U.S. v. Hang Le-Thy Tran

• Citation: 433 F.3d 472
• Decision Date: 05 January 2006
• Docket Number: No. 04-1801.,04-1801.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. HANG LE-THY TRAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

433 F.3d 472

UNITED STATES of America, Plaintiff-Appellee, v. HANG LE-THY TRAN, Defendant-Appellant.

No. 04-1801.

United States Court of Appeals, Sixth Circuit.

Argued: November 9, 2005.

Decided and Filed: January 5, 2006.

COPYRIGHT MATERIAL OMITTED

ARGUED: Frank E. Stanley, Grand Rapids, Michigan, for Appellant. Timothy P. VerHey, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Frank E. Stanley, Grand Rapids, Michigan, for Appellant. Timothy P. VerHey, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: MERRITT, MOORE, and SUTTON, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

Defendant Hang Le-Thy Tran was convicted by a jury of two counts of aiding and abetting another to commit arson in violation of 18 U.S.C. § 844(i). Tran was sentenced by the district court to 72 months of imprisonment. She now appeals her conviction and her sentence. On appeal, Tran asserts that: (1) the district court erred in denying Tran's motion for judgment of acquittal on the grounds that the government did not prove the interstate commerce element of the offense; (2) the district court erred in denying her motion to sever counts; (3) the district court erred in denying her motions to suppress evidence seized during searches of her business and her mobile home; and (4) the sentence imposed by the district court violated the 6th Amendment. For the following reasons, we AFFIRM the district court's rulings below, except we VACATE the sentence of the district court and REMAND for re-sentencing consistent with the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I. BACKGROUND FACTS AND PROCEDURE

Defendant Hang Le-Thy Tran owned and operated two businesses, Mimi's Family Hair Care and Kimberly Beauty College, located in the suburbs of Grand Rapids, Michigan. On October 24, 2000, Mimi's Family Hair Care was damaged by a small fire in the rear room of the salon. The fire marshal concluded that the cause of the fire was arson, and all other causes were ruled out. The Michigan State Police Laboratory was unable to identify the flammable liquid used to ignite the fire, but there were acetone and several other flammable hair and nail care products in the salon. While investigating a second fire at Kimberly Beauty College, a detective with the Kentwood Police Department received a letter naming a suspect in the Mimi's Family Hair Care fire. The detective eventually located Hanh Ngo, a student at Kimberly Beauty College, who confessed to setting the fire at Mimi's Family Hair Care at the defendant's behest.

On March 24, 2002, Kimberly Beauty College was destroyed by fire, and an adjacent business suffered fire and smoke damage. The basement of Kimberly Beauty College escaped significant damage even though the fire completely destroyed the rest of the structure. The cause of the fire was determined to be arson, ignited through the use of a flammable liquid in conjunction with cotton, acting as a wick from the flammable liquid to other areas of the business. Acetone, a flammable liquid commonly used in beauty salons, was found in the basement of Kimberly Beauty College in unusually high quantities. The police were unable to identify the arsonist responsible for the fire that destroyed Kimberly Beauty College.

These offenses resulted in an indictment charging Tran with two counts of aiding and abetting another to commit arson in violation of 18 U.S.C. § 844(i). Count 1 of the indictment related to the fire at Mimi's Family Hair Care in Kentwood, Michigan, on October 24, 2000. Count 2 of the indictment arose out of the fire at Kimberly Beauty College in Wyoming, Michigan, on March 25, 2002. The case was tried by a jury on February 9, 2004, and following a five-day trial, the defendant was found guilty of both counts. Thereafter, the defendant filed a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, arguing that sufficient evidence was not presented by the government at trial to meet its burden of showing that Mimi's Family Hair Care and Kimberly Beauty College affected interstate commerce. The district court denied the motion. On June 9, 2004, the defendant was sentenced to 72 months in prison on each count, to be served concurrently. The defendant thereafter timely filed a notice of appeal.

II. INTERSTATE COMMERCE

Tran argues on appeal that the government failed to introduce sufficient evidence to support the verdict in this case. According to Tran, the government failed to prove that Mimi's Family Hair Care and Kimberly Beauty College affected interstate commerce, as it was required to do under Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). We review a district court's refusal to grant a motion for judgment of acquittal de novo. United States v. Kone, 307 F.3d 430, 433 (6th Cir. 2002). We may reverse the district court's decision only if, after viewing the facts in the light most favorable to the government, we determine that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

Title 18 U.S.C. § 844(i) provides for the imposition of federal criminal sanctions against any person who "maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or person property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." The statute thus encompasses the arson of "any building that is either used in interstate commerce or that is used in any activity affecting interstate commerce." United States v. Laton, 352 F.3d 286, 291 (6th Cir. 2003). We conclude that the district court did not err in denying the defendant's motion for judgment of acquittal because Mimi's Family Hair Care and Kimberly Beauty College were commercial rental properties and their destruction by means of fire satisfies § 844(i)'s requirement that the destroyed property be "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce."

This case is governed by 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 the arson of a two-unit apartment building that was used as rental property fell within the purview of 18 U.S.C. § 844(i). In so holding, the Court noted that, although § 844(i) "only applies to property that is `used' in an `activity' that affects commerce," "[t]he rental of real estate is unquestionably such an activity." Id. at 862, 105 S.Ct. 2455. As the Court explained, its determination that rental property satisfies the interstate commerce requirement did not depend "on the connection between the market for residential units and `the interstate movement of people'" because "the local rental of an apartment unit is merely an element of a much broader commercial market in rental properties." Id. In its analysis, the Court noted that the original version of the bill proposing § 844(i) required that the building be used "for business purposes," but that Congress deleted such language before enactment in response to House members who indicated that they thought the statute should protect schools, police stations, and churches. Id. at 860, 105 S.Ct. 2455; see also id. at 860-61 nn. 5-9, 105 S.Ct. 2455 (quoting the relevant legislative history). The Court read this legislative history to suggest "that Congress at least intended to protect all business property, as well as some additional property that might not fit that description, but perhaps not every private home." Id. at 862, 105 S.Ct. 2455. Because the apartments in the building were rented to tenants at the time of the fire, the Court concluded that the property was "being used in an activity affecting commerce." Id.

The Supreme Court's later ruling in Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), did not disturb the Court's holding in Russell that the arson statute applies to rental properties. In Jones, the Supreme Court held that § 844(i) does not apply to a private, owner-occupied residence where its only relationship to interstate commerce is the receipt of natural gas, a mortgage, or an insurance policy. Id. at 856, 120 S.Ct. 1904. The Court emphasized the "qualifying words `used in,'" which mandate that "the damaged or destroyed property must itself have been used in commerce or in an activity affecting commerce." Id. at 854, 120 S.Ct. 1904. It then outlined a two-part inquiry for assessing the applicability of 18 U.S.C. § 844(i), which requires an analysis of the "function of the building itself, and then a determination of whether that function affects interstate commerce." Id. at 854-55, 120 S.Ct. 1904. In its analysis, the Court reasoned that for a building to be used in an activity affecting interstate commerce requires "active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." Id. at 855, 120 S.Ct. 1904. The Jones Court did not purport to overrule Russell and distinguished its prior decision by pointing to the "dispositive fact" in Russell that the "[p]etitioner was renting his apartment building to tenants at the time he attempted to destroy it by fire." Id. at 853, 120 S.Ct. 1904.

In this case, there was sufficient evidence of an interstate commerce nexus to sustain the defendant's conviction for violating § 844(i). Specifically, the evidence presented at trial established that the two buildings damaged or destroyed by fire were commercial rental properties. During the trial, Tom Wiarda testified that Bretwood Centre, the owner of Bretwood Mall Shopping Center, rented 1,715 square feet of its building to Tran for the purpose of operating Mimi's Family Hair Care....