The opinion of the court was delivered by: Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
On May 24, 2012, defendant was charged in a three-count indictment with arson, in violation of 18 U.S.C. § 844(i) (Count I), use of fire in the interference with housing rights, in violation of 42 U.S.C. § 3631(a) (Count II), and use of fire in the commission of a felony, in violation of 42 U.S.C. § 844(h)(1) (Count III). Defendant has filed a motion to dismiss Count III of the indictment, claiming the indictment is multiplicitous and violates the Double Jeopardy Clause. For the reasons stated below, the motion is denied.
The government alleges that on June 17, 2007, Brian Moudry used fire in an attempt to burn down a residence at 318 S. Reed Street in Joliet, Illinois, and that he did so because the residence was occupied by an African American family.
The indictment charges three counts based on this conduct. The first charge, arson, is in violation of 18 U.S.C. § 844(i), which states in relevant part:
(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 5 years and not more than 20 years, fined under this title, or both...
The second charge, use of fire in the interference with housing rights, is in violation of 42 U.S.C. § 3631(a), which states in relevant part:
Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with--
(a) any person because of his race . . . and because he is or has been selling, purchasing, renting, financing, occupying, or contracting or negotiating for the sale, purchase, rental, financing or occupation of any dwelling . . . ... and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined under Title 18 or imprisoned not more than ten years, or both....
The third charge, use of fire in the commission of a felony, is in violation of 18 U.S.C. § 844(h)(1), which states in relevant part:
(1) uses fire or an explosive to commit any felony which may be prosecuted in a court of the United States . . . including a felony which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for 10 years. Defendant argues that the indictment is multiplicitous because double jeopardy precludes a district court from imposing consecutive sentences under Section 844(i) and Section 844(h). He also argues that a conviction under 42 U.S.C. § 3631 cannot serve as the predicate felony for a § 844(h) conviction because the latter is a lesser included offense of the former. Therefore, defendant asks the court to dismiss Count III of the indictment on double jeopardy grounds.
The Double Jeopardy Clause prevents a defendant from being tried and convicted multiple times for the same offense. Missouri v. Hunter, 459 U.S. 359, 365 (1983). Where the defendant faces multiple charges in the same trial, the Double Jeopardy Clause offers "protection against multiple punishments for the same offense," but "does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Id. (internal citations omitted). If Congress chooses to impose multiple punishments for an offense, it may do so. Garrett v. United States, 471 U.S. 773, 779 (1985). The first step in the double jeopardy inquiry, therefore, is to determine whether Congress clearly intended for cumulative punishments for the same offense conduct under separate statutory ...