U.S. v. Martin

• Decision Date: 14 August 1995
• Docket Number: No. 94-3342,94-3342
• Citation: 63 F.3d 1422
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory Lee MARTIN, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1422

63 F.3d 1422

UNITED STATES of America, Plaintiff-Appellee, v. Gregory Lee MARTIN, Sr., Defendant-Appellant.

No. 94-3342.

United States Court of Appeals, Seventh Circuit.

Argued June 5, 1995.

Decided Aug. 14, 1995.

Joel Merkel, Asst. U.S. Atty. (argued), Gerard B. Schneller, Criminal Div., Fairview Heights, IL, for U.S.

Edward X. Clinton, Sr. (argued), Chicago, IL, for Gregory Lee Martin, Sr.

Before POSNER, Chief Judge, FLAUM and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

Defendant Gregory Lee Martin, Sr. was convicted of arson involving a building used in interstate commerce, in violation of 18 U.S.C. Sec. 844(i), and sentenced to fifty years imprisonment. Martin disputes federal jurisdiction over the arson charge, several evidentiary rulings, a jury instruction, and his sentence. We affirm his conviction but vacate his sentence and remand for resentencing.

I.

In the early morning of October 24, 1992, fire destroyed a two-story apartment building at 1414 Highland Avenue in Alton, Illinois. No one lived in the building at the time of the fire, although the building's last tenant, Mattie Alvioon, who had ceased paying rent in August, still had personal property there. As fire fighters fought the blaze, the south wall of the building collapsed. Three fire fighters were trapped under the fallen wall; two of them died.

Officers from the Alton Police Department began investigating the fire that same morning. At about 4:00 a.m., almost one hour after the fire fighters had been dispatched to the scene, Officer Anthony Ventimiglia interviewed the owner of the building, defendant Gregory Martin. Martin told Ventimiglia that he thought the fire might be an act of retaliation in response to his having informed on drug dealers in the area. He also mentioned a Mr. Smith whom he had evicted from the premises and who might harbor a grudge.

Later that same day, police officers took Martin to the Alton police department and introduced him Agent Tom Lane from the Bureau of Alcohol, Tobacco and Firearms. Although Martin and Lane dispute what happened, Martin apparently agreed to make some sort of statement or sign some sort of waiver and then changed his mind and decided to do nothing until he had consulted with an attorney. In any event, Martin left the police station without having said or done anything.

On October 28, 1992, Alton police officers interviewed Delanney Gordon. Gordon lived across the street from the burned residence in an apartment also owned by Martin and had done some repair work for Martin. After being advised of his rights, Gordon admitted having set the October 24 fire for Martin, saying he was confessing because he felt guilty about the deaths of the fire fighters. Gordon maintained that Martin had offered him a reduction in his rent if he would destroy the building. Gordon asserted that Martin instructed him to light a candle in a hamper in the basement of the 1414 Highland building and that he did so at about 2:00 a.m. on the morning of the fire. Gordon also indicated that he noticed a strange and irritating odor as he lit the candle. Police videotaped the entire confession.

After confessing, Gordon permitted the police to search his apartment. Gordon also agreed to wear a tape recorder and transmitter and speak to Martin. On the evening of October 28, Gordon went to Martin's home and asked him for money to leave town; Gordon told Martin that the police had interviewed him and he needed to flee. Gordon also expressed remorse over the dead fire fighters. Martin replied that Gordon did not have to worry because Martin wanted to confess everything and do so quickly and without a fight. Although the tape of this conversation later proved inaudible, at least five law enforcement officers heard the transmitted conversation.

Within minutes after Gordon left, Martin called the Alton Police Department and asked to speak to a detective working on the Highland building arson. The dispatcher who answered the call did not connect Martin with anyone but did take Martin's name and address. Detective Hayes arrived at Martin's home shortly thereafter and arrested Martin. Hayes then turned Martin over to a uniformed officer who had arrived at Martin's home shortly after Hayes. The officer transported Martin to the police station.

At the station, Martin made a number of incriminating statements to several police officers. First, according to Hayes, Martin stated during processing that he wanted to make a full confession but wanted to have a newspaper reporter present. Hayes responded that he could not talk to Martin for legal reasons, whereupon Martin said that he wanted his attorney too so that he could make a full confession with him present in order to "make a deal." Hayes told Martin that there would be no deals. Ventimiglia also was present during this conversation. Second, while Officer Daniel Geil fingerprinted Martin, Martin told him that "I hurt a lot of people with this fire, I know I did. I have a lot of respect for firemen. I even wanted to be a fireman at one time." Finally, Martin made incriminating statements to Officer James Hessel, whom Martin knew and whom he chanced upon at the station. Martin told Hessel that he had "messed up" and admitted being tied to the Highland Avenue fire, although he denied actually setting it. ¹

While in jail prior to trial, Martin again allegedly confessed to Brad Flowers, who resided in the adjoining cell while awaiting his own trial on weapons charges. Flowers testified that Martin told him he was having money problems and had the Highland Avenue building burned because of them. According to Flowers, Martin saturated the building with a flammable liquid and then arranged for Gordon to start the fire.

Following a three-day trial, a jury found Martin guilty of arson. Pursuant to a procedure no longer required, the court then charged the jury with determining whether to recommend life imprisonment for Martin. After heated deliberations in which two jurors almost came to blows, the jury decided not to recommend life imprisonment. The judge then sentenced Martin to a term of fifty years. Martin appealed both his conviction and sentence.

II.

Martin raises a number of challenges to his arson conviction. First, he argues that the government failed to prove an interstate commerce connection with the destroyed building. Second, he asserts that the government improperly amended his indictment in the jury instructions. Third, he contends that the district court erroneously allowed the government to impeach him with his testimony regarding the police's failure to provide him with warnings consistent with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Fourth, he claims the court committed reversible error in allowing the government to impeach him with actual statements he made that were admittedly taken in violation of Miranda. Fifth, he maintains that the court erroneously allowed the government to introduce evidence of his conversation with Gordon on October 28, a conversation he claims was a custodial interrogation and prior to which he should have been warned. Sixth, he alleges that pre-trial publicity deprived him of his right to a fair trial and that the court should have moved the trial venue. Finally, he argues that the evidence against him was insufficient to justify his conviction. We address each in turn.

A.

Martin first argues that his conviction for arson of a private residence exceeds the statutory authority granted by 18 U.S.C. Sec. 844(i). Martin contends that the apartment at 1414 Highland was neither used in nor affected interstate commerce, as required by Sec. 844(i), because at the time of the fire, the building had been unrented for three months and had no utilities. He asserts, therefore, that the case should be dismissed for lack of jurisdiction.

Section 844(i) makes arson of any building or property used in interstate commerce or in any activity affecting interstate commerce a federal crime, providing:

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 person property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce, shall be imprisoned for not more than ten years or fined not more than $10,000.00, or both.

(emphasis added). Section 844(i) applies to both businesses and residences, see United States v. Stillwell, 900 F.2d 1104, 1107-08 (7th Cir.), cert. denied, 498 U.S. 838, 111 S.Ct. 111, 112 L.Ed.2d 81 (1990), and reaches arson of any property having even a de minimis connection to interstate commerce. United States v. Menzer, 29 F.3d 1223, 1230 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 515, 130 L.Ed.2d 422 (1994); Stillwell, 900 F.2d at 1110; see also United States v. Ryan, 41 F.3d 361, 364 (8th Cir.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995); United States v. Mayberry, 896 F.2d 1117, 1120 (8th Cir.1990); United States v. Voss, 787 F.2d 393, 397 (8th Cir.), cert. denied, 479 U.S. 888, 107 S.Ct. 286, 93 L.Ed.2d 261 (1986). The Supreme Court has read Sec. 844(i)'s "used" language expansively, concluding that "the reference [in Sec. 844(i) ] to '... used in ... any activity affecting interstate commerce' expresses an intent by Congress to exercise its full power under the commerce clause." Russell v. United States, 471 U.S. 858, 859, 105 S.Ct. 2455, 2456, 85 L.Ed.2d 829 (1985).

The Court also held in Russell that rental properties satisfy this connection and constitute a sufficient nexus to interstate commerce for federal jurisdiction to attach under 18 U.S.C. Sec. 844(i). In Russell, Russell was convicted of attempting to burn a two-unit apartment building he owned. The Supreme Court rejected Russell's argument that the building was not a business or commercial property involved in interstate...