U.S. v. Russell, 83-2580

• Decision Date: 25 July 1984
• Docket Number: No. 83-2580,83-2580
• Citation: 738 F.2d 825
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert RUSSELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 825

738 F.2d 825

UNITED STATES of America, Plaintiff-Appellee, v. Robert RUSSELL, Defendant-Appellant.

No. 83-2580.

United States Court of Appeals Seventh Circuit.

Argued March 26, 1984.

Decided June 27, 1984.

As Amended on Denial of Rehearing

July 25, 1984.

Julius Lucius Echeles, Chicago, Ill., for defendant-appellant.

Daniel A. DuPre, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellant.

Before BAUER, WOOD and ESCHBACH, Circuit Judges.

BAUER, Circuit Judge.

A federal grand jury indicted Defendant Robert Russell for attempting to damage and destroy by fire or explosive, in violation of 18 U.S.C. Sec. 844(i) (1982), ¹ a two-unit apartment building at 4530 South Union Street, Chicago, Illinois. The district court denied Russell's motion to dismiss for lack of federal jurisdiction. 563 F.Supp. 1085 (N.D.Ill.1983). The defendant was tried, convicted, and sentenced to ten years imprisonment. The defendant appeals on the grounds that the court lacked jurisdiction, that the evidence was insufficient to support his conviction, and that his sentence was improper. We affirm on each issue.

The district court held that the South Union Street property was within the ambit of Section 844(i) because "the creation of heat from natural gas originating out of state is an 'activity affecting interstate or foreign commerce.' " 563 F.Supp. at 1086. The defendant claims that the district court lacked jurisdiction because the building that he was accused of attempting to damage was residential property and Section 844(i) is inapplicable to residential buildings. The defendant relies principally on United States v. Mennuti, 639 F.2d 107 (2d Cir.1981), to support his contention. In Mennuti, the trial court dismissed an indictment which charged the defendant with the destruction of two single-family residences. The Second Circuit affirmed the dismissal, stating that the legislative history of Section 844(i) revealed that the section does not apply to "dwelling houses which were not being used for any commercial purpose at all." 639 F.2d at 111. The district court in the case at hand held that although the South Union Street property was used as a residential property the court had jurisdiction under Section 844(i) because of the "expansive interpretations of the language of Sec. 844(i)" that this court used in United States v. Sweet, 548 F.2d 198 (7th Cir.), cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1977). The district court expressly refused to apply Mennuti because it did "not announc[e] the law of this circuit." 563 F.Supp. at 1087.

We agree with the district court that Sweet sanctions an expansive reading of Section 844(i). In Sweet, the defendant was a tavern owner convicted under Section 844(i) for his role in the fire-bombing of a competing tavern. The fire destroyed the physical structure of the tavern and its stock of liquor and beer that had originated out of state but had been purchased locally through distributors. The defendant in Sweet argued that the tavern was not being used in an activity affecting interstate commerce. This court affirmed jurisdiction and concluded that "[t]he punishment in Sec. 844(i) of the unlawful use of explosives in an interstate activity, but which has an effect on interstate commerce although de minimis, is within the power of Congress to enact as an appropriate means to accomplish a legitimate end under the commerce power." 548 F.2d at 202.

We do not think that it is necessary in this case, however, to reject the more restrictive interpretation of Section 844(i) in Mennuti, and thus create a conflict with the Second Circuit, in order to uphold the district court's jurisdiction. The district court also stated that even "when conceding the propriety of the suggested limitations [imposed by Mennuti ] ..., [f]rom the perspective of the defendant, the building on South Union Street was very definitely 'business property' within the meaning of [Section 844(i) and its legislative history]." 563 F.Supp. at 1088. The facts in this case amply support this finding. The South Union Street apartment building was one of four pieces of property that Russell owned and rented to tenants. Russell's income tax returns from 1976 through 1982 demonstrated that Russell treated these properties as income property for which he claimed business deductions for depreciation and expenses. These properties also were covered by business fire insurance policies, in contrast to the defendant's own residence which he covered by a homeowner's policy limited to owner-occupied premises. At the time of the incident in question, Russell lived in neither unit of the South Union Street property. The district court's jurisdiction thus could be based on the fact that this property was business or commercial property under ...