Legal Lessons Learned: Consider seeking a federal indictment in arson cases, when a public safety officer has suffered a personal injury. The injury does not have to be serious or significant for the mandatory seven-year minimum sentence to apply under 18 U.S.C. 844 (i).
Howard Kirk Gibney and his son were arrested for setting seven fires at mattress and bedding stores in Louisville, KY. At one of those fires, on Nov. 11, 2003, Firefighter Carlos Cruz suffered a lacerated thumb.
Howard Gibney was indicted in federal court in Louisville, and later pled guilty. He was sentenced to 7 years in jail, plus he was ordered to pay restitution of $1,103,358.10. He appealed this sentence, arguing in part that the firefighter's thumb injury was not serious or significant. On March 7, 2008, the U.S. Court of Appeals for the 6th Circuit, located in Cincinnati, affirmed his sentence in United States of America v. Howard Kirk Gibney, Nos. 06-5909/06-6442, 2008 U.S. App. LEXIS 4912 4921.
Gibney was originally indicted on May 4, 2004. After he apparently threatened to kill a federal judge and government witnesses, an 11-count superseding indictment was issued on Oct. 4, 2005:
- Count One: one count of conspiring to maliciously damage a building, by means of fire, a building used in interstate commerce;
- Counts Three; Five through Eight: seven counts of malicious damaging, by means of fire, a building used in interstate commerce;
- Count Four: one count of maliciously damaging, by means of fire, a building used in interstate commerce, resulting in personal injury to a public safety officer performing duties as a direct and proximate result of defendant's conduct;
- Count Nine: one count of delivering a threatening communication to another by means of the U.S. Postal Service;
- Count 10: one count of conspiracy to murder a U.S. judge;
- Count 11: one count of threatening to murder potential government witnesses.
On April 7, 2006, Gibney entered into a plea bargain with the U.S. Attorney's Office in Louisville. He agreed to plead guilty to Counts One through Nine, and the government agreed to drop counts 10 and 11. He signed a written Plea Agreement, including a paragraph about his potential sentence:
At the time of sentencing, the United State will recommend a sentence of imprisonment within the applicable guideline range, but not less than any mandatory minimum sentence required by law.
Since the defendant was pleading guilty to Count Four - injury to public safety officer - he knew he was facing at least 5-years minimum in jail. The U.S. Attorney's Office believed that it should be seven-year minimum. Both sides agreed to submit the issue to the U.S. District Judge at the time of sentencing. The plea agreement provided:
"both parties agree to be bound by the Court's determination as to the minimum and maximum terms of imprisonment and supervised release."
The U.S. Code in question is 18 U.S.C. 884 (i):
"Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than five years and not more than 20 years, fined under this title, or both; and if personal injury results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall be imprisoned for not less than seven years and not more than 40 years, fined under this title, or both; and if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment."
The U.S. District Judge in Louisville, after obtaining a pre-sentence report, concluded that a seven-year minimum sentence must be imposed. Firefighter Carlos Cruz testified at the sentencing hearing that he had lacerated his thumb while using an axe to break a glass door at the scene of the Nov. 11, 2003 fire. He explained that he was not wearing his protective gloves because he was in a hurry to comply with his captain's orders to gain entry into building. The Court of Appeals wrote:
"Cruz stated that he suffered nerve damage, which required surgery to repair and rendered him unable to use his thumb for approximately one month. This injury required him to miss work and later necessitated a second surgery. Cruz testified he still has problems with stiffness and numbness in his thumb."
The U.S. District Judge also imposed a restitution order; while the presentence report had claims of property owners of $756,053.29, the U.S. Attorney's office informed the judge that additional claims had been received over $1 million in additional claims (final amount was over $1,103.358.10).
On appeal, the defendant argued that he should have only been sentenced to 5-years since the firefighter did not suffer "serious" or "significant" injury. The U.S. Court of Appeals disagreed, "Because we agree with the district court that the term 'personal injury' as used in the statute is not ambiguous, we likewise find no error with the district court's imposition of the mandatory minimum sentence pursuant to Sec. 844 (i)."
The Sixth Circuit held that there was no requirement to prove Firefighter Cruz suffered a "serious" or "significant" injury. The Court of Appeals wrote, "Here, Congress was free to include 'significant' or 'serious' as part of the injury element of Sec. 844(i). It did not."
The U.S. Court of Appeals referred to other statutes where Congress did use the term "significant" or "serious" or "substantial" injury, and concluded "we can only assume this omission is intentional." Examples of such statutes include:
- 18 U.S.C. 2118 (a)(3) - robberies and burglaries involving controlled substance;
- 18 U.S.C. 2332b (a)(10(b) - acts of terrorism;
- 15 U.S.C. 1261 (f)(1)(A) - hazardous substances.
Conclusion: consider seeking a federal indictment in arson cases whenever a firefighter or other public safety officer is injured. I am sure that your local U.S. Attorney's Office would be honored to assist (the author of this article worked nine years in the U.S. Department of Justice, including six years as an Assistant U.S. Attorney in Washington, D.C.).
LARRY BENNETT, a Firehouse.com Contributing Editor, is an attorney and the Deputy Director of Fire Science Education at the University of Cincinnati's Fire Science Department. He has been a volunteer firefighter/EMT for the past 27 years, and is the author of a new textbook, Fire Service Law, that is used by the National Fire Academy (NFA) in its distant learning course, Political and Legal Foundations of Fire Protection. The NFA appointed Larry as their Subject Matter Expert to update the curriculum in this course. and he serves on the NFPA 1500 Fire Service Occupational Safety and Health Committee. Larry writes a free Fire & EMS and Safety Law newsletter which you can sign up online to receive free. Larry writes a free Fire & EMS Law newsletter that can be read at the UC Fire Science web page To read Larry's complete biography and view his archived articles, click here. You can reach Larry by e-mail at [email protected].
