U.S. v. Corum, 03-2497.

• Decision Date: 05 April 2004
• Docket Number: No. 03-2497.,03-2497.
• Citation: 362 F.3d 489
• Parties: UNITED STATES of America, Appellee, v. Gary Sigmund CORUM, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

362 F.3d 489

UNITED STATES of America, Appellee, v. Gary Sigmund CORUM, Appellant.

No. 03-2497.

United States Court of Appeals, Eighth Circuit.

Submitted: February 9, 2004.

Filed: April 5, 2004.

Rehearing and Rehearing En Banc Denied May 18, 2004.

COPYRIGHT MATERIAL OMITTED

Virginia Guadalupe Villa, argued, Federal Public Defender, Minneapolis, MN, for appellant.

Linda Thome, argued, D.O.J., Washington, D.C., for appellee.

Before RILEY and RICHARD S. ARNOLD, Circuit Judges, and HOVLAND¹ District Court Judge.

HOVLAND, District Judge.

Gary Corum appeals his conviction of three counts of intentionally obstructing or attempting to obstruct the free exercise of religious beliefs by threat of force in violation of 18 U.S.C. § 247(a)(2), and three counts of using a telephone to threaten to injure members or damage or destroy property of three synagogues in violation of 18 U.S.C. § 844(e). For the reasons stated below, we affirm.

I. FACTUAL BACKGROUND

On July 28, 2001, Gary Corum, a Minnesota resident, left threatening messages on the voice mail systems of three synagogues in the Twin Cities area. The voice messages threatened the use of explosives, fire, and/or a dangerous weapon to burn down or blow up the synagogues. The messages also threatened to harm synagogue members. In the first telephone call, made to the Bais Yaakov School, housed in the Bais Yisroel Synagogue building in St. Louis Park, Minnesota, Corum said, "Listen there little Jewish gal. This is the White Aryan People's Party. We're gonna blow your fucking synagogue up this coming week and send you fuckers to the gas chambers. So good luck in trying to protect your fucking synagogues from the Aryan race. Heil Hitler!" In the second call, made to the Bet Shalom Temple in Hopkins, Minnesota, Corum threatened to burn the synagogue and said, "Listen my Jewish Zionist friends, we're tired of playing games with you. We are going to take over the planet. You're going into gas chambers. We will burn down your synagogue this coming week; this is not a threat. Heil Hitler." In the third call, made to the Mount Zion Temple in St. Paul, Minnesota, Corum said, "Okay listen you fucking Jews. You crucified Christ once, you're not going to pull a stunt again. We're putting (unintelligible) gas chambers (unintelligible) quickly. This week the (unintelligible) synagogue is going up in smoke and dynamite. Heil Hitler!" Upon receipt of the threats, the synagogues immediately contacted the police and then proceeded to review their respective security procedures. Bet Shalom Temple experienced a temporary drop in attendance.

Corum was subsequently indicted by a federal grand jury for six violations of federal law. Counts One through Three of the indictment charged Corum with "intentionally obstruct[ing] and attempt[ing] to obstruct, under circumstances in and affecting interstate commerce, by threat of force, the enjoyment and free exercise of religious beliefs" of synagogue members in violation of the Church Arson Prevention Act, 18 U.S.C. §§ 247(a)(2). Counts Four through Six charged Corum with using a telephone to threaten to injure members or damage or destroy property of the aforementioned synagogues in violation of 18 U.S.C. § 844(e).

Corum filed pretrial motions to dismiss the indictment, asserting that the Church Arson Prevention Act violated the First Amendment's Establishment Clause, that 18 U.S.C. § 844(e) as applied to him was unconstitutional, and that the indictment failed to allege a sufficient nexus with interstate commerce. Following a hearing, the magistrate judge² issued a report and recommended the denial of Corum's motions. The district court³ adopted the magistrate judge's Report and Recommendation and denied Corum's motions. Applying the three-part test set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the district court concluded Sections 247 and 844(e) were constitutional. In addition, the district court concluded that the indictment contained a sufficient factual basis to satisfy the interstate commerce elements of the Church Arson Prevention Act and 18 U.S.C. § 844(e).

The jury found Corum guilty on all counts. Following his conviction, Corum moved for a judgment of acquittal on the grounds the evidence presented at trial was insufficient to satisfy the interstate commerce elements of the Church Arson Prevention Act and 18 U.S.C. § 844(e). Specifically, Corum asserted the Church Arson Prevention Act and Section 844(e) were unconstitutional, the government had failed to meet its burden of proving beyond a reasonable doubt that the offenses were in or affected interstate commerce, and the threats were not conveyed through an instrumentality of interstate commerce. The district court denied Corum's motion. The district court acknowledged the government had the burden of demonstrating an affect on interstate commerce, but added the government was not required to prove that the affect was substantial or that anyone's rights had actually been obstructed. The district court also recognized the telephone used by Corum was an instrumentality of interstate commerce despite the fact that it was used to place intrastate calls.

II. LEGAL ANALYSIS

A. 18 U.S.C. § 844(e)

Corum argues his convictions under 18 U.S.C. § 844(e) should be set aside either because the Government failed to prove his conduct had an affect on interstate commerce or because 18 U.S.C. § 844(e), as applied in this case, is unconstitutional under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The Government responds by asserting that the evidence was sufficient to satisfy the interstate commerce element of 18 U.S.C. § 844(e) and that the application of 18 U.S.C. § 844(e) to Corum's conduct is within Congress's Commerce Clause power. We will review Corum's sufficiency of the evidence argument first.

"We review the sufficiency of the evidence de novo." United States v. Cuervo, 354 F.3d 969, 984 (8th Cir.2004). "Following conviction, we view the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences that support the verdict." Id.

Corum was charged with and convicted of three violations of 18 U.S.C. § 844(e), which provides in part:

Whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate ... commerce, or in or affecting interstate ... commerce, willfully makes any threat, ... concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, ..., or other real or personal property by means of fire or an explosive shall be imprisoned for not more than 10 years or fined under this title, or both.

Corum asserts the Government failed to satisfy the interstate commerce requirement of Section 844(e) because the evidence established the calls were local, did not cross any state lines, and did not involve commercial transactions. Corum relies on cases wherein the defendants were charged with violating 18 U.S.C. § 844(i) and contends the Government is required to show the telephone was actually used to affect interstate or foreign commerce.

The textual difference in the two subdivisions is fatal to Corum's argument. 18 U.S.C. § 844(i) prohibits the malicious damage or destruction by means of fire or an explosive of "any building, vehicle, or other real or personal property used in interstate commerce." 18 U.S.C. § 844(i). The two subdivisions rely on different types of conduct to establish the required interstate nexus. In general terms, in order to prove a violation of 18 U.S.C. § 844(i), the Government must show damage to property used in interstate commerce; whereas to prove a violation of 18 U.S.C. § 844(e), the Government must show an instrument of interstate commerce was used to communicate a threat. The plain language of 18 U.S.C. § 844(e) does not require proof of interstate commerce. Section 844(e) requires no additional proof of an interstate nexus beyond a showing that Corum used an "instrument of interstate commerce," namely a telephone, to make his threat.

It is well-established that telephones, even when used intrastate, are instrumentalities of interstate commerce. See United States v. Marek, 238 F.3d 310, 319, n. 35 (5th Cir.2001); United States v. Gilbert, 181 F.3d 152, 158 (1st Cir.1999); United States v. Weathers, 169 F.3d 336, 341 (6th Cir.), cert. denied, 528 U.S. 838, 120 S.Ct. 101, 145 L.Ed.2d 85 (1999); United States v. Clayton, 108 F.3d 1114, 1116-17 (9th Cir.), cert. denied, 522 U.S. 893, 118 S.Ct. 233, 139 L.Ed.2d 165 (1997). Both intrastate and interstate telephone communications are part of an aggregate telephonic system. There is no dispute Corum used a telephone to communicate the bomb threat. Corum's use of a telephone to make his threats, even if the calls were made intrastate, was sufficient to grant federal jurisdiction over his crime pursuant to Congress's power under the Commerce Clause. The intrastate use of a telephone to communicate a bomb threat is an activity that falls squarely within the explicit language of 18 U.S.C. § 844(e). Accordingly, when viewing the evidence in the light most favorable to the government, we hold there was sufficient evidence to satisfy the interstate commerce element of 18 U.S.C. § 844(e).

Corum also asserts that 18 U.S.C. § 844(e), as applied in this case, is unconstitutional under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). This Court reviews constitutional questions de novo. United States v. Koons, 300 F.3d 985, 990 (8th Cir.2002).

In United States v. Lopez, the United States Supreme Court identified three broad categories of activity that Congress could regulate under its Commerce Clause power.

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate...