U.S. v. Rayborn

• Decision Date: 06 December 2002
• Docket Number: No. 01-5632.,01-5632.
• Citation: 312 F.3d 229
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gerald RAYBORN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

312 F.3d 229

UNITED STATES of America, Plaintiff-Appellant, v. Gerald RAYBORN, Defendant-Appellee.

No. 01-5632.

United States Court of Appeals, Sixth Circuit.

Argued: October 31, 2002.

Decided and Filed: December 6, 2002.

COPYRIGHT MATERIAL OMITTED

Kevin P. Whitmore, Asst. U.S. Atty., U.S Attorney's Office, Memphis, TN, Linda F. Thome (argued and briefed), United States Department of Justice, Washington, DC, for Plaintiff-Appellant.

A.C. Wharton, Jr. (argued and briefed), Wharton & Wharton & Associates, Memphis, TN, James R. Garts, Jr. (briefed), James D. Wilson (briefed), Harris, Shelton, Dunlap, Cobb & Ryder, Memphis, TN, for Defendant-Appellee.

Before MERRITT and GILMAN, Circuit Judges; TARNOW, District Judge.^*

MERRITT, J., delivered the opinion of the court, in which TARNOW, D.J., joined. GILMAN, J. (p. 236), delivered a separate concurring opinion.

OPINION

MERRITT, Circuit Judge.

In this case, the United States appeals the order dismissing Defendant Gerald Rayborn's indictment for arson under 18 U.S.C. § 844(i). The district court found that it lacked subject matter jurisdiction over the matter because it concluded that, as applied to the circumstances of the case, § 844(i) constitutes an unconstitutional extension of Congress's commerce power. The court believed its decision was compelled by the decisions of the Supreme Court in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000).

To the extent the district court dismissed the arson count for lack of subject matter jurisdiction, its conclusion was erroneous. The district court misconstrued language from the opinion of this court in United States v. Sherlin, 67 F.3d 1208, 1213-14 (6th Cir.1995). In that case, this court contrasted § 844(i) with the Gun Free School Zones Act of 1990, the statute at issue in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), noting that "[u]nlike the unconstitutional statute in Lopez, 18 U.S.C. § 844(i) does contain a jurisdictional element, which ensures, through proper inquiry, that the arson in question affects interstate commerce." Id.

Although the interstate commerce requirement is frequently called the "jurisdictional element," it is simply one of the essential elements of § 844(i). 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. See United States v. Martin, 147 F.3d 529, 531-32 (7th Cir. 1998) (citations omitted); United States v. Rea, 169 F.3d 1111, 1113 (8th Cir.1999), vacated and remanded on other grounds, 223 F.3d 741 (8th Cir.2000) ("Section 844(i)'s `interstate commerce' requirement, while jurisdictional in nature, is merely an element of the offense, not a prerequisite to subject matter jurisdiction."); United States v. Carr, 271 F.3d 172, 178 (5th Cir.2001).

Although this court typically vacates a dismissal order when it determines that a district court has erred in dismissing a case for lack of subject matter jurisdiction, the district court in this case undertook an evaluation of the merits of the interstate commerce question under the guise of subject matter jurisdiction. Furthermore, the facts are before the court via stipulation and the evidentiary hearing in the court below. We therefore will undertake a further consideration of the interstate commerce requirement.

Defendant Gerald Rayborn is the pastor of New Mount Sinai Missionary Baptist Church in Memphis, Tennessee. On August 25, 1998, the church building was destroyed by fire. On December 16, 1999, Rayborn was indicted in connection with the arson. Count 1 of the indictment charged a violation of 18 U.S.C. § 844(i).¹ Counts 2 and 3 charged violations of 18 U.S.C. § 1341 (mail fraud). The indictment alleged that Rayborn had set fire to the church building as part of a scheme to defraud the insurance company that held the casualty policy on the church building.

In his motion to dismiss the § 844(i) count of the indictment, Rayborn argued (1) that the indictment was defective because the church building was not used in interstate commerce or in an activity affecting interstate commerce and (2) that Congress had exceeded its authority in enacting section 844(i). Upon recommendation of the magistrate judge, the district court initially denied the motion, finding that whether the evidence was sufficient to establish the interstate commerce element of the offense was a matter to be determined after the presentation of evidence at trial. The defendant filed a motion to reconsider and, upon reconsideration, the district court dismissed the § 844(i) count on the jurisdictional ground discussed above.

Next, the Government filed a motion to reconsider and a motion for an evidentiary hearing to establish the requisite connection to interstate commerce. The court granted the motion for an evidentiary hearing, which was held on February 7, 2001. On April 17, 2001, the district court denied the government's motion for reconsideration and the government appeals from that order.

Defendant Rayborn urges us to affirm the dismissal of the arson count from his indictment. He contends that because the church was not actively employed for a commercial purpose, § 844(i) does not apply to the present case. Defendant does not argue that churches should never be permitted to fall within the statute's ambit. Instead, Rayborn argues that to find that this church's activities invoke the provisions of the statute would impermissibly extend the scope of § 844(i).

In Jones v. United States, the Supreme Court held that § 844(i) did not reach the arson of an owner-occupied private residence. 529 U.S. 848, 859, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). The Court stated that the qualifying words "used in" signaled Congress's intent not "to invoke its full authority under the Commerce Clause." Id. at 854, 120 S.Ct. 1904. The presence of a jurisdictional element in § 844(i) enabled the Court in Jones to avoid the constitutional Commerce Clause analysis mandated by Lopez. See id. 120 S.Ct. at 1912.

Jones established a two-part inquiry to determine whether a building fits within the strictures of § 844(i). First, courts must inquire "into the function of the building itself." Id. at 854, 120 S.Ct. 1904. Second, courts should determine whether that function "affects interstate commerce." Id. Because § 844(i) does not invoke Congress's full authority under the Commerce Clause, the Court explained that the qualification "`used' in an activity affecting commerce" is "most sensibly read to mean active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." Id. at 855, 120 S.Ct. 1904. As a result, the Court concluded that the facts asserted by the government — use of the dwelling as collateral for a mortgage from an out-of-state lender, the use of the dwelling to obtain an out-of-state insurance policy, and the use of the dwelling to receive natural gas from sources outside the state — would not bring the private home within the terms of § 844(i). See id.

In Jones, the Court also recognized that the legislation ultimately enacted as § 844(i) initially required that the building be used "for business purposes," but the qualifier was deleted in response to members who believed the statute should protect "schools, police stations, and places of worship." Id. at 853-54 n. 5, 120 S.Ct. 1904 (citing Russell v. United States, 471 U.S. 858, 860-61, 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." Id.

For purposes of the function analysis, the building's function is not limited to its primary use. Numerous court decisions support the idea that a building can have more than one function. For example, in Jones, the Supreme Court noted twice that the private home at issue in that case was used only as a residence and not also as a home office or in some other commercial enterprise. See id. at 856, 120 S.Ct. 1904. Other circuits have analyzed primary and secondary functions of church buildings. See, e.g., United States v. Terry, 257 F.3d 366, 369 (4th Cir.2001).

In this case, however, the function analysis compels a conclusion that the building functioned as a church. While there were other activities in the building — such as radio broadcasts, gospel concerts, and free buffet breakfasts — none of these would support a finding that the building also served as, for example, a radio station, concert hall, or restaurant.

The conclusion that the function of the building was its use as a church does not end the inquiry. Instead, the court should turn to whether the church's activities affect interstate commerce. In Camps Newfound/Owatonna, Inc., v. Town of Harrison, 520 U.S. 564, 584, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997), the Supreme Court made clear that charitable and nonprofit entities are major participants in the interstate market for goods and services, using interstate communications and transportation, raising and distributing revenues (including voluntarily paid revenues) interstate. Indeed, "while churches are not commonly considered a business enterprise, 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, community, educational (religious or non-religious) and other charitable services." United States v. Odom, 252 F.3d 1289, 1294 (11th Cir.2001). In the Eleventh Circuit's view, the evidence proving that a church building is used in or affects interstate commerce must relate to these activities — i.e., "whereby it engages in activities relating to its `business' as a church." Id.

Turning then to an evaluation of the church's effects on interstate...