U.S. v. McMasters, s. 95-3021

• Decision Date: 02 August 1996
• Docket Number: 95-3024 and 95-3061,95-3023,Nos. 95-3021,s. 95-3021
• Parties: UNITED STATES of America, Appellee, v. Charles McMASTERS, Jr., Appellant. UNITED STATES of America, Appellee, v. Reginald ARLINE, Appellant. UNITED STATES of America, Appellee, v. Steven JOHNSON, Appellant. UNITED STATES of America, Appellee, v. Jimmy FOLEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1394

90 F.3d 1394

UNITED STATES of America, Appellee, v. Charles McMASTERS, Jr., Appellant.

UNITED STATES of America, Appellee, v. Reginald ARLINE, Appellant.

UNITED STATES of America, Appellee, v. Steven JOHNSON, Appellant.

UNITED STATES of America, Appellee, v. Jimmy FOLEY, Appellant.

Nos. 95-3021, 95-3023, 95-3024 and 95-3061.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 16, 1996.

Decided Aug. 2, 1996.

Rehearing and Suggestion for Rehearing

En Banc Denied in No. 95-3021

Sept. 6, 1996.

Alfredo Parrish, Des Moines, IA, argued, for appellant McMasters.

Nickloas Critelli, Des Moines, IA, argued, for appellant Arline.

Frank Steinbach, III, Des Moines, IA, argued, for appellant Johnson.

Jerry R. Foxhoven, Des Moines, IA, argued, for appellant Foley.

Robert Dopf, Des Moines, IA, argued, for appellee (Don C. Nickerson, U.S. Atty., on brief).

Before WOLLMAN, HEANEY, and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

Charles McMasters, Jr., Reginald Arline, Steven Johnson, and Jimmy Foley (defendants) were convicted following a jury trial in the district court ¹ of conspiracy to distribute marijuana and cocaine base in violation of 21 U.S.C. § 846, conspiracy to commit arson in violation of 18 U.S.C. § 371, carrying a destructive device during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and carrying a destructive device during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). Foley was also convicted of carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1). Defendants appeal their convictions, arguing that there was no federal jurisdiction to convict them for conspiracy to commit arson because of an insufficient connection to interstate commerce, that there was insufficient evidence to convict them of a conspiracy to distribute cocaine base, that their convictions for conspiracy to commit arson and for using and carrying a destructive device during and in relation to a crime of violence and during a drug trafficking crime were duplicative, and that the district court abused its discretion in dismissing a juror and in issuing two jury instructions. McMasters also argues that the district court abused its discretion in denying him a continuance. We affirm.

I.

At 3:20 a.m. on Monday, August 1, 1994, a bomb exploded in the driveway of a house at 635 Eighth Avenue South in Clinton, Iowa, destroying two unoccupied vehicles. A second bomb was thrown through the living room window of the residence, but failed to detonate. Ulysses Burns, a purported drug dealer, his girlfriend, who was renting the house, and three small children were asleep in the living room when the bomb was thrown into the house.

Following an investigation, police arrested the defendants in connection with the bombing and for a related drug conspiracy. According to testimony at trial, the defendants, who were allegedly members of the Gangster Disciples gang, were engaged in the business of marijuana distribution and were beginning to branch out into cocaine base distribution. Defendants had targeted Burns for assassination because, as a rival drug dealer, he had refused to pay them a "tax" on illegal drug sales. In late July 1994 Foley, while the other defendants and other gang members watched, constructed three pipe bombs. The bombs were constructed from lengths of pipe purchased by McMasters and Foley on July 27, 1994, from smokeless gunpowder stolen during a burglary of a private home on June 28, 1994, and from lengths of fuse purchased at McMasters' request. To test the bomb design, McMasters, Foley, and other gang members detonated one of the bombs outside of town.

Prior to the actual bombing, the defendants made an aborted attempt to bomb Burns's residence. McMasters, Arline, and Johnson went to Chicago to have an alibi. Foley, carrying a handgun, and two other gang members went to Burns's residence to carry out the bombing. One of Foley's associates refused to complete the bombing, however, and the group retreated. The other defendants returned from Chicago the next day. There was no witness testimony as to who ultimately bombed Burns's residence.

The defendants were indicted by a grand jury on counts of conspiracy to distribute marijuana in violation of 21 U.S.C. § 846, conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846, conspiracy to commit arson in violation of 18 U.S.C. § 371, carrying a destructive device during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and carrying a destructive device during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). Foley was also indicted on a count of carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). The defendants, represented by public defenders, pled not guilty to all charges, and the case was scheduled for a jury trial.

Several days prior to trial McMasters, who had retained private counsel, sought a continuance of the trial date so that his attorney would have time to prepare for trial. The district court denied the continuance, and McMasters was represented by a public defender during trial. On the last day of trial, the jury panel's sole African-American became ill. Over the defendants' objections, the court dismissed the juror, and replaced her with an alternate.

The defendants were convicted on all counts ² and were sentenced by the court at a subsequent sentencing hearing. McMasters received a sentence of 423 months, Arline received a sentence of 430 months, Johnson received a sentence of 444 months, and Foley received a sentence of 477 months. The defendants were also ordered to pay special assessment costs and restitution and, following their prison sentences, to serve five years of supervised release. Defendants now appeal their convictions.

II.

Defendants were convicted under 18 U.S.C. § 371 for conspiracy to commit arson, a violation of 18 U.S.C. § 844(i). ³ Relying on United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), defendants argue on appeal that § 844(i) is facially unconstitutional because it is beyond Congress's Commerce Clause authority. We review de novo the constitutional challenge of a statute. See United States v. Bates, 77 F.3d 1101, 1104 (8th Cir.1996).

In Lopez, the Supreme Court held that the Gun Free School Zones Act, 18 U.S.C. § 922(q), exceeded Congress's authority under the Commerce Clause. The Court noted that, under its commerce power, Congress may: (1) regulate the use of the channels of interstate commerce; (2) regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though a threat may come only from intrastate activities; (3) regulate those activities that substantially affect interstate commerce. See Lopez, --- U.S. at ---- - ----, 115 S.Ct. at 1629-30. The Court briefly concluded that the activity regulated by the statute, possession of guns within 1000 feet of a school, did not fit either of the first two categories, and focused its analysis on the third category.

The Lopez Court concluded that the statute could not "be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." Id. at ----, 115 S.Ct. at 1631. The Court noted that the statute contained "no jurisdictional element which would ensure, through case-by-case inquiry, that the [activity] in question affects interstate commerce," id. at ----, 115 S.Ct. at 1631, and that Congress had made no legislative findings that the activity so affected interstate commerce. See id. at ---- - ----, 115 S.Ct. at 1631-32. Without a more definite connection to interstate commerce, upholding the statute would allow Congress to "regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce," id. at ----, 115 S.Ct. at 1632, which exceeded the proper limits of the federal government's power.

Unlike the statute at issue in Lopez, 18 U.S.C. § 844(i) does contain a requirement that property be "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce...." In addition, the legislative history of § 844(i) reflects Congress's concern that it not exceed its Commerce Clause authority, and Congress's determination that the statute was necessary to protect interstate commerce. See 116 Cong. Rec. 35198, 35359 (1970), quoted in Russell v. United States, 471 U.S. 858, 861-62, n. 9, 105 S.Ct. 2455, 2457, n. 9, 85 L.Ed.2d 829 (1985). Finally, it is clear that Congress has authority to protect those buildings which are the situs of "commercial transaction[s], which viewed in the aggregate, substantially affects interstate commerce." Lopez, --- U.S. at ----, 115 S.Ct. at 1631. Although the applicability of § 844(i) in various circumstances may be "threaten[ed by] legal uncertainty," Lopez, --- U.S. at ----, 115 S.Ct. at 1664 (Breyer, J., dissenting), we conclude that § 844(i) on its face is constitutional. See United States v. Sherlin, 67 F.3d 1208, 1214 (6th Cir.1995) (under Lopez, Congress did not exceed its Commerce Clause authority in enacting § 844(i)) (arson of a college dormitory), cert. denied, --- U.S. ----, 116 S.Ct. 795, 133 L.Ed.2d 744 (1996).

Defendants contend that, even if facially constitutional, § 844(i) could not be constitutionally applied in this case because the object of the arson conspiracy was a private residence and was thus not in the stream of interstate commerce. We disagree. Burns's residence was a rental unit which received some utilities from out-of-state. Unlike the possession of a firearm at issue in Lopez, rental real estate represents an ongoing...