U.S. v. Martin, 97-1032

• Citation: 147 F.3d 529
• Decision Date: 22 June 1998
• Docket Number: No. 97-1032,97-1032
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John T. MARTIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 529

147 F.3d 529

UNITED STATES of America, Plaintiff-Appellee, v. John T. MARTIN, Defendant-Appellant.

No. 97-1032.

United States Court of Appeals, Seventh Circuit.

Argued June 10, 1997.

Decided Sept. 25, 1997.

Modified and Published on Rehearing

June 22, 1998 ¹.

Sharon Jackson (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Doyal E. McLemore, Jr. (argued), Fort Wayne, IN, for Defendant-Appellant.

Before CUDAHY, COFFEY, and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

John Thomas Martin pleaded guilty to bombing a private dwelling, 18 U.S.C. § 844(i), and obstruction of justice. 26 U.S.C. § 5841. Martin appeals his conviction and sentence, arguing that (1) the impact of the bombing on interstate commerce was too slight to satisfy the interstate commerce requirement of § 844(i); and (2) the court wrongly calculated his base offense level under the Sentencing Guidelines, because he "merely" tried to damage, rather than destroy, the dwelling, and did not knowingly create a risk of death or serious bodily harm to the occupant of the house he bombed. We affirm.

I.

John Thomas Martin was divorced from his wife, Lynn Webster, and not happy about it. Before they separated, Martin told Webster that if she ever saw another man, he would kill the other man. Martin told his friends that he followed Webster around to see if she was seeing anyone. On September 14, 1995, Webster obtained a restraining order against Martin. Martin, however, continued to be obsessed with his ex-wife. He learned that Webster had been seen talking to a man who drove a black car. Thereupon, Martin tracked down the man's identity, and learned that he and Webster worked together. The man in question was James Bowyer. Though Martin denies doing so, his co-workers later told investigators that because he believed (falsely, as it turned out) that Bowyer was dating Webster, Martin offered to pay them to beat up Bowyer, talked of blowing Bowyer up and also talked about setting off a bomb at Bowyer's house. In fact, Martin did more than talk: he brought a pipe bomb to work, and boasted that Webster was going to pay for cheating on him. The pipe bomb was just over five inches long and one-and-a-half inches in diameter.

On the night of October 5, 1995, Martin ran into his friend Martin Campton and informed Campton that he was going to bomb either Webster's or Bowyer's house. Martin and Campton went to Bowyer's house about 10:30 p.m. The house was dark, but Bowyer's car was in the driveway. According to Campton, Martin planted the pipe bomb at the back door of the house, and lit the fuse. Martin maintained that he set the bomb ten feet from the back door, after which Campton detonated it. Bowyer was not injured in the ensuing explosion, but the bomb caused $4,000 in damage to the back door, the porch and a refrigerator on the porch, and another $3,500 in damage to a building behind Bowyer's house. Needless to say, it also roused Bowyer and his neighbors.

After fleeing the scene of the explosion, Martin called a friend from work, William Rabe, whom he met to work out an alibi. Martin gave Rabe the materials left over from constructing the pipe bomb, which Rabe subsequently destroyed. Martin also destroyed the shoes he had worn during the bombing and asked several other co-workers to lie about the incident to investigators.

The attempts to thwart the investigation were in vain. Campton cooperated with the government, which, with Campton's consent, recorded a conversation between Martin and Campton about the bombing. In that conversation, Martin indicated that he made and detonated the bomb and believed he could face attempted murder charges as a result. Martin was arrested and indicted. He eventually pleaded guilty to one count of destruction of property by explosive, 18 U.S.C. § 844(i), ² and one count of obstruction of justice. 26 U.S.C. § 5841. Martin stipulated that the bomb was set off to frighten Bowyer. The plea agreement also stipulated that the utilities connected to Bowyer's residence "affected commerce or moved in interstate commerce." Martin disputed several of the factual findings in the Presentence Investigation Report, including the Probation Office's recommendation that his base offense level be calculated at 24, for knowingly attempting to harm Bowyer and destroy his house. The district court concluded that Martin planted the bomb himself, knowingly created a substantial risk of death or serious bodily injury to Bowyer when he did so and intended to destroy the dwelling. For those reasons, the court determined that Martin's base offense level was 24, U.S.S.G. § 2K1.4(a)(1), and sentenced him to 108 months in prison, $7,396.50 in restitution and a term of supervised release. Martin appeals.

II.

The federal bombing statute requires that the damaged property be used in or affect interstate commerce. 18 U.S.C. § 844(i). Martin's principal contention is that the residence which he bombed had too small an impact on interstate commerce to satisfy that requirement. Martin argues that under the Supreme Court's decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Congress may only regulate activities which have a substantial effect on interstate commerce. Id. at 559, 115 S.Ct. 1624. Martin argues that the only proven nexus of Bowyer's residence with interstate commerce is non-business, private telephone service, provided by a company with corporate offices in Florida. This telephone service was not interrupted by the bombing, and, Martin notes, the record is devoid of evidence that Bowyer even used his phone. Therefore, Martin concludes, the bombing had no substantial effect on interstate commerce. Because the requisite nexus with interstate commerce was lacking, according to Martin, the district court lacked jurisdiction over his crime.

Martin's argument rests on the concept that a guilty plea does not waive jurisdictional defenses to the crime at issue. United States v. Nash, 29 F.3d 1195, 1201 (7th Cir.1994). But the nexus with interstate commerce, which courts frequently call the "jurisdictional element," is simply one of the essential elements of § 844(i). Although courts frequently call it the "jurisdictional element" of the statute, it is "jurisdictional" only in the shorthand sense that without that nexus, there can be no federal crime under the bombing statute. Kanar v. United States, 118 F.3d 527, 530 (7th Cir.1997). It is not jurisdictional in the sense that it affects a court's subject matter jurisdiction, i.e., a court's constitutional or statutory power to adjudicate a case, here authorized by 18 U.S.C. § 3231. See Steel Co. v. Citizens for a Better Env't, --- U.S. ----, ----, 118 S.Ct. 1003, 1110, 140 L.Ed.2d 210 (1998). This court has recognized for decades that, despite defendants' tendency to "confuse[ ] facts essential to be alleged as elements of the crime with jurisdictional requirements arising as a matter of law," once a defendant pleads guilty in "[a] court which has jurisdiction of the subject matter and of the defendant, as did the court in the instant case," the court's judgment cannot be assailed on grounds that the government has not met its burden of proving "so-called jurisdictional facts." United States v. Hoyland, 264 F.2d 346, 352-53 (7th Cir.1959); La Fever v. United States, 279 F.2d 833, 834 (7th Cir.1960). Even if the government fails to establish the connection to interstate commerce, the district court is not deprived of jurisdiction to hear the case. See generally Steel Co., 118 S.Ct. at 1010-13.

Relying on certain language in this court's opinion in United States v. Stillwell, 900 F.2d 1104, 1110 n. 2 (7th Cir.1990), Martin argues that the adequacy of the interstate commerce element is jurisdictional and may be raised for the first time on appeal despite his guilty plea. In Stillwell, the defendants were charged with arson under § 844(i). At trial, the parties stipulated that the only nexus between the house that was burned and interstate commerce was that it received gas from the Northern Illinois Gas Company, which was supplied from sources outside of Illinois. Id. at 1106. On appeal, the defendants asserted that it was beyond Congress' power to outlaw arson of a private residence where the only connection with interstate commerce was the supply of interstate natural gas. This court rejected the government's position that the defendants had waived this argument on appeal because they had not raised it before the district court stating:

While we agree that defendants did not raise this issue at the district court level, defendants may raise this issue on appeal because it is jurisdictional. If the application of § 844(i) to defendants exceeds Congress' power under the commerce clause, the district court could not exercise jurisdiction over the subject-matter contained in Count One (the arson conspiracy charge) and Count Two (the substantive arson charge). Lack of subject-matter jurisdiction, whether through statutory interpretation or constitutional prescription, is never waived.

Id. at 1110 n. 2 (citations omitted); see also United States v. Prevatte, 16 F.3d 767, 771 n. 3 (7th Cir.1994) (in a § 844(i) case, citing Stillwell and addressing adequacy of the interstate commerce nexus sua sponte on appeal because it was "jurisdictional"). Martin relies on this language in support of his assertion that the required nexus to interstate commerce is jurisdictional, and thus, he cannot have waived the argument by pleading guilty.

We acknowledge that the language in footnote 2 of Stillwell is mistaken and imprecisely states the basis on which this court permitted the defendants in that case to raise their argument for the first time on appeal. Accordingly, we take this opportunity to correct our explanation for allowing the defendants in Stillwell to challenge the interstate commerce element on appeal. We...