Reading a Relational Element into Section 844(H)(2) of the Organized Crime Control Act of 1970: Carrying Out Congressional Intent or Legislating from the Bench?

Abstract:     
Section 844(h)(2) of the Organized Crime Control Act of 1970 punishes one who carries an explosive during the commission of any felony which may be prosecuted in a court of the United States with a mandatory ten-year prison sentence. In December 2007, the Supreme Court granted certiorari in United States v. Ressam to resolve a circuit split over whether section 844(h)(2) includes a relational element. The Ninth Circuit held in Ressam that section 844(h)(2) implicitly contains a relational element requiring the government to connect the explosives with the underlying felony to get a conviction under the statute. The Third and Fifth Circuits have refused to read the relational element into section 844(h)(2), arguing that to do so unconstitutionally adds an element to the crime by judicial fiat.

This Comment argues that section 844(h)(2) should be read to contain a relational element requiring the government to connect the explosives and the underlying felony to obtain a conviction under the statute. Section 844(h)(2), when read to include a relational element, furthers Congress's intent and purpose and eliminates the potential for absurd convictions under the statute. The relational element removes from the scope of the statute, for example, the construction worker who legally carries explosives in the bed of his truck when he uses a fake driver's license or passport during a traffic stop. The targets of Congress-criminals who use explosives to facilitate the commission of a felony-remain within the scope of section 844(h)(2) when read to include a relational element. The relational element also removes the possibility for discriminatory use of the statute by motivated prosecutors. To fulfill Congress's intent and purpose behind section 844(h)(2), the Supreme Court should uphold the Ninth Circuit's decision in Ressam, and read the statute to include a relational element.

Keywords: Ressam, explosives, 844(h)(2), relational element, Ivy, Rosenberg, during and in relation to

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