United States v. Nguyen

In this appeal, we address whether the Double Jeopardy Clause prohibits a court from imposing consecutive sentences for two counts of the same indictment, where one count charges the defendant with destroying property by means of an explosion, and the other charges the defendant with using and carrying a destructive device during the commission of the former count. We also address whether minor damage to an apartment complex renders this murder case subject to the federal arson/explosion statute because the crime involved an activity affecting commerce. 18 U.S.C. § 844(i).

Tam Duy Nguyen admitted to the police that he gave instructions on how to build a ear bomb to another party, paid that individual to construct the bomb, and placed the bomb under the driver’s seat of Lam Huu Diep’s van, which was parked in front of an apartment building. On January 23, 1992, Diep entered his van and turned his key in the ignition, triggering an explosion that killed Diep, destroyed his van, and blew out the windows and doors of two units of the apartment building.

Following trial by jury, Nguyen was convicted on three counts. Count 1 charged Nguyen with conspiring to violate 18 U.S.C. § 844(i), a violation of 18 U.S.C. § 371. Count 2 charged Nguyen with damaging and destroying property that was used in interstate commerce or in an activity affecting interstate commerce by means of an explosive, a violation of 18 U.S.C. § 844(i). Count 3 charged Nguyen with using and carrying a firearm (which includes explosives among its definitions under 18 U.S.C. §§ 921(a)(3) and (4)) in violation of 18 U.S.C. § 924(c)(1).

On appeal, Nguyen argues that Counts 2 and 3 were multiplicitous and violated the Double Jeopardy Clause, and that the Government failed to prove the interstate commerce element of 18 U.S.C. § 844(i).

In United States v. Singleton, 16 F.3d 1419 (5th Cir.1994), we addressed the question whether the Double Jeopardy Clause prevented the Government from charging the defendants with both carjacking, a violation of 18 U.S.C. § 2119, and the use or carrying of a firearm during or in relation to a crime of violence, a violation of 18 U.S.C. § 924(c)(1). We held that the question is whether the statutes indicate a congressional desire to impose multiple punishments. Id. at 1428. Finding that § 924(c) on its face provided for multiple punishments, we concluded that the defendants could be tried on both counts without violating the Double Jeopardy Clause. Id. at 1429. Singleton’s rationale applies equally to the instant case; we find that Nguyen’s convictions for violating §§ 844(i) and 924(c) do not violate the Double Jeopardy Clause.11

As for Nguyen’s Interstate Commerce argument, we find Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985), controlling, at least until the Supreme Court reconsiders it in light of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Russell, the Supreme Court observed regarding § 844(i): “In sum, the legislative history suggests that Congress at least intended to protect all business property, as well as some additional property that might not fit that description, but perhaps not every private home.” Id. at 862, 105 S.Ct. at 2457. The Court went on to state that while the statute “[b]y its terms ... only applies to property that is ‘used’ in an ‘activity1 that affects commerce,” the local rental of an apartment was sufficient to fall within this category. Id. In the instant case, the van that exploded was used to provide maintenance supplies for the building, the building was also damaged, and two of the building’s apartments were being used as business offices. Pursuant to Russell, the rental property damaged by Nguyen’s explosion was property being “ ‘used’ in an ‘activity’ that affects commerce,” and thus interstate commerce, within the meaning of § 844®.

For the reasons discussed above, Nguyen’s sentences are AFFIRMED.