U.S. v. Corona

Decision Date12 March 1997
Docket NumberNo. 96-30238,96-30238
Citation108 F.3d 565
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph CORONA, III; Lindsey McDonald, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Michele Annette Horn, Stephen A. Higginson, Assistant U.S. Attorney, New Orleans, LA, for Plaintiff-Appellee.

Veronica A. Collins, Federal Public Defender's Office, New Orleans, LA, for Defendant-Appellant.

Lindsey McDonald, Fort Worth, TX, pro se.

Appeals from the United States District Court for the Eastern District of Louisiana.



These federal arson convictions raise primarily Commerce Clause and double jeopardy concerns. We conclude that the convictions are within Congress's commerce power. But we find that imposing separate sentences for arson, conspiracy to commit arson, and "using fire to commit conspiracy to commit arson" violated the Double Jeopardy Clause. We vacate the sentences and remand for resentencing.


In February of 1992, Joseph Corona, III, bought a two-story residential structure at 1637 Polymnia Street in New Orleans for $29,000. He insured the house for $45,000, assigned title to the property to his mother, and made monthly payments of around $450 on her behalf to the previous owner. His plan was to renovate the building and turn it into a bed-and-breakfast or a youth hostel. But that would require special permission from the city, which Corona was having trouble obtaining. Along with two acquaintances, V.J. Stock and Lindsey McDonald, Corona undertook sporadic renovations at a total cost of between $15,000 and $20,000.

By the beginning of 1995, Corona turned sour on the project. Twice he offered to sell the building to James Hudson, once in exchange for a taxi number worth about $25,000. Two days before the fire, when Hudson declined the second offer, Corona told Hudson: "I guess I'll do what I got to do." Wayne Conino, a former roommate, testified that Corona announced that he wanted "out of the house." Corona asked his father-in-law how to set a fire without being caught. Toward the end of 1994, Corona also expressed his economic hardship to his mother-in-law, who testified that "for quite awhile, every once in awhile, he would mention that he was going to have to burn the house."

On February 6, 1995, he did just that. He picked up McDonald and Stock in a New Orleans suburb and dropped them off a few blocks from the house. Suzanne Guidroz, a United Cab telephone operator, was visiting with her boyfriend at the nearby United Cab dispatching station and could see the house through a window. She testified that Stock and McDonald made many trips up and down an exterior staircase. At one point, she watched McDonald use an outdoor pay phone just outside of the United Cab building. When the two men carried a mattress down the stairs and deposited it on the first floor, she brought the unusual behavior to the attention of a nearby worker. Less than a minute later, the house virtually exploded. Guidroz called 911, reported the fire, and explained that she thought that two men were still in the building. But apparently McDonald and Stock had already fled the scene.

The flames quickly spread to the "shack," a warehouse at 1722 Carondelet Street owned by Mario Greco, a United Cab employee. Greco stored taxis in the building and rented part of it out to United Cab for $600 per month. The shack contained an employee break room with vending machines, a television, and tables and chairs where employees played cards. United Cab furnished the building in part because workers needed a safe place to relax in a relatively dangerous neighborhood. Only a few feet separated Corona's house from the shack, which was in flames even before firefighters arrived. More than a dozen people, including a dispatcher and several cab drivers, had to be evacuated from the warehouse in the seven-alarm fire. The shack's roof collapsed, and one of the cabs stored there was destroyed.

McDonald and Stock returned to the house around 5:00 A.M., while investigators were sifting through the remains of the house and the shack. Guidroz was still at the scene. She immediately pointed the men out to an investigator. McDonald admitted at trial that he lied to law enforcement officers when he told them that he knew nothing about the fire. Later that morning, Corona gave McDonald a ride back to the suburbs and provided him with a place to sleep. McDonald also admitted at trial that he lied after his arrest when he told an investigator that Stock had accidentally caught a blanket on fire, was unable to put it out, and left the house to meet Corona and McDonald in the French Quarter.

A grand jury indicted each of the three men on three counts: conspiracy to commit arson (18 U.S.C. § 371), maliciously burning buildings used in or affecting interstate commerce (18 U.S.C. § 844(i)), and, as the indictment put it, "knowingly us[ing] fire to commit conspiracy to commit arson as alleged in Count 1" (18 U.S.C. § 844(h)(1)). Stock became a fugitive and was not arrested until September of 1996. Corona and McDonald stood trial.

Much of the government's case consisted of the testimony of experts who explained that the fire fit the profile of arson. An ATF agent described how investigators discovered that the fire began in three separate places. A burned mattress was on the ground floor. A city investigator told the jury that he had taken a trained and certified dog into the burned structure and that the dog had detected traces of accelerants in the three places where the fire began. An expert using a gas chromatograph discovered gasoline on a blanket in the house. Another ATF agent found burning patterns that suggested that someone had poured accelerants. According to these experts, the fact that the fire's origins were at the bottom of the structure and the fact that the fire spread so quickly indicated that it was intentional.

The jury unanimously convicted Corona and McDonald on all three counts after four days of trial. It found "that the buildings were being used in interstate commerce or in an activity substantially affecting interstate commerce." The district court denied their motion for dismissal on the grounds that the two buildings did not have the requisite connections to interstate commerce. 934 F.Supp. 740 (E.D.La.1996). It gave oral reasons for denying their motion to dismiss on double jeopardy grounds. Corona received 41-month concurrent sentences on counts one and two and an additional mandatory 60-month sentence to run consecutively on count three. McDonald received concurrent 33-month sentences on counts one and two and a mandatory consecutive 60-month sentence on count three. Both defendants have appealed.


Corona and McDonald make an as-applied challenge to their convictions on all three counts by arguing that they exceed Congress's commerce power. According to the defendants, neither of the burned buildings was used in or had a substantial effect on interstate commerce. Because the fire spread to the United Cab warehouse, we do not find this argument persuasive.

In rejecting the defendants' Commerce Clause argument, the district court held that the law permits a jury to find that the government proved that the house on Polymnia Street had the required nexus to interstate commerce. It relied primarily on Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985), and United States v. Patterson, 792 F.2d 531 (5th Cir.), cert. denied, 479 U.S. 865, 107 S.Ct. 220, 93 L.Ed.2d 149 (1986), for the proposition that the commerce power extends to the destruction of rental property--including property being prepared for rental--whether or not the rental activity is exclusively intrastate.

We are not confident that Congress possesses such broad powers. The defendant in Russell attempted to burn down a two-unit apartment building and was convicted under § 844(i). The Court upheld the conviction because the rental of real estate is part of commerce. It did not require a showing of a specific connection to interstate commerce because "Congress intended to exercise its full power to protect 'business property' " and can protect property involved in exclusively intrastate business as part of its regulation of the interstate rental market. Russell, 471 U.S. at 860-61, 105 S.Ct. at 2456-57. In contrast to the property in Russell, the Polymnia Street house was neither rented nor on the rental market. It is not clear that Corona ever could have realized his aspirations of creating a youth hostel or a block of apartments. The property was hardly different from a private home, which the Russell Court cautioned may not have been within Congress's intent in passing § 844(i). Id. at 862, 105 S.Ct. at 2457.

Patterson involved a fire that destroyed twelve units at a 78-unit condominium complex that was under construction. We upheld the conviction under § 844(i) in spite of the fact that none of the units were yet for sale. But we noted that the interstate commerce requirement was satisfied because the builder's "activity was a significant business venture involving out-of-state partners and financing by an out-of-state lender." Patterson, 792 F.2d at 536. Again, the Polymnia Street property bears little resemblance to the partially-completed condominium complex in Patterson. There has been no mention of out-of-state financiers or prospective tenants. The sheer size of the Patterson project made its likely effect on interstate commerce obvious both for investors and for potential purchasers. The commercial dimensions of Corona's project were modest at best, and the interstate component of his commercial plans was trifling.

Furthermore, the analysis in Patterson lost some of its vitality when the Supreme Court announced that "the proper test requires an...

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