Appeals court sides with Little Rock protest firebombing defendant on three dropped charges

Three charges against man dropped

FILE — The Arkansas State Supreme Court building is shown in this undated file photo.
FILE — The Arkansas State Supreme Court building is shown in this undated file photo.

A Pulaski County man accused of firebombing police cars as a protest of the murder of a Black man at police hands in Minnesota got a shot of good news from the 8th U.S. Circuit Court of Appeals after a three-judge panel affirmed a lower court ruling dismissing the three most serious charges against him.

Mujera Benjamin Lung'aho, 32, of North Little Rock, was indicted Oct. 6, 2020, on one count each of conspiracy to maliciously damage property by use of explosive, malicious use of an explosive device to damage property, and use of an incendiary device during a crime of violence.

A superseding indictment handed up by a federal grand jury Feb. 3, 2021, merged Lung'aho's case with those of four co-defendants -- Brittany Dawn Jeffrey, Emily Nowlin, Aline Espinosa-Villegas and Renea Goddard -- and added 13 new charges against him, raising the possibility that, if convicted, he could be sentenced to life in prison.

Lung'aho was charged in the superseding indictment with three counts of possession of a destructive device in furtherance of a crime of violence, three counts of conspiracy to maliciously damage and destroy property by means of fire, three counts of possession of an unregistered explosive device, two counts of malicious damage and destruction of a vehicle by means of fire, one count of attempt to maliciously damage and destroy a vehicle by means 0f fire, and one count of making a destructive device.

Lung'aho and his four co-defendants were charged in connection with damage inflicted on public property, including slashing tires, firebombing and attempting to firebomb police cars, that occurred during protests in 2020 in the wake of George Floyd's death on May 25, 2020, at the hands of Minneapolis police. Floyd's killing touched off protests around the country that continued for months and have led some police departments to examine their use-of-force policies.

Following protests in Central Arkansas in the summer and fall of 2020, federal authorities accused Lung'aho of the Sept. 3, 2020, firebombing of a North Little Rock police cruiser at the Rose City substation after he was arrested in connection with the vandalism of Confederate markers in a Little Rock cemetery.

Lung'aho was also charged in connection with attempting to destroy a Little Rock police cruiser parked at the 12th Street substation on Aug. 26, 2020, and in the destruction of an Arkansas State Police cruiser two nights later using an improvised "Molotov Cocktail" explosive.

Through his attorney, Michael Kaiser of Little Rock, Lung'aho filed a motion in November 2021 to dismiss all counts against him with the exception of two counts of possession of an unregistered destructive device and one count of making of a destructive device. He disagreed with the government's contention that the federal arson charges were warranted because federal money had been used in part to pay for the damaged and destroyed property, saying that although all three departments had received federal assistance, no federal dollars had been used to pay for the police cars.

Lung'aho also argued that under a 2021 U.S. Supreme Court ruling in Bordon v. United States, arson does not qualify as a crime of violence, saying that "if someone could be convicted of the crime without having attempted to use force ... the offense is not a crime of violence -- regardless of what the defendant actually did."

Last October, Chief U.S. District Judge D. Price Marshall Jr. granted the dismissal of the three counts of possession of a destructive device in furtherance of a crime of violence -- each of which carries a statutory minimum sentence of 30 years in prison and a maximum of life in prison -- but left the remaining charges intact.

Last week, a three-judge panel of the 8th Circuit Court of Appeals, ruling on an appeal of Marshall's order by the U.S. Attorneys office, affirmed the ruling. In an opinion issued Thursday, Circuit judges David Stras, Bobby Shepherd and Ralph Erickson affirmed Marshall's ruling that the arson did not constitute a crime of violence. Although the panel did not rule on the issue of federal funds, it agreed with Lung'aho that no federal funds were used to purchase the damaged and destroyed property.

To qualify as a crime of violence, the 8th Circuit ruled, the act would have required malicious intent. In its ruling, the 8th Circuit said the act was reckless, saying "malice may be close to recklessness, but it is not the same."

In the opinion, Stras wrote, "our task is to determine whether the legal definition of arson necessarily has, as an element, the 'use of physical force' against the property of another ... the Supreme Court told us that any crime that can be committed recklessly does not."

The panel compared the difference to firing a bullet straight up into the air as opposed to firing a bullet into a crowd of people.

"An action that has a 3% chance of harming someone," Stras wrote, "like shooting a gun straight up in the air in a crowded park, might be reckless ... but such a low probability of harm would fail to satisfy the 'very high degree of risk' required by malice ... Someone who fires a gun directly into a group of people huddled together in a park has acted knowingly, practically certain that someone in the group will be seriously injured, if not killed."

U.S. Attorney Jonathan Ross said Monday that after reviewing the 8th Circuit ruling, his office has "requested guidance as to whether seeking further review would be appropriate in accordance with Department of Justice policy."

Kaiser said Monday that he welcomed the 8th Circuit decision on the possession counts but said the issue brings to bear a quirk in the law.

"This is one of those legal situations that make people hate lawyers," Kaiser said. "Is arson a crime of violence? Colloquially, the answer is yes, but legally under this weird approach that we lawyers use, it's not."

The issue of the remaining counts, he said, is still alive and will be appealed if Lung'aho is convicted of any of the arson counts at trial next month.

"We're excited for the chance to get this in front of a jury," Kaiser said, adding that the 8th Circuit's dicta -- nonbinding, side commentary in an opinion -- regarding federal funds holds out hope of a favorable outcome in an appeal.

"I don't know exactly how the 8th Circuit will come out on that issue, but that makes me feel very good about our chances," he said. "It's not binding on any court, including itself, but it's commentary that seems to support our position on those points."

Lung'aho's trial is scheduled to begin Aug. 28 before Marshall. Nowlin and Espinosa-Villegas have pleaded guilty to possession of an unregistered destructive device and are awaiting sentencing. Goddard pleaded guilty to conspiracy to possess an unregistered destructive device and is also awaiting sentencing.

Jeffrey pleaded guilty to conspiracy to possess an unregistered destructive device in May 2022 and was sentenced last December to time served and ordered to serve 18 months supervised release.

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