U.S. v. Gomez

• Decision Date: 02 July 1996
• Docket Number: No. 94-50372,94-50372
• Parties: 96 Cal. Daily Op. Serv. 4955, 96 Daily Journal D.A.R. 7973 UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel GOMEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1093

87 F.3d 1093

96 Cal. Daily Op. Serv. 4955, 96 Daily Journal

D.A.R. 7973

UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel GOMEZ, Defendant-Appellant.

No. 94-50372.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 14, 1995.

Decided July 2, 1996.

Michael J. Treman, Santa Barbara, California, for defendant-appellant.

Gregory W. Jessner and Daniel P. Collins, Assistant United States Attorneys, Los Angeles, California, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, A. Wallace Tashima, District Judge, Presiding. D.C. No. CR-94-00045-AWT-2.

Before: HALL and NOONAN, Circuit Judges, and SHUBB, ^* District Judge.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Miguel Angel Gomez was convicted of arson and using a firearm in relation to a crime of violence, 18 U.S.C. §§ 844(i) and 924(c), and possession of a destructive device, 26 U.S.C. § 5861(d). In this appeal, we are asked to decide whether Gomez's arson conviction should be reversed because the prosecution did not sufficiently prove that the building Gomez damaged substantially affected interstate commerce, a required element of the offense. We conclude that the government presented sufficient evidence to satisfy the interstate commerce element. We therefore affirm. ¹

I

Gomez set fire to a six-unit apartment complex with a Molotov cocktail, and he was convicted of arson under 18 U.S.C. § 844(i), which provides:

Whoever maliciously damages or destroys ... 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 more than twenty years....

(emphasis added). He was sentenced to ten years for the arson charge, and twenty years for using a destructive device in relation to a crime of violence. There was no testimony at trial as to any interstate commerce connection, and Gomez contends that the apartment building he damaged did not sufficiently affect interstate commerce to allow federal court jurisdiction over this claim.

The district court instructed the jury that a "residential apartment building with multiple rental units is a building in interstate commerce." This instruction is based on Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985), in which the Supreme Court held that, for purposes of section 844(i), rental property is unquestionably property that is used in an activity affecting interstate commerce. Id. at 862, 105 S.Ct. at 2457. In reaching this conclusion, the Court recognized that "the local rental of an apartment unit is merely an element of a much broader commercial market in rental properties." Id. Therefore, Congress's "power to regulate the class of activities that constitute the rental market for real estate includes the power to regulate individual activity within that class." Id.

Gomez argues that the Supreme Court's decision in United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), reinterpreted the Court's commerce clause jurisprudence, and thereby undermined Russell 's per se rule that all rental property affects commerce sufficiently enough to warrant federal jurisdiction under section 844(i). However, we find nothing in Lopez to suggest that the Court intended to overrule Russell, nor does Lopez undermine Russell 's reasoning or its holding.

In Lopez the Supreme Court struck down a federal statute that criminalized knowing possession of a firearm in a school zone, 18 U.S.C. § 922(q), because Congress exceeded its powers under the Commerce Clause when it enacted the statute. Lopez, --- U.S. at ---- - ----, 115 S.Ct. at 1630-31. In reaching this conclusion, the Court identified three broad categories of activities that Congress may regulate under its commerce power:

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

Id. at ---- - ----, 115 S.Ct. at 1629-30 (citations omitted). The statute challenged in Lopez clearly fit into the third category, which includes regulations of activities that affect commerce indirectly, but substantially. The Court further analyzed the requirements of category three, distinguishing statutes that regulate intrastate economic or commercial activity, from those that regulate noneconomic activity. The effect on interstate commerce of statutes that regulate economic or commercial activity must be considered in the aggregate. Thus, even if a single instance of the regulated activity has only a trivial effect on commerce, if the class of activities regulated substantially affects commerce in the aggregate, then the conduct falls within Congress's commerce power. See, e.g., Wickard v. Filburn, 317 U.S. 111, 127-28, 63 S.Ct. 82, 90-91, 87 L.Ed. 122 (1942) (holding that a single farmer's wheat production for his own personal consumption, when considered in the aggregate, affects the interstate wheat market).

Unlike the arson statute at issue in the current case, the statute in Lopez had no jurisdictional element that required an explicit connection with or effect on interstate commerce. Here, Gomez challenges the application of the arson statute's jurisdictional element as applied to his conduct. ² Because the statute in Lopez did not have an express jurisdictional limitation, the Supreme Court left open the question of what effect such a limitation would have on the commerce clause analysis. Lopez, --- U.S. at ----, 115 S.Ct. at 1631. We addressed that question in United States v. Pappadopoulos, 64 F.3d 522 (9th Cir.1995), and held that Lopez 's analysis also applies when determining whether the government has satisfied an express jurisdictional limitation in a criminal statute. Id. at 527. But see United States v. Flaherty, 76 F.3d 967 (8th Cir.1996) ("we are not persuaded that Lopez would apply" here, because the arson statute contains a jurisdictional element); United States v. Sherlin, 67 F.3d 1208, 1213-14 (6th Cir.1995) (distinguishing Lopez because the arson statute, section 844(i), has a jurisdictional element), cert. denied, --- U.S. ----, 116 S.Ct. 795, 133 L.Ed.2d 744 (1996).

In Pappadopoulos we reversed a conviction under section 844(i) for arson of a private residence, because the government failed to prove that the residence was used in an activity that substantially affected commerce. Id. at 527 (holding that proof that the residence received natural gas from out-of-state sources was "insufficient as a matter of law to confer federal jurisdiction over the [arson of a private residence]."); see also United States v. Denalli, 73 F.3d 328, 331 (11th Cir.1996) (post-Lopez case holding that evidence that the homeowner occasionally worked at home was not sufficient to establish that arson of a private residence substantially affected interstate commerce). We determined that section 844(i) falls under Lopez category three, which applies to statutes that regulate conduct that indirectly affects interstate commerce, and held that:

where Congress seeks to regulate a purely intrastate noncommercial activity that has traditionally been subject to exclusive regulation by state or local government [such as arson], ... the government must satisfy the jurisdictional requirement by pointing to a "substantial" effect on or connection to interstate commerce.

Id. at 527. Therefore, to sustain Gomez's conviction, we must apply Lopez 's analysis, and find that the government has proven a substantial effect on interstate commerce.

Accordingly, under section 844(i) the government must prove that the property damaged substantially affected interstate commerce. Congress did not draft section 844(i) to reach every arson that has an interstate effect. Rather, it sought to reach only those arsons that damage or destroy property that had been "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." See United States v. Barone, 71 F.3d 1442, 1445 (9th Cir.1995). According to the plain language of the statute, the interstate commerce aspect of the crime is distinct from the arson--it depends solely on what the property had been used for (or whether the property was moving in interstate commerce). Even though arson is a crime that has traditionally been the responsibility of the states, section 844(i) allows federal jurisdiction over arson, but limits it to those instances involving property connected to interstate commerce. Therefore, the proper inquiry is whether section 844(i) as applied to the apartment building in this case regulates conduct that is commercial or economic in nature. We hold that it does.

The apartment building damaged in this case, unlike the private residence in Pappadopoulos, was used in an activity substantially affecting interstate commerce. As the Supreme Court held in Russell, an apartment building currently in use in the rental market is used in an activity affecting interstate commerce. See also Martin, 63 F.3d at 1427 (a post-Lopez decision that relies on Russell to hold that vacant rental property is used in an economic activity sufficient to satisfy section 844(i)'s jurisdictional element); Sherlin, 67 F.3d at 1213-14 (a post-Lopez decision that cites Russell with approval and holds that a college dorm satisfies section 844(i)'s jurisdictional element). A rental property is a commercial establishment, and is not substantially different than any other business. As applied to a rental property, then, ...