Washington Law Review


Peter Moreno


A federal statute, 18 U.S.C. § 844(h)(2) (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: (I) 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 statute—suggesting 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(h)(2) 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(h)(2) 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(h)(2) when doing so would produce absurd results.

First Page


Included in

Criminal Law Commons