US v. Petrykievicz

• Decision Date: 14 December 1992
• Docket Number: No. CR92-290Z.,CR92-290Z.
• Citation: 809 F. Supp. 794
• Parties: UNITED STATES of America, Plaintiff, v. Oliver Stefan PETRYKIEVICZ, Defendant.
• Court: U.S. District Court — Western District of Washington

809 F. Supp. 794

UNITED STATES of America, Plaintiff, v. Oliver Stefan PETRYKIEVICZ, Defendant.

No. CR92-290Z.

United States District Court, W.D. Washington, at Seattle.

December 14, 1992.

Susan B. Dohrmann, Asst. U.S. Atty., Seattle, WA, for plaintiff.

Robert Steven Mahler, Federal Public Defender, Seattle, WA, for defendant.

ORDER

ZILLY, District Judge.

I. INTRODUCTION

THIS MATTER comes before the Court on the defendant's motion for judgment of acquittal of Counts I and II of the Superseding Indictment pursuant to Fed. R.Crim.P. 29. Count I charged that the defendant, not being a licensee or permittee under the provisions of Chapter 40 of Title 18, knowingly transported and shipped and caused to be transported and shipped in foreign commerce an explosive material (approximately one pound of PETN) in violation of 18 U.S.C. §§ 841(c) and (d), 842(a)(3)(A), and 844(a). Defendant was charged in Count II with importing this same explosive material into the United States contrary to law, in violation of 18 U.S.C. Section 545. The defendant was also charged in Count III with making a false statement to a customs inspector. At trial, the defendant moved to have the Indictment dismissed pursuant to Rule 29. The Court denied the motion as to Count III and deferred a ruling on the motion for judgment of acquittal on Counts I and II until the parties could fully brief the issues presented. After trial, the jury found the defendant guilty of Counts I and II and not guilty of Count III. On November 24, 1992, the Court heard oral argument on defendant's motion for judgment of acquittal. The Court then took the motion under advisement. For the reasons stated in this order, the Court GRANTS the defendant's motion and DISMISSES Counts I and II of the Superseding Indictment.

II. ANALYSIS

The defendant was arrested on May 26, 1992 at the Seattle-Tacoma International Airport, having arrived on United Airlines Flight # 933 from London, England. At the time of his arrest, the defendant had in his possession a safety fuse and approximately one (1) pound of explosive materials containing pentaerythritol tetranitrate, commonly referred to as PETN.

Title 18, United States Code, Chapter 40, contains statutes relating to the importation, manufacture, distribution, and storage of explosive materials. 18 U.S.C. §§ 841-848. Defendant was charged in Count I with a violation of 18 U.S.C. § 842(a)(3)(A) which provides in pertinent part that:

(a) It shall be unlawful for any person—

(3) other than a licensee or permittee knowingly—

(A) to transport, ship, cause to be transported, or receive in interstate or foreign commerce any explosive materials....

Administration of Chapter 40 is vested in the Secretary of the Treasury or his delegate. 18 U.S.C. § 841(k). The defendant was charged in Count II with importing and bringing a safety fuse and explosive materials into the United States "contrary to law" in violation of 18 U.S.C. § 545. The Government's Superseding Indictment relies upon §§ 18 U.S.C. § 841(c) and (d), 842(a)(3)(A), and 844(a) to satisfy the "contrary to law" portion of the charge in Count II. As a result, the defendant's arguments relating to the application of Section 845 will be critical as to both counts.

The defendant contends that he must be acquitted of the charges in Counts I and II because his conduct falls within the exception to Chapter 40 violations contained in 18 U.S.C. § 845(a)(1). Entitled "Exceptions; relief from disabilities," § 845(a)(1) provides as follows:

(a) Except in the case of subsections (d), (e), (f), (g), (h), and (i) of section 844 of this title, this chapter shall not apply to:

(1) any aspect of the transportation of explosive materials via railroad, water, highway, or air which are regulated by the United States Department of Transportation and agencies thereof;

It is undisputed that the Department of Transportation regulates some aspects of the transportation of explosive materials, including PETN and safety fuses. See, e.g., 49 U.S.C.App. § 1472(h)(2) (makes unlawful the willful delivery to an air carrier for transportation baggage which contains a hazardous material in violation of any rule or regulation promulgated by the Department of Transportation); 49 C.F.R. § 171.3(a) (prohibits the offer for transportation of hazardous materials unless properly described, packaged, marked, labeled, and in condition for shipment as required by regulations); 49 C.F.R. § 173.27(b) (prohibits the transportation by passenger-carrying aircraft of certain hazardous materials, including PETN, identified in the section 172.101 Table as "forbidden"); 49 C.F.R. § 173.27(c) (describes requirements for transportation of hazardous materials, including safety fuses, that are not forbidden from air transportation).

Although the Department of Transportation regulates many aspects of the transportation of explosive materials, it does not regulate licensing requirements relating to explosive materials. License applications and requirements to "import, manufacture, or deal in explosive materials" are governed by 18 U.S.C. § 841 et seq. and the regulations promulgated by the Secretary of the Treasury. United States v. Guess, 629 F.2d 573, 575 (9th Cir.1980); 18 U.S.C. § 843; 27 C.F.R. Part 55, Commerce in Explosives.

Defendant's motion to dismiss is based on the exception contained in 18 U.S.C. § 845. Defendant contends that because some aspects of the transportation of explosive materials are regulated by the Department of Transportation, that the exception applies to all aspects of the transportation of explosive materials. Brief of Defendant in Support of Motion for Judgment of Acquittal on Counts I and II, at 16. In effect, the defendant reads § 845(a)(1) as a preemption clause.

The defendant relies on United States v. Illingworth, 489 F.2d 264 (10th Cir.1973), the only Circuit Court opinion to analyze the statutory exception involved here. In Illingworth, the defendant took an airplane flight from Pocatello, Idaho to Salt Lake City, Utah and from Salt Lake City to Denver, Colorado while carrying a handbag containing dynamite. Like Petrykievicz, Illingworth was charged under 18 U.S.C. § 842(a)(3) with transporting explosive materials, via air, without a license. See Illingworth's Indictment, Exhibit B to Defendant's Brief, docket no. 86. The issue presented in Illingworth was whether the defendant could be prosecuted under § 842 in the face of the exception contained in § 845. The court stated that "the exception refers to materials which are regulated by the Department" of Transportation. (Emphasis by Court.) Id. at 265. Because explosives were regulated by the Department of Transportation, the Tenth Circuit concluded that Illingworth could not be prosecuted under Chapter 40 by reason of the "clearly provided exception to its application." Id. at 266. The Illingworth court, finding no ambiguity in the statutory exception contained in § 845, reasoned that

... it is clear that the dynamite which Illingworth carried with him on the planes was not only regulated, but also excluded from the range of "acceptable" explosives that, in certain circumstances, could be carried on board passenger-carrying aircraft, by 14 C.F.R. § 103.7 (1973).

Id. at 265.

The Illingworth court therefore dismissed the indictment against that the defendant based on the exception contained in § 845. The facts in Illingworth are almost identical to the facts in the present case. The decision by the Tenth Circuit is, however, not binding on this Court.

The Government argues the Illingworth court "failed to understand the essence of the charge" and in any event was wrongly decided. The Government argues, citing United States v. Scharstein, 531 F.Supp. 460, 466 (E.D.Ky.1982), that because licensing is not an aspect of transportation which is regulated by the Department of Transportation, the exception in § 845(a)(1) does not apply. In Scharstein, the defendant was convicted of illegally manufacturing, storing and transporting illegal explosives in violation of 18 U.S.C. § 841 et seq. Scharstein contended that because these activities were regulated by the Department of Transportation, they were not subject to criminal prosecution under 18 U.S.C. § 841 et seq. The Scharstein court found that "the key word in constructing the meaning of § 845 was the word `aspect.'" Id. at 466. The Scharstein court held that the aspect of licensing the transportation of explosive materials was covered by the Department of Treasury and the aspect of labeling, packaging, mode of transportation, placarding and shipping papers was regulated by the Department of Transportation regulations. The Scharstein court then concluded that the defendant had been charged with conduct involving the transportation of explosives without a license which was governed by 18 U.S.C. § 841 et seq., reasoning that

The aspects regulated by the Department of Transportation pertain to the physical requirements or manner in which hazardous materials must be transported by one who has a license. Hence, the "aspect" governed by the Secretary of Treasury under 18 U.S.C. § 841 et seq. is who may transport, manufacture, etc. The aspect regulated by the Department of Transportation is how items may be transported once the transporter obtains a license. In the present case, therefore, the 18 U.S.C. § 845 exclusion does not apply since the defendants were not charged with any offense concerning any aspect regulated by the Department of Transportation.

Id, at 466-67. The Scharstein decision is contrary to the holding in Illingworth.

The defendant contends § 845 is clear, unambiguous and that it should be given its plain meaning. There is a strong presumption that Congress expresses its intent through the language it uses. INS v. Cardoza-Fonseca, 480 U.S. 421, 432, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987). When the language is clear, courts should consider legislative history only to...