U.S. v. Odom

• Decision Date: 31 May 2001
• Docket Number: No. 98-6241,98-6241
• Citation: 252 F.3d 1289
• Parties: (11th Cir. 2001) UNITED STATES of America, Plaintiff-Appellee, v. Alan ODOM, Brandy Nicole Boone, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1289

252 F.3d 1289 (11th Cir. 2001)

UNITED STATES of America, Plaintiff-Appellee, v. Alan ODOM, Brandy Nicole Boone, Defendants-Appellants.

No. 98-6241.

United States Court of Appeals,

Eleventh Circuit.

May 31, 2001.

[Copyrighted Material Omitted] Appeals from the United States District Court for the Southern District of Alabama. (No. 97-00157-CR-1), Richard W. Vollmer, Jr., Judge.

Before BIRCH and BLACK, Circuit Judges, and NESBITT^*, District Judge.

NESBITT, District Judge:

Defendants-Appellants Brandy Boone and Alan Odom appeal from their criminal convictions for conspiracy to commit arson and for conspiracy to use fire to commit a felony prosecutable in a United States court. Both Defendants challenge their conviction under 18 U.S.C. § 844(i), contending that the United States failed to prove that St. Joseph's Baptist Church, the church which the Defendants were convicted of burning, had a sufficient connection to interstate commerce. Both Defendants also challenge their conviction under 18 U.S.C. § 844(h)(1), contending that the indictment insufficiently defined the elements of the offense and the jury's verdict was inconsistent. Defendant Boone also challenges the order requiring her to pay restitution. For the reasons stated below, we reverse the conviction under § 844(i) and affirm on all other counts.

I. BACKGROUND

A. Statement of Facts

On the evening of June 30, 1997, Defendants-Appellants Odom and Boone attended a party in Little River, Alabama, a rural community in southern Alabama. The partygoers, including Boone and Odom, consumed a large quantity of alcohol. Around 10 or 11 p.m., a number of the partygoers, including Odom and Boone, left the party in three vehicles with the purpose of finding an abandoned car and setting it on fire. The group obtained gasoline from a local service station and then went in search of an abandoned car. After being unable to locate the abandoned car, the three vehicles pulled up alongside one another at an intersection and Boone suggested "Let's burn the nigger church."

All three vehicles drove directly from the intersection to St. Joseph's Baptist Church, which was just down the road. Odom and Michael Woods broke into the church and set fire to a sofa and some curtains. One of the partygoers convinced the others to extinguish the fire and not burn down the church. After extinguishing this fire, all of the partygoers left the church grounds. Unbeknownst to Boone or the others, Odom and Woods returned in a short time to finish the job they started--to burn down the church--which they successfully accomplished.

B. Proceedings Below

A grand jury in the Southern District of Alabama issued a ten count indictment charging Odom, Boone and others with conspiracy to commit an offense against the United States (18 U.S.C. § 371), damaging religious property because of the religious character of the property (18 U.S.C. § 247(a)(1)), use of fire or explosive to commit a felony prosecutable in federal court (18 U.S.C. § 844(h)(1)), damage or destruction by means of fire or explosive of any property used in interstate commerce or in any activity affecting interstate commerce (18 U.S.C. § 844(i)) and aiding and abetting an offense against the United States (18 U.S.C. § 2).

At trial, the government presented the following evidence of St. Joseph's Baptist Church's connection to interstate commerce: (1) one Bible, three hymnals and an unspecified number of Sunday School materials in the church had been purchased from the National Baptist Publishing Board in Nashville, Tennessee; (2) natural gas used to heat the church was purchased in Alabama, but originated in Mississippi; (3) the church received donations from the pastor's brother and sister-in-law who reside in Detroit, Michigan; (4) the church was a dues-paying member of the First Eastern Shore Missionary Baptist Church Association, an intrastate church association, which, in turn, chose delegates to attend the Alabama State Baptist Convention, which, in turn, chose delegates to attend the National Baptist Convention. There was no evidence that any member of St. Joseph's congregation had ever been elected to attend the state or national conventions. There was no evidence that any interstate traveler had ever visited St. Joseph's Church.

After the government produced all of its evidence supporting the interstate commerce nexus, defense counsel moved for judgment of acquittal on the § 844(i) count contending that the government had failed to present sufficient evidence of the requisite nexus to interstate commerce. The trial court held that the principles of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) did not apply and that the government had met its jurisdictional burden.

The jury returned a verdict convicting Odom of conspiracy to violate 18 U.S.C. § 844(i) and 844(h)(1) and, in two separate counts, of violating and attempting to violate both of those statutes. The jury found Boone guilty of conspiring to violate 18 U.S.C. § 844(i) and conspiring to willfully use fire to commit a felony prosecutable in a United States court under 18 U.S.C. § 844(h)(1), in violation of 18 U.S.C. § 371. After the jury verdict, defense counsel moved to set aside the jury's verdict with respect to the § 844(h)(1) conspiracy conviction on the ground that the verdict was inconsistent. The district court denied that motion.

Pursuant to U.S.S.G. § 2K1.4, which has a guideline range of 33-41 months (offense level 20, criminal history category I), the district court sentenced Boone to 41 months imprisonment, followed by a three-year supervised release term with the special condition of 300 hours of community service. The court also ordered Boone to pay $96,836 restitution to St. Joseph's Baptist Church jointly and severally with three co-defendants.

II. DISCUSSION

A. Section 844(i) & Interstate Commerce Requirement

Defendants Odom and Boone challenge the application of 18 U.S.C. § 844(i) to the arson of St. Joseph's Baptist Church contending that an insufficient connection exists between the arson of St. Joseph's Church and interstate commerce for the statute to be constitutionally applied. "A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them." Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). This principle requires that a decision on a constitutional question is appropriate only after addressing the statutory questions. Id. at 446, 108 S.Ct. 1319. Thus, here, we must determine whether the government met its burden under § 844(i) before addressing whether the statutory requirements satisfy the interstate commerce clause of the Constitution.

Section 844 prohibits the malicious damaging or destroying or attempting to damage or destroy, by means of fire or explosive, any building used in interstate commerce or in any activity affecting interstate commerce. 18 U.S.C. § 844(i). The Supreme Court recently clarified in Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), that the qualifying words "used in" signaled that Congress did not invoke its full authority under the Commerce Clause. Id. at 1909-10. Section 844(i) does not cover the destruction of buildings whose damage might affect interstate commerce. Id. at 1910. Rather § 844(i) is limited to buildings used in interstate commerce. Id. Therefore, § 844(i) requires the government to prove that St. Joseph's Church was used in interstate commerce or an activity affecting interstate commerce.

The Jones court set forth the method to determine whether damage or destruction of a building is properly prosecutable under § 844(i). Id. The proper inquiry "is into the function of the building itself, and then a determination of whether that function affects interstate commerce." Id. (quoting United States v. Ryan, 9 F.3d 660, 675 (8th Cir.1993) (Arnold, C.J., concurring in part and dissenting in part)). This determination involves a three-part inquiry: (1) What is the function of the building? (2) Is the function of the building involved in commerce? (3) Does the commerce in which the building is involved sufficiently affect interstate commerce?

1. Function of the Building

There is no dispute that building owned by St. Joseph's Church functioned as a church. The congregation used this building for regular worship services one Sunday a month, Sunday school classes on a weekly basis and Bible studies and prayer meetings one night each week. Additionally, regular choir practices and occasional funerals were held in the church. To enable the church to perform these functions, St. Joseph's Church (1) purchased one Bible, three hymnals and an unspecified number of Sunday School materials from the National Baptist Publishing Board in Tennessee; (2) used natural gas that originated in Mississippi; (3) received donations from out-of-state; and (4) paid dues to an intrastate organization which in turn was part of an interstate organization.

2. Involvement in Commerce

The legislative history of § 844(i) reveals that the statute was crafted specifically to include some non-business property such as police stations and churches. Russell v. United States, 471 U.S. 858, 860, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985). While § 844(i) excludes no particular type of building, the property must be "actively employ[ed] for commercial purposes." Jones, 120 S.Ct. at 1910. The question here is whether St. Joseph's Church was sufficiently involved in interstate commerce so that the destruction of this church is covered by § 844(i).

Churches are not commonly considered a business enterprise; nonetheless, churches can and do engage in commerce. The "business" or "commerce" of a church involves the solicitation and receipt of donations, and the provision of spiritual, social,...