U.S. v. Ballinger

• Decision Date: 10 January 2005
• Docket Number: No. 01-15080.,No. 01-14872.,01-14872.,01-15080.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jay Scott BALLINGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

395 F.3d 1218

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.

January 10, 2005.

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Paul S. Kish (Fed. Pub. Def.), Fed. Def. Program, Inc., Atlanta, GA, for Ballinger.

Christopher A. Wray, Assistant Attorney General, Washington, DC, Amy Levin Weil, Office of U.S. Attorney, Atlanta, GA, for U.S.

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

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR and HILL^*, Circuit Judges.

MARCUS, Circuit Judge:

Jay Scott Ballinger appeals his convictions for five counts of destruction of religious property on account of their religious character, in violation of 18 U.S.C. § 247. Ballinger claims that § 247 is an unconstitutional exercise of Congress' commerce power, both facially and as applied to his offenses. Moreover, he argues that § 247 does not, by its express terms, reach his conduct, which involved traveling by car on the interstate highways and crossing the borders of four states for the purpose of burning churches. After reviewing the substance of Congress' commerce power, we have little trouble concluding that § 247, both facially and as applied to Ballinger, is a constitutional expression of Congress' well-established power to regulate the channels and instrumentalities of interstate commerce in order to prevent their use for harmful purposes. Furthermore, the well-settled meaning of the "in commerce" jurisdictional language employed by Congress in § 247 leads us to conclude that Ballinger's conduct falls squarely within the scope of the statute. Accordingly, we affirm.

I.

A.

On April 20, 1999, a federal grand jury in the Northern District of Georgia returned an indictment charging Jay Scott Ballinger with three counts of intentionally destroying religious property, in violation of 18 U.S.C. § 247, and three counts of using fire to commit those offenses, in violation of 18 U.S.C. § 844(h). One month later, on May 20, 1999, a federal grand jury in the Middle District of Georgia indicted Ballinger on two additional counts of intentionally destroying religious property, in violation of 18 U.S.C. § 247, and two additional counts of using fire to commit those offenses, in violation of 18 U.S.C. § 844(h). On December 14, 2000, Ballinger moved to dismiss the indictment in the Northern District of Georgia on the ground that the alleged offenses lacked a sufficient nexus with interstate commerce, and the United States Magistrate Judge recommended that the motion be denied.

Four months later, Ballinger entered a negotiated guilty plea in the United States District Court for the Northern District of Georgia. Ballinger pled guilty to the three counts of intentionally destroying religious property in violation of 18 U.S.C. § 247 charged in the Northern District of Georgia, and, pursuant to Federal Rule of Criminal Procedure 20, he pled guilty to the two counts of violating § 247 charged in the Middle District of Georgia. As part of the plea agreement, Ballinger expressly preserved "the right to appeal the constitutionality of § 247 under the Commerce Clause, U.S. Const., Art. I, § 8, cl. 3, both on its face and as applied to him." The magistrate judge recommended that the district court accept Ballinger's guilty plea, and in an order issued July 13, 2001, the district court approved and adopted the magistrate's Report and Recommendation in its entirety, concluding that § 247 was constitutional both facially and as applied. Thereafter, the district court sentenced Ballinger to life imprisonment on the count of violating § 247 that had resulted in the death of a volunteer firefighter who fought the blaze at one of the burned churches, and to 240 months' imprisonment, to run concurrently, on each of the four remaining counts.

Ballinger appealed on Commerce Clause grounds, and a divided panel of this Court reversed his convictions. The panel held that although § 247 was a constitutional exercise of the commerce power, Ballinger's conduct did not fall within the ambit of the statute. United States v. Ballinger, 312 F.3d 1264, 1276 (11th Cir.2002). On May 12, 2004, this Court vacated the panel opinion and directed that the case be heard en banc. United States v. Ballinger, 369 F.3d 1238 (11th Cir.2004) (en banc).

B.

The parties to this case stipulated to the following essential facts¹ as part of the negotiated plea agreement. Ballinger is a practicing "Luciferian," and considers himself a missionary of Lucifer. He has expressed hostility toward organized Christianity, and describes the burning of churches as his "work" and his "business."

In December 1998, Ballinger and his girlfriend, Angela Wood, left Indiana in Ballinger's Indiana-registered van, partly out of concern about a call to Ballinger's parents' Indiana home by an FBI agent. Ballinger and Wood traveled in Ballinger's van to Georgia, passing through Kentucky and Tennessee, and using interstate highways, purchasing gasoline and other goods, and staying in hotels all along the way. On the way to Georgia, Ballinger deliberately set fire to three churches in three states: the Mt. Eden Christian Church in Scottsburg, Indiana, on or about December 20, 1998; the Bolton Schoolhouse Missionary Baptist Church in Bonnieville, Kentucky, on or about December 21, 1998; and the Little Hurricane Primitive Baptist Church in Manchester, Tennessee, on or about December 22, 1998.

Ballinger arrived in Dalton, Georgia on December 22, 1998, and checked into the Best Inns of America Hotel. At 7:10 p.m., he used his Indiana Visa card to purchase a plastic gas can from the Dalton K-Mart store. At approximately 1:30 a.m. on December 23, 1998, Ballinger drove his van to the Amazing Grace Baptist Church, broke a church window using a tool he had brought from Indiana, poured gasoline into the broken window, and set fire to the church with a cigarette lighter. The fire completely destroyed the Amazing Grace Baptist Church. After setting that fire, Ballinger drove his van back to the Dalton Best Inns of America Hotel, where he spent the night.

The following night, Ballinger drove his van to the Mountain View Baptist church and deliberately burned its fellowship hall at approximately 1:09 a.m. on December 24, 1998. Again, Ballinger used a tool from his van to break a window, poured gasoline into the broken window, and set fire to the church, before driving away. The fire badly damaged the church's fellowship hall.

Ballinger and Wood checked out of the Dalton Best Inns of America Hotel and drove Ballinger's van to the Athens, Georgia area, where they checked into the Perimeter Inn on December 26, 1998. Along the way, Ballinger drove to the Sardis Full Gospel Church in Walton County and burned its fellowship hall, too, at approximately 12:53 a.m. on December 25, 1998, utterly destroying the building. Again, Ballinger started the fire by breaking a church window and pouring in gasoline. Ballinger then stayed at the Perimeter Inn in Athens until January 16, 1999. During his stay, shortly before 9:15 a.m. on December 31, 1998, Ballinger drove his van to the New Salem United Methodist Church in Banks County, Georgia. Again, he broke a window using a tool from his van, poured in gasoline, and set fire to the church. Before destroying the church completely, the fire caused the roof to collapse, killing volunteer firefighter Loy Williams and injuring three other volunteer firefighters.

Ballinger returned to the Perimeter Inn, where he stayed until approximately 11:30 p.m., when he drove to the Johnson United Methodist Church in Oconee County, Georgia. Once again, Ballinger used a tool from his van to break a church window, poured in gasoline, and set fire to the church, before driving back to his hotel. The fire badly damaged the church.

Ballinger checked out of the Perimeter Inn on January 16, 1999, and drove his van back to Indiana. Again he used the interstate highways, purchased gasoline and other goods, and stayed in hotels throughout the trip. Along the way back, he set fire to three more churches: the Cedar Grove Baptist Church in Franklin, Kentucky, on January 17, 1999; the Pleasant Hill Methodist Church in Elkton, Kentucky, on January 17-18; and the New Harmony Baptist Church in Beaver Dam, Kentucky, on January 18, 1999. During his travels, Ballinger crossed interstate borders six times, traveling from Indiana into Kentucky, from Kentucky into Tennessee, from Tennessee into Georgia, and then from Georgia back to Tennessee, then Kentucky, and finally Indiana. He burned a total of eleven churches during the course of this single arson spree.

II.

Ballinger was convicted under Title 18 U.S.C. § 247, which provides in relevant part:

(a) Whoever, in any of the circumstances referred to in subsection (b) of this section —

(1) intentionally defaces, damages, or destroys any religious real property, because of the religious character of that property, or attempts to do so; or

(2) intentionally obstructs, by force or threat of force, any person in the enjoyment of that person's free exercise of religious beliefs, or attempts to do so;

shall be punished as provided in subsection (d).

(b) The circumstances referred to in subsection (a) are that the offense is in or affects interstate or foreign commerce.

We understand Ballinger as having made three separate, though overlapping arguments for overturning his convictions under § 247. First, Ballinger says that § 247 is facially unconstitutional — that is, under no circumstances does Congress have the commerce power to proscribe the intentional destruction of religious property in or affecting commerce. Second, Ballinger claims that § 247 is unconstitutional as applied to his conduct — that is, even if Congress has the...