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UNITED STATES v. FENTON

June 29, 1998

UNITED STATES OF AMERICA,
v.
DONALD LEE FENTON, Defendant



The opinion of the court was delivered by: SMITH

MEMORANDUM and ORDER

 D. BROOKS SMITH, District Judge

 Donald Lee Fenton seeks dismissal of Count II of the indictment against him, which alleges that he unlawfully "threatened to assault and murder John Hugya, legislative aide to John P. Murtha, United States Representative for the Commonwealth of Pennsylvania, 12th Congressional District, with the intent to impede, intimidate, interfere with and retaliate against John Hugya while he was engaged in and on account of the performance of his official duties." Dkt. no. 8, at 2. This threat was allegedly made in the course of a phone conversation to insurance adjuster Randy Leventry concerning repair work on Fenton's truck, during which Fenton threatened to kill Leventry, Murtha, Hugya and "everyone that [sic] worked in the Erie Insurance Office." Dkt. no. 1, at 3. Fenton argues that, even if he made such a threat, Hugya does not fall within the statutory definition of the types of government officials protected by 18 U.S.C. § 115(a)(1)(B), the provision under which he was charged. Thus, as a matter of law, Fenton contends that the indictment at count II must be dismissed.

 18 U.S.C. § 115(a)(1)(B) provides, in pertinent part:

 
Whoever threatens to assault, kidnap, or murder, a United States official . . . or an official whose killing would be a crime under [section 1114 of this title] . . . shall be punished as provided in subsection (b). *fn1"

 "United States Official" is further defined as "the President, President-elect, Vice President, Vice President-elect, a Member of Congress, a member-elect of Congress, a member of the executive branch who is the head of a department listed in 5 U.S.C. [§ ] 101, or the Director of the Central Intelligence Agency." 18 U.S.C. § 115(c)(4). A department head within the meaning of 5 U.S.C. § 101 is the top presidential appointee of a cabinet-level department or agency. Hugya is not a member of Congress, a cabinet member, or any other person within the enumerated categories protected by § 115(a)(1)(B). Thus, Fenton may be prosecuted under that section only if Hugya is "an official whose killing would be a crime" under 18 U.S.C. § 1114. That is the question to which I now turn.

 Section 1114 proscribes the killing or attempted killing of "any officer or employee of the United States or of any agency in any branch of the United States Government. . . ." Although § 115 refers to "officials" while § 1114 uses the term "officer," these two terms have essentially the same meaning at law. See Gary v. Board of Trustees of Employees' Retirement Sys., 223 Md. 446, 165 A.2d 475, 477 (Md. App. 1960); Black's Law Dictionary 1084 (6th ed. 1990). *fn2" Had Fenton carried through with his alleged threat, there is little doubt that he could have been prosecuted directly under § 1114, as Hugya is indisputably either an officer or employee of the United States. Here, however, Fenton stands accused only of threatening Hugya, behavior which is criminalized only under § 115(a)(1)(B), although that statute incorporates § 1114 within its scope of protected parties.

 Fenton acknowledges that Hugya is a "person" whose killing would be a crime under § 1114, arguing instead that Congress did not incorporate § 1114's full universe of government workers into § 115(a)(1)(B). According to Fenton, when Congress chose to refer to an "official whose killing would be a crime" under § 1114, it necessarily excluded mere government employees from its coverage. I agree. *fn3"

 I begin, as I must, with the language of the statute. United States v. Ron Pair Enters., 489 U.S. 235, 241, 103 L. Ed. 2d 290, 109 S. Ct. 1026 (1989); Pope v. East Brunswick Bd. of Educ., 12 F.3d 1244, 1249 (3d Cir. 1993). If "the statute's language is plain, the sole function of the courts is to enforce it according to its terms." Ron Pair, 489 U.S. at 241 (quoting Caminetti v. United States, 242 U.S. 470, 61 L. Ed. 442, 37 S. Ct. 192 (1917)). In such a case, that is, "where the language of the statute is clear and unambiguous on its face, resort to the legislative history is improper." Pope, 12 F.3d at 1249 n.5 (discussing West Va. Univ. Hosp. v. Casey, 499 U.S. 83, 98, 113 L. Ed. 2d 68, 111 S. Ct. 1138 (1991)). Here, however, the language of § 115(a)(1)(B) makes no explicit reference to threats against either government employees in general or congressional aides in particular. Had Congress intended unambiguously to incorporate such an expansive scope of coverage into this statute, it could have explicitly said so, or merely used the word "person" in place of "official" when it drafted § 115. Alternatively, it could have tracked the language of § 1114 and referred to "any officer or employee of the United States. . . ." Thus, Congress' reference to "an official whose killing would be a crime under" § 1114 cannot be said to unambiguously mandate criminal liability for threats against any government employee.

 Given this ambiguity in the language of a criminal statute, it is appropriate to look to the legislative history in construing its text. That history, however, suggests that Congress did not intend to include all government employees within the scope of § 115(a)(1).

 Section 1114 is the older of the two statutes, having been enacted in 1948 and amended on numerous occasions thereafter. Its purpose was to criminalize the killing of certain enumerated government actors, but was not--and still is not--to protect them against threats. That latter purpose was accomplished by the enactment of § 115 in 1984 and its amendment in 1986. *fn4"

 In 1984, § 1114 recited a whole litany of covered officers *fn5" and employees, including, inter alia, employees of the department of Agriculture charged with the control of animal diseases, employees of the National Park Service, employees of the Consumer Product Safety Commission carrying out regulatory investigations, as well as employees of the FDIC, FSLIC, Comptroller of the Currency and Federal Reserve System. Generally, these were employees who had some regulatory or law enforcement function. Literally dozens of types of personnel were enumerated in this version of § 1114, and its text takes up a full page in United States Code Annotated (West 1984).

 Nevertheless, congressional aides were not included in the early versions of § 1114, an indication that, whatever the merits of the issue now, Congress could not have been considering whether congressional staff members should fall under § 115's protection then. In 1996, however, Congress streamlined § 1114 by providing simply that it applies to "any officer or employee of the United States. . . ." Pub. L. 104-132 § 727(a), H.R. Conf. Rep. No. 518, 104th Cong., 2d Sess., 1996 U.S.C.C.A.N. 944, 1996 WL 183509. It is only under the 1996 amendment that a congressional ...


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