U.S. v. McGuire, 97-3542

• Decision Date: 28 May 1999
• Docket Number: No. 97-3542,97-3542
• Citation: 178 F.3d 203
• Parties: UNITED STATES of America, v. Joseph T. McGUIRE Appellant
• Court: U.S. Court of Appeals — Third Circuit

178 F.3d 203

UNITED STATES of America, v. Joseph T. McGUIRE Appellant

No. 97-3542.

United States Court of Appeals Third Circuit.

Argued Nov. 17, 1998.

Decided May 28, 1999.

Shelley Stark (Argued), Office of Federal Public Defender, Pittsburgh, PA, for Appellant.

Paul J. Brysh (Argued), Bonnie R. Schlueter, Office of United States Attorney, Pittsburgh, PA, for Appellee.

Before: MCKEE, RENDELL & WEIS, Circuit Judges.

OPINION OF THE COURT

McKEE, Circuit Judge.

Joseph McGuire appeals his conviction for aiding and abetting the use of an explosive to destroy property used in an activity affecting interstate commerce in violation of 18 U.S.C. §§ 2 and 844(i). For the reasons that follow we hold that the evidence presented was not sufficient to establish the jurisdictional element of the offense, and we will reverse.

I.

On the morning of December 19, 1995, Joseph's mother, Lee Ann McGuire, was injured when a pipe bomb exploded inside her Toyota Camry. Mrs. McGuire operated LD & B Catering with her best friend, Diane Murray. LD & B Catering, was licensed to do business in Pennsylvania, and operated locally. Mrs. McGuire and Ms. Murray had an arrangement with a local church whereby they would use the church's kitchen to prepare food for their catering jobs. They gave the church 30% of any profit they made in return for the use of the kitchen. Murray and McGuire used several different vehicles, including Lee Ann's Toyota, to transport items for their catering business.

On the morning of December 19, 1995, that Toyota was destroyed by a pipe bomb which had been planted beneath the driver's seat. The explosion caused the catering business to stop operating for approximately three months. However, the interruption was not due to the loss of the Toyota, or anything in it. Rather, it resulted from Diane Murray's need to help Lee Ann McGuire recover from injuries sustained when the bomb exploded.

The crime remained unsolved for nearly a year. However, in November 1996, agents from the Bureau of Alcohol, Tobacco, and Firearms questioned Joseph McGuire and his fiance, Kristen Markeeta. During that interrogation, McGuire purportedly confessed to helping a friend, Gary Mingle, place the bomb in McGuire's mother's car. ¹ McGuire stated that he and Ms. Markeeta solicited Mingle to "take care of" Mrs. McGuire because they resented Mrs. McGuire's interference in their relationship. McGuire's assistance consisted of signaling Mingle by turning on a light on Mrs. McGuire's porch. This signaled Mingle that the occupants of the McGuire household were asleep and that it was safe for Mingle to place the bomb in Mrs. McGuire's car. McGuire was convicted of violating 18 U.S.C. § 844(i), and this appeal followed.

II.

A.

18 U.S.C. § 844(i) states in relevant part:

Whoever maliciously damages ..., by means of an explosive, any ... vehicle, or other real or personal property used in ... any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both;

"Thus, an essential element of the crime of arson under § 844(i) is that the property was used in any activity affecting interstate or foreign commerce." United States v. Pappadopoulos, 64 F.3d 522, 524 (9th Cir.1995) (citing United States v. Karlic, 997 F.2d 564, 571 (9th Cir.1993)) (internal quotations omitted). This jurisdictional element, like all other elements of any criminal offense, must be established beyond a reasonable doubt. Pappadopoulos, 64 F.3d at 524 (citing United States v. Nukida, 8 F.3d 665, 669-73 (9th Cir.1993)).

Both parties here rely heavily on the Supreme Court's decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The constitutionality of 18 U.S.C. § 844(i) is not implicated in this appeal. In Lopez

the Supreme Court invalidated the Gun Free School Zones Act of 1990, which made it a federal offense for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone. The Court ... observed that [that Act] neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce.

United States v. Gaydos, 108 F.3d 505, 508 (3rd Cir.1997) (internal quotation marks and citations omitted). In Gaydos we upheld the constitutionality of § 844(i) against a challenge bottomed on Lopez. We stated:

Unlike the statute at issue in Lopez, § 844(i) contains a jurisdictional element which ensures, on a case-by-case basis, that the property in question must be used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.

Id. (internal quotation marks omitted).

Here, McGuire makes a constitutional argument, but his primary challenge is to the sufficiency of the evidence that was introduced to establish the interstate commerce nexus required by § 844(i). ²

B.

At trial, the prosecutor sought to establish the jurisdictional nexus required by this statute by relying upon Mrs. McGuire's occasional use of her Toyota in her catering activity, and the contents of the Toyota's trunk when it exploded. The evidence established that a bottle of Tropicana orange juice had been in the trunk of the Toyota when it exploded. The raw material for that orange juice was produced in Florida and then shipped by "tanker" truck to Reading Pennsylvania where it was packaged for home consumption and distributed. Lee Ann McGuire or Diane Murray purchased the orange juice at a Sam's Club in Altoona Pennsylvania for use in a catering job scheduled for December 20, 1995. Although the government conceded that the catering business itself was a small, intrastate activity, the prosecutor argued that the bottle of orange juice was sufficient to satisfy the interstate commerce requirement of 18 U.S.C. § 844(i) because the Florida origins of the juice established that the activities of LD & B catering had an interstate effect, and the Toyota was therefore used in an activity affecting interstate commerce.

On appeal the government suggests that we should now look past the orange juice and consider other items that were in the trunk, the fuel in the gas tank, and the nature of Mrs. McGuire's catering business. The government states "[a]t the time of the explosion, there were in the trunk of the Camry toothpicks, Tyson's chicken, and Tropicana orange juice for a catering job the next day." Appellee's Br. at 24. The prosecution also states that the catering business "was a licensed business that had some effect upon interstate commerce. The government is not required to show that this effect was itself substantial." Appellee's Br. at 24. However, the only evidence that the government introduced at trial of the effect the catering business had on interstate commerce pertained to the production, transportation, and distribution of the orange juice. During the trial, the court expressed its concern about the sufficiency of that proof:

[The Court]: it boils down to a very simple question ... why is this a federal case ... Does this case, ... as a federal case come down to nothing more than a carton of orange juice? ...

[The Prosecutor]: Absolutely not, Your Honor. I think the question is whether LD & B Catering had an effect on interstate commerce .... [w]hether this vehicle was used in an activity, ... affecting interstate commerce.

So it is our position that we have established from an evidentiary standpoint that LD & B Catering, by virtue of its existence as a for profit commercial enterprise, supplied by food items purchased at distributors, to include out of state suppliers, is by its nature a commercial enterprise which affects interstate commerce.

* * *

we have sought to demonstrate, ... that the property in question have (sic ) a de minimis effect on interstate commerce.

App. 566-68. The trial judge then summarized the positions of the defendant and the prosecution. The court noted that the defendant was arguing that, under Lopez, the prosecution must show that the act he was accused of had a "substantial effect on interstate commerce" while the prosecution maintained that it need only satisfy a "de minimis test." Id at 568, 115 S.Ct. 1624. The prosecutor accepted this statement of his position, and elaborated as follows:

I would concede the point. I am and have proceeded on a de minimis platform. I have not presented evidence, other evidence of the manner and breadth of which LD & B Catering had an effect as a commercial enterprise on interstate commerce, to include the fact perhaps that the automobile was supplied by gasoline which had moved in interstate commerce, or to show that the building in which LD & B Catering operated, that is the church, was supplied by heat and fuel or an electrical grid which had moved in interstate commerce ... It is my position that the standard is that it have a de minimis effect, and that I have met that burden.

App. at 570. However, despite these theoretical assertions, the only evidence that was offered was summarized in the following proffer:

I'm prepared to show, for instance, that Tropicana orange juice, that being the single item which was located in the trunk of the vehicle, had moved in interstate commerce.

App. at 571.

The jury convicted the defendant as charged in the single count indictment. Following the conviction, the district court issued a Memorandum Order explaining its rejection of the defendant's previously filed motion for judgment of acquittal under Fed.R.Crim. 29(b). The district court ruled that the carton of orange juice was sufficient to satisfy jurisdiction as it established that the catering business was an activity that affected commerce. See Dist. Ct. Op. at 2 ("The government's theory is that while the Toyota was not itself used in interstate commerce, the Toyota was used in an activity affecting interstate commerce."). ³

C.

The government's assertion...