U.S. v. Hersom

• Decision Date: 03 December 2009
• Docket Number: No. 07-2401.,07-2401.
• Citation: 588 F.3d 60
• Parties: UNITED STATES of America, Appellee, v. Douglas HERSOM, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

588 F.3d 60

UNITED STATES of America, Appellee, v.Douglas HERSOM, Defendant, Appellant.

No. 07-2401.

United States Court of Appeals, First Circuit.

Heard July 30, 2009.

Decided December 3, 2009.

David Shaughnessy for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before Torruella, Boudin, and Dyk,^* Circuit Judges.

DYK, Circuit Judge.

This is an appeal from a criminal conviction of arson in the United States District Court for the District of Maine.DefendantDouglas Hersom pled guilty to a charge that he maliciously destroyed by fire a building owned by an institution "receiving Federal financial assistance" in violation of 18 U.S.C. § 844(f).On appeal, Hersom contends that his conviction should be reversed because the statute is unconstitutional, or that the statute should be construed to be inapplicable to the circumstances of his case.Alternatively, he contends that resentencing is required because the district court erroneously determined that he was a career offender under the U.S. Sentencing Guidelines ("Guidelines").U.S. Sentencing Guidelines Manual§ 4B1.1("U.S.S.G.").

We conclude that 18 U.S.C. § 844(f), as properly construed, is a permissible exercise of Congress's power under the Property Clause of the Constitution.U.S Const. art. IV, § 3, cl. 2.We also hold that the statute is applicable in the circumstances of this case, and thus we affirm the conviction.Finally, we vacate the sentence and remand for resentencing in light of this Court's intervening decision in United States v. Giggey,551 F.3d 27(1st Cir.2008)(en banc).

I.

On May 24, 2007, defendant Hersom pled guilty to one count of arson in violation of 18 U.S.C. § 844(f).Hersom stipulated that on December 19, 2006, he, co-defendantTimothy Giggey, and an unnamed juvenile male intentionally set three separate fires which ultimately destroyed the entire block of four buildings located from 159 to 177 Lisbon Street in Lewiston, Maine.The specific property listed in the indictment, 171 Lisbon Street, was owned by Greely Capital, LLC("Greely").The City of Lewiston provided financing to renovate the properties (in the amount of $50,000), utilizing funds obtained through a Community Development Block Grant ("CDBG") from the U.S. Department of Housing and Urban Development("HUD").

At the sentencing hearing, the court determined that Hersom was a career offender under U.S.S.G. § 4B1.1 because he had two predicate offenses.Hersom's two prior felony convictions included a March 2000 conviction for burglary of a dwelling structure and a February 2004 conviction for burglary of a commercial structure.The court sentenced Hersom to 151 months in prison and ordered him to pay restitution of $351,333.33.Hersom timely appealed, and we have jurisdiction under 28 U.S.C. § 1291and18 U.S.C. § 3742(a).

Following oral argument, we requested supplemental briefing concerning the proper construction of 18 U.S.C. § 844(f) and the constitutionality of the statute as so construed.

II.

A.The Scope of 18 U.S.C. § 844(f)

Congress enacted 18 U.S.C. § 844(f) as part of Title XI of the Organized Crime Control Act of 1970. Pub.L. No. 91-452,84 Stat. 922, 957(codified as amended in scattered sections of 18 U.S.C.).The statute makes it a crime to destroy

by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance.

18 U.S.C. § 844(f)(1)(emphases added).Section 844(f) was promulgated pursuant to Congress's power under the Property Clause of the Constitution.H.R.Rep. No. 91-1549(1970), as reprinted in1970 U.S.C.C.A.N. 4007, 4046.The Property Clause of the Constitution provides that "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."U.S. Const. art. IV, § 3, cl. 2.

On appeal, Hersom argues that to pass constitutional muster, section 844(f) must be interpreted as applying only to property owned, possessed, or leased by the United States, its departments and agencies, and property owned, possessed, or leased by "federal instrumentalities," i.e. institutions or organizations "substantially funded by the federal government and effectuating a specific Congressional purpose."¹Appellant'sBr. 51.Thus Hersom's theory is that the federal government's power under the Property Clause does not extend beyond property owned, possessed, or leased by the federal government and its instrumentalities.However, the Supreme Court, in a case curiously not cited by either party, has held that the Property Clause authority is not so limited.In Ruddy v. Rossi,248 U.S. 104, 106-07, 39 S.Ct. 46, 63 L.Ed. 148(1918), the Court upheld under the Property Clause provisions of the Homestead Act, Pub.L. No. 37-64,12 Stat. 392(1862), that provided that federal lands transferred to settlers by the United States could not be reached under state law to satisfy debts contracted prior to the transfer.248 U.S. at 106, 39 S.Ct. 46.Thus, at least in some circumstances, Congress may properly enact legislation under the Property Clause power governing the conduct of third parties with respect to property not owned, possessed, or leased by the United States, its agencies, or its instrumentalities where such regulation is necessary to protect property acquired from the federal government.

Hersom alternatively contends that section 844(f) should be construed to be limited to "federal instrumentalities," because of the Supreme Court's decision in United States v. Walter,263 U.S. 15, 44 S.Ct. 10, 68 L.Ed. 137(1923).In Walter,Congress had enacted a federal criminal statute punishing fraud against "any corporation in which the United States of America is a stockholder."263 U.S. at 16, 44 S.Ct. 10;seeAct ofOctober 23, 1918, Pub.L. No. 65-228, 40 Stat. 1015.The defendant had defrauded the United States Emergency Fleet Corporation("Fleet Corporation"), a corporation in which the United States owned all of the stock.Walter,263 U.S. at 16, 44 S.Ct. 10.The Court held that the criminal statute"should be construed to refer only to corporations like the Fleet Corporation that are instrumentalities of the government and in which for that reason it owns stock," in order to avoid the constitutional issue raised by interpreting the statute to encompass "any corporation in which the United States owned a single share of stock."Id. at 17-18, 44 S.Ct. 10.However, Walter does not compel a "federal instrumentalities" construction of section 844(f).Nothing in the Court's opinion in Walter foreclosed the possibility that some other federal interest in property, more substantial than ownership of a "single share of stock," would be sufficient to withstand constitutional scrutiny.

Moreover, the language of the 1918 Act was ambiguous as to what level of stock ownership was sufficient to trigger coverage under the statute.In contrast, section 844(f) expressly applies to "any institution or organization receiving Federal financial assistance."The legislative history accompanying the recent 2002amendment to section 844(f)(restoring the federal financial assistance language) also does not suggest that section 844(f) is limited to "federal instrumentalities."SeeHomeland Security Act, Pub.L. No. 107-296, § 1125,116 Stat. 2135, 2285.That history contains no reference to "federal instrumentalities," and refers to institutions or organizations "receiving Federal financial assistance."See18 U.S.C. § 844(f);H.R.Rep. No. 107-658, at 5-6(2002).

Hersom makes two additional arguments in favor of his "federal instrumentality" construction, neither of which we find persuasive.First, Hersom correctly points out that the legislative history of an earlier version of the statute containing the "Federal financial assistance" language stated that it applied to "universities, hospitals, and police stations."Appellant'sBr. 46;H.R.Rep. No. 91-1549, as reprinted in1970 U.S.C.C.A.N.at 4014.But we do not think this suggests that the statute is limited to federal instrumentalities; if anything, it suggests the contrary.Second, Hersom argues that in United States v. Kimberlin, the Seventh Circuit adopted a "federal instrumentality" construction.805 F.2d 210(7th Cir.1986).It is true that the Seventh Circuit suggested that the statute applied only to "federal instrumentalities," but the court's definition of a federal instrumentality was quite different from Hersom's.In Kimberlin,the court viewed a federal instrumentality as an institution which "effectuates a national program with federal funds."Id. at 242.This is a much broader construction than Hersom advocates, and is analogous to the construction we adopt below.

While neither the statutory text nor the legislative history sheds adequate light on the precise scope of "receiving Federal financial assistance," the phrase is used in other federal statutes and regulations.²The Supreme Court has recognized that in general, similar language used in federal statutes should be given a similar construction, unless the purpose of the statute or its legislative history suggests otherwise.In Rutledge v. United States,the Court adopted the analysis of the plurality opinion in Jeffers v. United States,432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168(1977), in which Justice Blackmun interpreted the phrase "in concert" in 21 U.S.C. § 848 to connote "cooperative action," because "in concert" had been similarly construed in other federal statutes.Rutledge,517 U.S. 292, 299 n. 10, 300, 116 S.Ct. 1241, 134 L.Ed.2d 419(1996).Absent "any indication ... to the contrary" in the legislative history or elsewhere, it appeared that Congress intended...