U.S.A v. Troy

• Decision Date: 26 August 2010
• Docket Number: No. 09-2121.,09-2121.
• Citation: 618 F.3d 27
• Parties: UNITED STATES of America, Appellee,v.Roxanne TROY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

618 F.3d 27

UNITED STATES of America, Appellee,v.Roxanne TROY, Defendant, Appellant.

No. 09-2121.

United States Court of Appeals, First Circuit.

Heard July 27, 2010.

Decided Aug. 26, 2010.

COPYRIGHT MATERIAL OMITTED

John M. Thompson, with whom Thompson & Thompson, P.C. was on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before BOUDIN, SELYA and GAJARSA,^* Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Roxanne Troy raises claims of evidentiary insufficiency, instructional error, and inadequacy of the charging document, all of which require us to explore the parameters of the interstate commerce element of the federal arson statute, 18 U.S.C. § 844(i). The appellant caps her asseverational array with a claim of sentencing error. This final claim depends on the notion that section 844(i)'s mandatory minimum term of imprisonment does not preclude the imposition of a stand-alone sentence of probation. After careful consideration of the arguments ably presented by the appellant's counsel, we reject all of these claims and affirm the judgment below.

I. BACKGROUND

Because the appellant's principal claim of error is couched as a challenge to the sufficiency of the evidence, we rehearse the facts in the light most hospitable to the verdict, consistent with record support. United States v. Rodríguez-Vélez, 597 F.3d 32, 38 (1st Cir.2010).

For roughly eight years, beginning in 1994, the appellant and her husband, David Troy, operated “Rox's,” a nightclub and bar located at 124 Main Street, Oxford, Massachusetts. They closed the establishment in 2003, but by early 2006, they had reopened it.

The resumption of business posed a problem. In 2004, a law had taken effect in Massachusetts, imposing new fire safety requirements on certain establishments with a seating capacity of 100 or more persons. See Mass. Gen. Laws ch. 148, § 26G 1/2. The law demanded, among other things, that these facilities install sprinkler systems by a specified deadline. Rox's was subject to this proviso.

On April 15, 2006, the Oxford fire chief, Jeffrey Wilson, wrote to the appellant, noting her obligation to submit plans for the installation of a conforming sprinkler system no later than May 15, 2006, with installation to be completed by November 15, 2007. In response, the appellant stated that she did not intend to install a sprinkler system but, rather, would raze the building and “construct a new establishment” at 124 Main Street. Chief Wilson did not reply directly to the appellant's letter; he did, however, inform Kimberly Golenski, a managerial employee at Rox's, that the sprinkler system plans would have to be submitted by December 31, 2006 for Rox's to be in compliance with the law.

No plans were proffered by that date, and Chief Wilson told the chief of police that both the liquor license and the certificate of occupancy for Rox's should be regarded as null and void as of midnight on December 31, 2006. Rox's closed at that time and never reopened for business. The Town of Oxford (Town) subsequently refused to renew the liquor license.

Undaunted, the appellant applied for a new liquor license for the same site. She later sued the Town, asserting a right to renew the previously suspended license.

Early in 2007, the Town performed fire, electrical, and building inspections at the site. The appellant thereafter effected repairs to the building and its accouterments as a means of addressing shortcomings identified in the recent spate of inspections.

In April of 2007, Golenski began cooperating with local law enforcement and the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives in their joint investigation into an attempted arson at Rox's. On April 10, 2007, Golenski-wearing a concealed wire-met with the appellant. In the course of their conversation, the appellant admitted that she had offered Rene Armenia, Golenski's boyfriend, $10,000 to burn Rox's to the ground. The fee was to be paid $5,000 in advance and $5,000 after the arson was accomplished.

During this same conversation, the appellant and Golenski also discussed ways in which Golenski could torch Rox's and make it look like an accidental fire. The appellant vouchsafed that, “after it's done, I will give you something.”

In due season, a federal grand jury sitting in the District of Massachusetts returned an indictment charging the appellant with two counts of solicitation to commit a crime of violence in violation of 18 U.S.C. § 373(a), and one count of attempted arson in violation of 18 U.S.C. § 844(i). After a modicum of pretrial skirmishing, not relevant here, the case went to trial in March of 2009. At the close of the government's case in chief and again at the close of all the evidence, the appellant moved for a judgment of acquittal. See Fed.R.Crim.P. 29. All of the counts required proof of the elements of 18 U.S.C. § 844(i)-arson was the “crime of violence” specified in each of the first two counts of the indictment-and the appellant argued that the government had failed to present sufficient evidence to prove the interstate commerce element of section 844(i). The district court denied both motions.

The jury convicted the appellant on all three counts. On July 16, 2009, the district court sentenced her to a five-year incarcerative term on each count to run concurrently, followed by two years of supervised release. This timely appeal ensued.

II. ANALYSIS

We divide our analysis into three parts, each addressing a discrete set of claims. Under this taxonomy, we first consider the appellant's claims relating to the parameters of the interstate commerce element of 18 U.S.C. § 844(i). We then address her plaint that the indictment failed adequately to describe the charged crimes. Finally, we grapple with her claim of sentencing error.

A. “Use” under 18 U.S.C. § 844(i).

The appellant's flagship claims concern the parameters of the interstate commerce element of section 844(i). The first of these deals with the sufficiency of the evidence. The appellant maintains that the trial court erred in denying her end-of-case Rule 29 motion for acquittal because the evidence did not establish that Rox's was “used” in interstate commerce as required by section 844(i).

This challenge presents a question of law, engendering de novo review. See Rodríguez-Vélez, 597 F.3d at 38. To answer that question, we must look at the evidence as a whole and draw all reasonable inferences therefrom in favor of the verdict. Id. Our objective is to ascertain whether the record evidence permitted a reasonable juror to find that each element of the crime charged was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

At the heart of the appellant's argument lies a dispute over statutory interpretation. The pertinent statute, section 844(i), provides:

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....

18 U.S.C. § 844(i). The dispute in this case revolves around whether a reasonable jury could have found that the building at 124 Main Street, at the time of the solicited/attempted arson, was being “used” in interstate commerce within the purview of this statute.

The Supreme Court shed some light on this question in Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). That case dealt with the arson of an owner-occupied residence not itself devoted to a commercial purpose. Id. at 850-51, 120 S.Ct. 1904. The Court indicated that, with respect to “use,” the proper inquiry focuses on the function of the targeted structure. Id. at 854, 120 S.Ct. 1904. The Court added that the federal arson statute's “use[ ] in interstate commerce” provision “is most sensibly read to mean active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce.” Id. at 855, 120 S.Ct. 1904. Section 844(i) “covers only property currently used in commerce or in an activity affecting commerce.” Id. at 859, 120 S.Ct. 1904. The case at hand requires us to determine what type of use is sufficiently “active” and “current[ ]” to satisfy this test in a case in which, unlike in Jones, the building is not a private residence but, rather, a commercial establishment that was not open for business at the time of the planned arson.

To begin Jones is factually inapposite. Consequently, the Jones Court's language cannot be transplanted root and branch into the much different terrain of this case. Nevertheless, we can derive guidance from that language. The Jones Court expressed concern that, were it to find a private residence subject to the federal arson statute, it would “make virtually every arson in the country a federal offense.” Id. at 859, 120 S.Ct. 1904. We share the same concern about avoiding a reading of section 844(i) that reaches too far.

This brings us to the appellant's invitation to adopt a strict and mechanical reading of the language employed by the Jones Court. We decline this invitation: we do not read Jones as suggesting that all commercial establishments, once closed for business for any period or purpose, move beyond the reach of section 844(i).

The reading suggested by the appellant would produce ludicrous results. The phrases “currently used” and “active employment” cannot sensibly be read to mean “open for business at the precise moment in time when the match is struck.” Under such a forced reading, a building used for prototypically commercial purposes would, if closed for business overnight, fall beyond the reach of the statute during off hours. So, too, would a...