U.S. v. Ballinger

• Decision Date: 21 November 2002
• Docket Number: No. 01-14872.,No. 01-15080.,01-14872.,01-15080.
• Citation: 312 F.3d 1264
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jay Scott BALLINGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

312 F.3d 1264

UNITED STATES of America, Plaintiff-Appellee, v. Jay Scott BALLINGER, Defendant-Appellant.

No. 01-14872.

No. 01-15080.

United States Court of Appeals, Eleventh Circuit.

November 21, 2002.

Paul S. Kish, Federal Public Defender, Atlanta, GA, for Defendant-Appellant.

Christopher A. Wray, Washington, DC, for Plaintiff-Appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before BIRCH, HILL and HALL^*, Circuit Judges.

HILL, Circuit Judge:

Jay Scott Ballinger pled guilty to four counts of church arson in violation of 18 U.S.C. § 247(a)(1). He also pled guilty to one count providing for enhanced penalties for violation of the statute "if death results from [the defendant's] acts," 18 U.S.C. § 247(d)(1) or "if bodily injury results to any person ... and the violation is by means of fire...." 18 U.S.C. § 247(d)(2). Pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, Ballinger conditioned his plea upon a judicial determination of the constitutionality of § 247, both on its face and as applied to him. The district court upheld the constitutionality of the statute in both respects, and this appeal followed.

I.

The district court recited the following facts, stipulated to by Jay Scott Ballinger and the government, as relevant to the constitutional issues. Jay Scott Ballinger deliberately set fire to five churches in the Northern and Middle Districts of Georgia between December 22, 1998, and January 16, 1999. Ballinger's fires completely destroyed the Amazing Grace Baptist Church in Chatsworth, Georgia ("Amazing Grace"), the New Salem United Methodist Church in Commerce, Georgia ("New Salem"), and the fellowship hall of the Sardis Full Gospel Church in Monroe, Georgia ("Sardis Full Gospel"). The New Salem fire resulted in the death of one volunteer firefighter and bodily injury to three other firefighters. Ballinger's two additional fires badly damaged the Johnson United Methodist Church in Watkinsville, Georgia ("Johnson United") and the fellowship hall of the Mountain View Baptist Church in Chatsworth, Georgia ("Mountain View").

Prior to its destruction, Amazing Grace had purchased song books from Knoxville, Tennessee, pew coverings and hymnals from Cleveland, Tennessee, and fund-raising supplies (candy) from Montgomery, Alabama. Its 300-member congregation, some of whom resided in neighboring Tennessee, had recently purchased the church building and one acre of land from the North Georgia Conference of the United Methodist Church, headquartered in Evanston, Illinois. To finance this acquisition and repair storm damage, the congregation held yard sales, bake sales, and sold cookbooks. The congregation commissioned the printing of these cookbooks in Collierville, Tennessee. Amazing Grace also collected donations for the poor, some of which were provided to needy travelers in the form of food, household items, and hotel or motel lodging.

Mountain View, a 372-member congregation, had acquired Bible school materials from California, building supplies from Alabama and other out-of-state vendors, and plumbing and electrical supplies from Collierville, Tennessee. The church belonged to the 14-member Coosawattee Baptist Association and donated money to the Georgia Baptist Children's Home, which provided housing, clothing, food, and classroom instruction to foreign children intercepted by the United States Immigration and Naturalization Service, as well as children from other domestic states. In 1998, Mountain View donated $1,536 in such funds. The church contributed an additional $1,536 to Georgia Baptist Hospital's indigent-care fund which, in part, provided medical services to children whom its doctors brought to Georgia from the Dominican Republic, Russia, and various South American countries. At the time of the fire, at least one of Mountain View's members was living out-of-state; this member was serving in the United States military but returned to the church while on leave. Mountain View also used a fifteen-passenger van shipped from Orlando, Florida to transport its youth choir and elderly women's groups.

Sardis Full Gospel, a 60-member congregation, regularly held week-long revivals, hosting visiting pastors from Canada, Florida, Mississippi, Ohio, and South Carolina. These out-of-state pastors would either stay with church members, in a local hotel, or in the church itself, which was equipped with showers and sleeping facilities. Further, the congregation prepared and served meals to the visiting pastors in its fellowship hall, which defendant destroyed on December 25, 1998. The church had also acquired, via donation, a fax machine/copier from Panasonic, Inc., a donation that was approved by the company's New Jersey headquarters.

Like Amazing Grace, New Salem was a member of the North Georgia Conference of the United Methodist Church, whose national headquarters were in Evanston, Illinois. Through this conference, New Salem, which had roughly 120 members at the time of its destruction, regularly sent money to the national office. The national office used these funds for a variety of purposes, including foreign and domestic missions. To subsidize its pastor's pension, New Salem also contributed, through the conference, to the Illinois-based pension administrator. The church property itself was held in trust for the General Conference of the United Methodist Church in Illinois.

Prior to its destruction, New Salem had acquired office supplies from Ottawa, Illinois; Bible school materials from Grandview, Missouri; banners from Nashville, Tennessee; church bulletin and newsletter-making materials from Canton, Ohio; and a steeple from Alabama. The congregation had several out-of-state members and several out-of-state recipients of its monthly newsletters. To finance youth group trips and outings, including trips to Orlando, Florida and Chattanooga, Tennessee, New Salem members held fund-raising barbecues, bake sales, car washes and sold candy.

Johnson United, a 132-member congregation, also belonged to the North Georgia Conference of the Evanston, Illinois-based United Methodist Church, to which it regularly sent monetary apportionments. Like New Salem, Johnson United subsidized its pastor's pension plan and health insurance by contributing, through the conference, to the United Methodist Church's General Board of Pension and Health Benefits. The church property itself was held in trust for the General Conference of the United Methodist Church in Illinois. Several of Johnson United's members lived in other states, including Illinois, yet continued to attend services. Additionally, the congregation purchased Sunday school and Bible school materials from Nashville, Tennessee; Boy Scout and Girl Scout troops used the church for meetings; and the church served as a voting precinct for citizens in its district.

All five of the damaged or destroyed churches received annual visits from the Nashville, Tennessee-based Gideon Bible Ministry, which conducted worship services and collected monetary donations used for placing Bibles throughout the United States and in 175 different countries. Further, all five of the churches purchased all of their propane gas from out-of-state suppliers, though local services delivered it. Mountain View was also insured by an out-of-state carrier, Church Mutual Insurance Company of Wisconsin.

Finally, the parties agreed that Ballinger and his girlfriend, Angela Wood, traveled in interstate commerce to commit the arsons, purchasing goods and services en route, including the gasoline used to start the fires.¹

II.

Title 18 U.S.C. § 247(a)(1) provides that whoever "intentionally defaces, damages or destroys any religious real property, because of the religious character of that property, or attempts to do so" is guilty of a federal crime.² Ballinger concedes that he committed the church arsons with which he was charged, but contends that the district court should have, nevertheless, dismissed the indictments³ against him because § 247 is unconstitutional both on its face, and as applied to him. We review these issues of law de novo. United States v. Scott, 263 F.3d 1270, 1271 (11th Cir.2001).

A. The Facial Challenge

Ballinger claims that the statute is unconstitutional on its face because its enactment exceeded Congress' authority under the Commerce Clause. We disagree.

Congress' authority under the Commerce Clause extends to the regulation of activities which are in or affect interstate commerce. United States v. Lopez, 514 U.S. 549, 559, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Congress included within § 247 a jurisdictional element which expressly requires the government to prove this interstate commerce nexus. 18 U.S.C. § 247(b). The statute applies only when "the offense is in or affects interstate or foreign commerce." Id. In the absence of sufficient proof of the interstate commerce connection, the statute does not apply to the arson charged. Id. We have previously held that a statute enacted under the Commerce Clause is constitutional on its face if it contains a jurisdictional element that "ensure[s], through case-by-case inquiry, that the activity in question affects interstate commerce." United States v. Cunningham, 161 F.3d 1343, 1346 (11th Cir.1998) (quoting Lopez, 514 U.S. at 562, 115 S.Ct. 1624). We conclude, therefore, that Congress did not exceed its authority under the Commerce Clause when it enacted 18 U.S.C. § 247, and the statute is constitutional on its face. Accordingly, we have jurisdiction to determine whether the statute was applied constitutionally to Ballinger.

B. The "As Applied" Claim

Ballinger claims that § 247 does not apply to the acts for which he was convicted, namely the arson of five small, rural churches in Georgia, because there was an insufficient connection between these arsons and interstate commerce, as required by the Constitution. If so, the Constitution forbids the...