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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

UNITED STATES OF AMERICA,

Plaintiff,

v.

KEVIN TUBBS, JOSEPH DIBEE,

JOSEPHINE S. OVERAKER, JUSTIN

SOLONDZ, and BRIANA WATERS,

Defendants.

Case No. CR05-5828FDB

ORDER DENYING DEFENDANT

WATERS’ MOTION TO LIMIT

COUNT 6 OF THE INDICTMENT TO

ARSON OF A BUILDING USED IN

INTERSTATE COMMERCE

Defendant Waters moves to limit Count 6 (charging use of a destructive device during a

crime of violence pursuant to 18 U.S.C. § 924(c)) of the Fourth Superseding Indictment to arson of

a building used in interstate commerce as charged in Count 5. Because of the five-year statute of

limitations for violations of 18 U.S.C. § 924(c), Waters argues that Count 7 charging arson of a

building belonging to an institution receiving Federal financial assistance, which has a ten-year

limitation period, would impermissibly expand the predicate for a crime of violence under Section

924(c), which has a five-year limitation period. Defendant concedes that Counts 5 and 6 are within

the five-year limitation period. 

The Government argues that the language of Count 6 identifies the predicate offense only as

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26 ORDER - 2

“the arson of the Center for Urban Horticulture at the University of Washington”; the count does not

allege that this predicate offense involved destruction of a building in interstate commerce or that it

involved destruction of a building of an institution receiving Federal financial assistance (18 U.S.C §§

844(i) & (f), respectively. 

Defendant Waters counters the Government’s response arguing that “arson” is not in and of

itself a crime, that it must refer to a specific offense, under a particular criminal code, with particular

elements. Thus, the only arson offense that Waters was accused of in Count 5 was arson of a

building in interstate commerce. Waters concludes that the import of the difference is providing

notice to an accused, and Waters only received notice that she was charged with arson of a building

in interstate commerce, § 844(k) and use of a destructive device during that arson under § 924(c),

and, therefore, that she is “entitled to the mental repose of not having to stand trial on a § 924(c)

charge based upon an arson predicated on some other statutory section.” 

In United States v. Randall, 171 F.3d 195 (4th Cir. 1999), the Court noted that the

Government has no obligation to specify the particular crime of violence underlying the 18 U.S.C. §

924(c) charge, but that 

if the government specifies in the indictment the § 924(c) predicate offense on which

it is relying, “[a] conviction that rests, no matter how comfortably, on proof of

another [predicate] offense cannot stand.

Id. at 205. In Randall, the indictment specified that the predicate offense of distribution of a

controlled substance, but the jury instructions allowed conviction based on a different predicate

offense – possession with intent to distribute – therefore, the Court reversed the convictions. 

Waters acknowledges Randall, but argues that in the Second Superseding Indictment, the

only arson offense that Waters was accused of committing was in Count 5, arson of a building in

interstate commerce; therefore, Count 6 must have been based on such arson. 

A reading of Count 6 reveals that Waters’ argument lacks merit. Count 6 charges use of “a

destructive device (an incendiary bomb), during and in relation to a crime of violence, to wit: the

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26 ORDER - 3

arson of the Center for Urban Horticulture at the University of Washington, a crime for which they

may be prosecuted in a court of the United States.” Count 6 provides notice that the use of a

destructive device during a crime of violence in relation to the arson of the Center for Urban

Horticulture at the University of Washington is being charged, and there is no qualification that the

building involved interstate commerce or that the building belonged to an institution receiving

Federal financial assistance. Count 5 is separate from Count 6, and Count 6 is sufficiently

informative of the offense charged. 

ACCORDINGLY, IT IS ORDERED: Motion of Defendant Waters to Limit Count 6 of the

Fourth Superseding Indictment To Arson of A Building Used in Interstate Commerce [Dkt. # 170] is

DENIED. 

DATED this 17th day of September, 2007.

AFRANKLIN D. BURGESS

UNITED STATES DISTRICT JUDGE

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