U.S. v. Medeiros, 89-1713

• Decision Date: 04 December 1989
• Docket Number: No. 89-1713,89-1713
• Citation: 897 F.2d 13
• Parties: UNITED STATES, Appellee, v. Joseph L. MEDEIROS, Jr., Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 13

897 F.2d 13

UNITED STATES, Appellee, v. Joseph L. MEDEIROS, Jr., Defendant-Appellant.

No. 89-1713.

United States Court of Appeals First Circuit.

Heard Dec. 4, 1989.

Decided March 2, 1990.

Mark M. Freeman (argued), with whom Rappaport, Freeman & Pinta, Boston, Mass., was on brief, for defendant-appellant.

Martin F. Murphy, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, and COFFIN and BOWNES, Senior Circuit Judge.

COFFIN, Senior Circuit Judge.

Joseph Medeiros, Jr. was indicted for conspiring to commit arson under 18 U.S.C. Secs. 371 and 844(i). After discovery, he moved to dismiss the indictment for lack of jurisdiction, arguing that the government could not prove at trial that the object of the arson conspiracy was a building used in or affecting interstate commerce. After reviewing the government's evidentiary proffer, the district court denied the motion. 706 F.Supp. 91. The defendant then entered a conditional guilty plea, specifically reserving the right to appeal the issue.

At the sentencing hearing, the court rejected the recommendation of the presentence report and adopted the offense level calculated by the government. This calculation included an increase from the base level for arson based on a finding that the defendant's actions recklessly would have endangered others. The defendant objected to this increase.

On appeal we are asked to address both issues. We affirm.

I.

In early June 1988, Medeiros was telephoned by an undercover agent of the Bureau of Alcohol, Tobacco and Firearms (BATF), Terrence Barry. Barry represented that he was the owner of a commercial property and was in desperate financial circumstances. He claimed that a mutual friend had told him that Medeiros could put him in touch with an arsonist. Barry reported that the insurance on his property was to run out on July 1, and that he needed the property burned before that time. Medeiros initially declined to get involved.

He was approached again in person by Barry two weeks later, June 16, 1988. After listening to Barry's pleas that he was "against the wall," Medeiros agreed to contact his friend and took a deposit of $500. Barry described the property as an old brick factory building that he had intended to convert. He indicated that the building was used for storage and that there was nothing nearby. He stated that "people don't even walk through there." Appendix at 30. At the time of these initial representations, the property described was a purely fictitious site invented by Barry.

Medeiros spoke with the arsonist on Monday, June 20. He told Barry to expect a call the next morning. At nine-thirty Tuesday morning, the arsonist called Barry. In this conversation, Barry described the building: "It's it's [sic] storage it's commercial, ah there's a vacant lot next to it." Appendix at 43. Barry indicated that the building was currently leased to a container company, although that tenant was to leave on Friday. The arsonist told him it probably would cost less than $5,000, although he reserved making a price commitment until after viewing the building. He declined to meet Barry, insisting that all contact occur between Medeiros and Barry.

Later the same day, Barry and Medeiros had three telephone conversations about the timing of the arson. The arsonist refused to commit himself to a specific day and time, and negotiations temporarily broke down. Barry made arrangements to pick up the deposit from Medeiros on June 24.

During the June 24 meeting, Barry agreed to the condition set by the arsonist for the timing of the arson, i.e., that the event would occur on one of three days in the next week. Medeiros then asked some specific questions about the property. Barry told him it was an old oil-soaked wooden warehouse. He indicated that the packaging company was moving out that day. He described the building, drawing a diagram that showed the entrance, overhead doors, electric panel and an electric heat source. The diagram also showed the location of the street and the nearest occupied house. When Medeiros asked how many feet from the building the house was, Barry responded, "It's close, it's close." Appendix at 73. He also indicated that there were windows, but that they were boarded up. He stated that it was a ninety year old building with a granite slab basement. In the corner of the basement was a heating system that was shut down. Barry told Medeiros that the building would be empty, with the exception of "a couple of snowblowers" and some pallets.

The building Barry described and sketched at this meeting was an actual warehouse owned by the Globe Bag Company, a company buying supplies and selling finished products interstate. During the negotiations, the government had secured the use of this building as a supposed target, to show the arsonist, if necessary. The government offered to prove that the building was being used by the Globe Bag Company to store certain equipment, including the snowblowers described by Barry.

On Monday, June 27, Barry twice called Medeiros at work. During these conversations, Medeiros expressed concern that Barry had not heard from the arsonist. Medeiros similarly had not been contacted. They agreed, however, to meet at noon the next day and visit the site. Medeiros anticipated that he would be in contact with the arsonist soon.

When they met the following day, however, Medeiros informed Barry that his friend had "dropped from the face of the earth." Appendix at 85. Nevertheless, Medeiros told Barry that he expected the arsonist to reappear after Medeiros had viewed the property. Barry and Medeiros got into Barry's car and headed for the building. The BATF agents made a decision to close the operation while Barry and Medeiros were on their way to the property. Medeiros was arrested before actually viewing the building.

II.

In order for Medeiros to be found guilty, the government had to prove, among other things, that the building he conspired to burn was "used in interstate ... commerce or in any activity affecting interstate ... commerce." 18 U.S.C. Sec. 844(i). The district court found that the government offered proof from which a jury could find this connection on either of two theories. First, a jury reasonably could believe that the defendant actually thought he was contracting to burn a commercial building which, if it existed, would have been used in an activity affecting interstate commerce. Alternatively, the jury could have found that an actual building was the target of the agreement and was used in an activity affecting interstate commerce at the relevant time. We find sufficient evidence in the record to support a finding of a connection to interstate commerce under the first theory, and therefore do not reach the government's alternative approach.

As Medeiros admits, the fictitious nature of the object of a conspiracy (and thus the impossibility of the conspiracy being successfully concluded) does not preclude finding federal jurisdiction. In United States v. Giordano, 693 F.2d 245, 250 (2d Cir.1982), the Second Circuit held that the character of a building as described to a conspirator can provide the necessary interstate connection.

Jurisdiction is established by proof that the accused planned to commit a substantive offense which, if attainable, would have violated a federal statute ... [A] 'misapprehension' by the conspirators as to facts that make it impossible for them to commit the crime that is the object of the conspiracy does not make the conspiracy less culpable.

Id. at 249-250. Cf. United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975); United States v. Waldron, 590 F.2d 33, 34 (1st Cir.1979). Thus, if the building as described would have been connected sufficiently to interstate commerce if it existed, the fictitious building falls within the ambit of the statute.

To establish jurisdiction under Sec. 844(i), the government need show only a de minimis connection to interstate commerce. See, e.g., United States v. Schwanke, 598 F.2d 575, 578 (10th Cir.1979); United States v. Sweet, 548 F.2d 198, 202 (7th Cir.1977). The language of Sec. 844(i) "expresses an intent by Congress to exercise its full power under the Commerce Clause." Russell v. United States, 471 U.S. 858, 859, 105 S.Ct. 2455, 2456, 85 L.Ed.2d 829 (1985).

In Russell, the Supreme Court found that Congress' power under the Commerce Clause and its intent in enacting Sec. 844(i) brought an apartment building involved in strictly local rentals within the statute. The Court found that "the rental of real estate is unquestionably ... an activity [affecting interstate commerce].... [T]he local rental of an apartment unit is merely an element of a much broader commercial market in rental properties." Id.

Russell thus holds that rental property is per se property used in an activity affecting interstate commerce. Russell, 471 U.S. at 862, 105 S.Ct. at 2457; United States v. Patterson, 792 F.2d 531, 534 (5th Cir.1986). After Russell, if the property to be burned is in the rental market, it is unquestionably sufficiently connected to interstate commerce to confer jurisdiction.

In the instant case, the indictment charged Medeiros with a conspiracy beginning June 16, 1988 and continuing through June 28, 1988. On June 16, agent Barry made it clear to the defendant that the property was being rented. Although the fictitious renter was to have moved on June 24, Medeiros at the least was conspiring to burn property actually being rented from June 16 through June 24. He accepted a deposit of $500 toward the arson on June 16. A jury therefore could find that the object of the conspiracy was in the rental market during the period of the charged offense.

The tenant's departure, moreover, did not necessarily sever the property's ties to interstate commerce for purposes of Sec. 844(i). Unquestionably,...