U.S. v. Dascenzo, 96-3621

• Decision Date: 31 August 1998
• Docket Number: No. 96-3621,96-3621
• Citation: 152 F.3d 1300
• Parties: 12 Fla. L. Weekly Fed. C 22 UNITED STATES of America, Plaintiff-Appellee, v. Christopher DASCENZO a.k.a. Christopher Marcus Dascenzo, Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1300

152 F.3d 1300

12 Fla. L. Weekly Fed. C 22

UNITED STATES of America, Plaintiff-Appellee, v. Christopher DASCENZO a.k.a. Christopher Marcus Dascenzo Defendant-Appellant.

No. 96-3621

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Aug. 31, 1998.

Rehearing Denied Nov. 6, 1998.

Marcia G. Shein, Atlanta, GA, for Defendant-Appellant.

P. Michael Patterson, Edwin F. Knight, Asst. U.S. Atty., Pensacola, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before EDMONDSON, BLACK and HULL, Circuit Judges.

EDMONDSON, Circuit Judge:

Defendant-Appellant Christopher Marcus Dascenzo appeals his convictions for various firearms and explosives offenses, violating 18 U.S.C. § 844(i), 18 U.S.C. § 924(c)(1), and 26 U.S.C. §§ 5841, 5845, 5861(d), and 5871. Only Defendant's challenges about section 844(i) warrant discussion. ¹ No reversible error has been shown; we affirm.

The government introduced evidence that three pipe bombs, comprising the destructive device, were placed by Defendant outside the front gate (near the front door) of a home. One of the three bombs detonated while the bomb squad attempted to render it safe. The resulting explosion destroyed the fence, cracked the concrete area where it detonated, and sent fragments through the wall of the house. The home was used as a rental property and was being rented when the bomb was found.

Section 844(i) makes it a crime maliciously to damage or destroy, or attempt to damage or destroy, by an explosive, a building "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." Defendant claims that the government failed to present sufficient evidence that the home damaged by the pipe bomb had a sufficient effect on interstate commerce. ²

In Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 2457, 85 L.Ed.2d 829 (1985), the Supreme Court was faced with an issue of statutory construction. In the course of construing section 844(i), the Court took into account that Congress wished to use its full powers under the Commerce Clause. The Court concluded that Congress, in enacting section 844(i), "intended to protect all business property, as well as some additional property that might not fit that description, but perhaps not every private home." Deciding that a two-unit apartment used as a rental property falls within section 844(i), the Supreme Court wrote:

By its terms, however, the statute only applies to property that is "used" in an "activity" that affects commerce. The rental of real estate is unquestionably such an activity.... [T]he local rental of an apartment unit is merely an element of a much broader commercial market in rental properties. The congressional 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.

Because the government in the present case introduced evidence from which a rational trier of fact could conclude that the building where the bomb was placed was used as a rental property, Russell points to an affirmance. Defendant argues, however, that United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), controls this case. He says that after Lopez a "substantial effect" on interstate commerce must be proved for the property involved in each criminal act.

In Lopez, the Supreme Court was confronted with a facial challenge to the constitutionality of the Gun-Free School Zones Act. Thus, by relying on Lopez, Defendant's challenge to the sufficiency of the evidence must necessarily include a constitutional challenge: Defendant, in effect, challenges the statute's constitutionality as applied to him. ³ As such, this constitutional challenge is a question of law to be decided by the court. See United States v. Hicks, 106 F.3d 187, 190 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2425, 138 L.Ed.2d 188 (1997). And, cases discussing Lopez and relying upon its rationale are necessarily addressing the constitutionality of the statute; Lopez establishes no rules of statutory construction.

I. Constitutionality Under Lopez

Lopez was a constitutional law decision. It struck down the Gun-Free School Zones Act, 18 U.S.C. § 992(q)(1)(A), which criminalized the knowing possession of a firearm in a school zone. Lopez identified three broad categories of activities which Congress could regulate pursuant to the Commerce Clause (i) the use of channels of interstate commerce; (ii) the instrumentalities of interstate commerce or persons or things in interstate commerce; and (iii) activities having a substantial relation to interstate commerce. ⁴ Id., 115 S.Ct. at 1629-30. Analyzing section 992(q) under the third category, the Court concluded that the activity regulated must "substantially affect" interstate commerce to be within Congress's power to regulate. Id. at 1630. The Supreme Court concluded that Congress exceeded its Commerce Clause authority in section 922(q) because the statute "neither regulates a commercial activity nor contains a requirement that the possession [of the gun] be connected in any way to interstate commerce." Id. at 1626 (emphasis added).

Nothing in Lopez challenges Congress's power to regulate conduct, including non-economic conduct (such as arson), if Congress has a rational basis to determine that the criminalized conduct substantially affects interstate or foreign commerce. See id. at 1630. Post-Lopez challenges to the facial constitutionality of section 844(i) have been rejected, apparently concluding that Congress did have a rational basis for determining that the arson of property used in commerce or in an activity affecting interstate commerce substantially affects interstate or foreign commerce. See United States v. Grimes, 142 F.3d 1342, 1346 (11th Cir.1998) (collecting cases).

Also, in contrast to the Gun-Free School Zones Act, the federal arson statute, section 844(i), does contain an element expressly requiring connection to commerce, a connection like that to which Lopez alluded. By its very terms, section 844(i) is limited to property "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." So, it would seem that this statutory element removes section 844(i) from the constraints of the "substantial effect" standard established in Lopez. Lopez 's "substantial effect" standard has been said to be inapplicable to other statutes with express effect-on-commerce requirements similar to section 844(i). ⁵ See United States v. Castleberry, 116 F.3d 1384, 1387 (11th Cir.1997); United States v. Chisholm, 105 F.3d 1357, 1358 n. 3 (11th Cir.1997); United States v. McAllister, 77 F.3d 387, 390 (11th Cir.1996); see also United States v. Jackson, 111 F.3d 101 (11th Cir.1997); Cheffer v. Reno, 55 F.3d 1517 (11th Cir.1995).

But to support the claim that constitutionally insufficient evidence existed to prosecute him under section 844(i), Defendant cites, in addition to Lopez, this court's decision in United States v. Denalli, 73 F.3d 328 (11th Cir.), modified, 90 F.3d 444 (11th Cir.1996). In Denalli, the defendant's conviction under section 844(i) was reversed because the government proved no substantial effect of the activity on interstate commerce: Denalli involved the arson of a private home occupied by its owners.

The decision in Denalli rested on the panel's application of Lopez. And Denalli seems to have read Lopez to impose--for constitutional law purposes--an additional burden on the government when enforcing legislation founded on Congress's authority to regulate activities that substantially affect interstate commerce: the burden to establish that the property underlying each case was used in an activity that substantially affects interstate commerce.

We doubt Lopez requires this additional burden for statutes--like section 844(i)--containing an express requirement that the crime or the property involved in the crime be connected in some way to interstate commerce. ⁶ See Lopez, 115 S.Ct. at 1626. Addressing other statutes with similar requirements as section 844(i) that an effect on commerce exist, this circuit has consistently, except perhaps in Denalli, considered Lopez inapplicable: Lopez does not affect the constitutionality of statutes which expressly require an effect on commerce as an element of the crime. See, e.g., Castleberry, 116 F.3d at 1387; Jackson, 111 F.3d at 101; Chisholm, 105 F.3d at 1358 n. 3; McAllister, 77 F.3d at 390; see also Cheffer, 55 F.3d at 1520.

In Denalli, the court required, before application of section 844(i) to the defendant would be constitutional, a substantial effect on interstate commerce by the criminal act at issue: arson of a private home occupied by its owners. ⁷ Subsequent section 844(i) cases have acknowledged (but questioned) Denalli 's expansive application of the "substantial effect" standard. See, e.g., United States v. Viscome, 144 F.3d 1365, 1369 n. 9 (11th Cir.1998). We question it, too.

Most important, Denalli dealt with a specific set of facts: a purely private residence occupied by its owners. And the decision was that the facts of Denalli, as a matter of constitutional law, could not support a prosecution under section 844(i). That decision may be correct. ⁸ But whatever our view may be on its correctness, we are bound by the decision. So, in like cases, we will follow it to make sure that like cases have a like result. But the case now before us is different.

Even under Denalli 's "substantial effect" standard, section 844(i) was constitutional as applied to Defendant in the case before us. Our case presents a different factual setting than Denalli: here, the arson of rental property. And, rental property, in the aggregate, has a substantial effect on interstate commerce. See generally Russell, 105 S.Ct. at 2457 ("[T]he local rental of an apartment...