certificate of Family Participation," another HUD form, indicating that VHDA had determined Williams was eligible for Section 8 assistance. This form does not specifically identify the property rented. In it, Williams agreed to permit VHDA to inspect the townhouse "at reasonable times and after reasonable notice." And fourth, VHDA and Page-Brooke entered into a "Housing Assistance Payments Contract," also a HUD form, in which VHDA promised to make monthly housing assistance payments of $594 to Page-Brooke on Williams' behalf. This left a tenant rent of $31 per month to be paid by Williams. The contract required Page-Brooke to ensure that Williams used the unit solely as her family's principal residence. Under the contract, VHDA maintained the right to inspect the townhouse annually or as necessary to confirm that the townhouse remained in a safe and sanitary condition and that the landlord complied with the lease's terms. The contract further provided that if Williams vacated the townhouse in violation of the lease, VHDA would become liable, under certain conditions, for 80% of the rent for up to two months.

Davis's trial commenced on November 21, 1994. At the conclusion of the government's case, Davis moved for a judgment of acquittal on all four counts pursuant to Rule 29(a), Fed.R.Crim.P. In support of his motion, Davis argued that the evidence presented disclosed an absence of subject matter jurisdiction under 18 U.S.C. § 844(f) because no organization or institution receiving federal financial assistance owned, possessed, used, or leased Brenda Williams' townhouse. In response, the government argued that VHDA used the property within the meaning of § 844(f). The Court denied the motion, allowing defendant leave to renew in the event the jury's verdict was adverse to him. Following the presentation of defendant's case and the Court's instructions, the jury deliberated and returned guilty verdicts on all four counts. Defendant thereafter renewed his Rule 29 motion. The matter, having been fully brief, is now ripe for disposition.

II.

Statutory interpretation properly begins with the statute's language. United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981). Section 844(f) applies to fires and bombings that damage property "owned, possessed, or used by, or leased to" the United States or federally-funded organizations or institutions. The sole question presented here is the meaning of the word "used," and specifically whether VHDA "used" Williams' townhouse within the meaning of the statute.⁶ It is a settled axiom of statutory construction that nontechnical, undefined words in a statute are normally given their plain or ordinary meaning. See Chapman v. United States, 500 U.S. 453, 462, 111 S.Ct. 1919, 1926, 114 L.Ed.2d 524 (1991). The term "used," in this statute, is both nontechnical and undefined. Thus, the task here is to give "used" its plain or ordinary meaning.

Dictionaries are often used by courts as aids to divining plain and ordinary meaning.⁷ A recent, notable example of this is Smith v. United States, ___ U.S. ___, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993). There, the Supreme Court construed the verb "use" in the context of 18 U.S.C. § 924(c)(1), which provides for enhanced punishment when a defendant "uses or carries" a firearm in committing a violent or drug-related federal crime.⁸ In that case, the defendant was convicted under § 924(c)(1) for attempting to trade a MAC-10 automatic firearm for cocaine. The Supreme Court upheld the conviction, ruling that the trade was a "use" of the MAC-10. In reaching this conclusion, Justice O'Connor, speaking for a majority of the Court,⁹ consulted various dictionaries and found that "to use" is variously defined as "to employ," "to utilize," "to convert to one's service," "to make use of," "to avail oneself of," or "to carry out a purpose or action by means of." Id. at ___, 113 S.Ct. at 2054.¹⁰ Given these dictionary definitions, it followed that because Smith employed and derived service from the MAC-10 when he attempted to trade it for narcotics, he "used" the gun within the...