U.S. v. Rea

• Decision Date: 26 August 2002
• Docket Number: No. 01-2177.,01-2177.
• Citation: 300 F.3d 952
• Parties: UNITED STATES of America, Appellee, v. Harvey Andrew REA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 952

300 F.3d 952

UNITED STATES of America, Appellee, v. Harvey Andrew REA, Appellant.

No. 01-2177.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2001.

Filed: August 26, 2002.

COPYRIGHT MATERIAL OMITTED

James E. Ostgard, argued, Minneapolis, MN, for appellant.

D. Gerald Wilhelm, argued, Minneapolis, MN, for appellee.

Before: HANSEN,¹ Chief Judge, HEANEY and MURPHY, Circuit Judges.

HANSEN, Circuit Judge.

Harvey Rea appeals his conviction for conspiracy to commit arson in violation of 18 U.S.C. §§ 844(i) and 371. Rea argues that the district court erred in denying his motion to dismiss for prior jeopardy. Rea also argues that the district court erred in reinstating his conviction because even after the evidentiary hearing, the evidence did not demonstrate that the church annex he damaged was "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce," an element of 18 U.S.C. § 844(i) (1994). We affirm in part and reverse in part.

I.

This is the third time that Rea has been before this court. We have articulated the facts giving rise to his conviction on two prior occasions, see United States v. Rea, 169 F.3d 1111 (8th Cir.1998) (Rea I), vacated by 530 U.S. 1201, 120 S.Ct. 2193, 147 L.Ed.2d 230 (2000); United States v. Rea, 223 F.3d 741 (8th Cir.2000) (Rea II), and we see no need to discuss them at any great length here. To summarize, in the middle of the night, while in the process of stealing computers from the St. James A.M.E. Church annex in Minneapolis, Minnesota, Rea and his brother, Jeremy, set fire to the annex to destroy any incriminating evidence that they might have left behind. There is nothing in the record which indicates that Rea acted with any racial or religious animus in deciding to burglarize and burn the church annex. The authorities apprehended Rea, and he entered a conditional guilty plea.

The conditional plea agreement provided that Rea would plead guilty to conspiracy to commit arson, in violation of 18 U.S.C. §§ 371 and 844(i), but that he "reserved the right to appeal the district court's denial of his motions to dismiss the indictment for lack of subject matter jurisdiction or, in the alternative, to enter a judgment of acquittal." Rea I, 169 F.3d at 1112. In his first appeal, Rea argued that the district court lacked jurisdiction to enter a judgment of conviction because the annex was neither used in nor affected interstate commerce. We rejected Rea's jurisdictional argument, noting that "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." Id. at 1113. We then construed Rea's jurisdictional argument to be "that the facts to which he pleaded guilty [were] not sufficient to demonstrate that the Church annex was used in interstate commerce or in any activity affecting interstate commerce." Id. At the time of Rea's first appeal, we had concluded that "`[i]n enacting section 844(i), Congress intended to exercise its full power under the Commerce Clause'" and that "`section 844(i) reaches arson of any property having even a de minimis connection to interstate commerce.'" Id. (quoting United States v. Ryan, 41 F.3d 361, 364 (8th Cir.1994) (en banc), cert. denied, 514 U.S. 1082, 115 S.Ct. 1793, 131 L.Ed.2d 721 (1995)). This standard was generally easily satisfied, and we concluded that there was a sufficient factual basis supporting the guilty plea and sustained Rea's conviction. Rea I, 169 F.3d at 1113. We reversed and remanded the sentencing order to allow the district court to reconsider the restitution payment schedule. Id. at 1114.

Before the district court could reconsider the restitution order, the Supreme Court granted Rea's petition for writ of certiorari. Rea v. United States, 530 U.S. 1201, 120 S.Ct. 2193, 147 L.Ed.2d 230 (2000). The Court vacated our judgment in Rea I and remanded the case back to us for further consideration in light of Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). Jones held that an owner-occupied residence not used for any commercial purpose did not fall within the scope of 18 U.S.C. § 844(i). Jones, 529 U.S. at 852, 120 S.Ct. 1904. On remand, we recognized that Jones "substantially changed the law of the Eighth Circuit regarding the reach of § 844(i)." Rea II, 223 F.3d at 743. "[B]ecause of insufficient fact finding at the district court level on the issue of the Church annex's commercial connection, we [were] unable to determine from the record whether the Church annex [met] the requirements mandated by Jones." Id. at 744. Therefore, we reversed Rea's conviction and remanded the case to the district court to determine whether there was a sufficient factual basis to support the plea agreement.

On remand, Rea argued that the Double Jeopardy Clause forbade any further proceedings in his case. The district court rejected Rea's argument and held an evidentiary hearing concerning the church annex's relationship to and effect on interstate commerce. The district court concluded that there was a sufficient nexus between the annex and interstate commerce to support the guilty plea and reinstated Rea's conviction. United States v. Rea, No. 97-235, 2001 WL 407238 (D.Minn. April 18, 2001). Rea timely filed a notice of appeal and now presents both the double jeopardy and interstate commerce arguments for us to resolve.

II.

We review de novo the district court's denial of Rea's motion to dismiss the indictment on double jeopardy grounds. United States v. Bennett, 44 F.3d 1364, 1368 (8th Cir.), cert. denied, 515 U.S. 1123, 115 S.Ct. 2279, 132 L.Ed.2d 282 (1995). The Fifth Amendment provides that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb...." U.S. Const. amend. V. The Fifth Amendment guarantee against double jeopardy consists of three constitutional protections. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (footnotes omitted), overruled in part by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

Although the Double Jeopardy Clause bars successive prosecutions, it "is not an absolute bar to successive trials." Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984). The constitutional prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside because of trial error in the proceedings leading to conviction. Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988); United States v. Ball, 163 U.S. 662, 671-72, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Because the Fifth Amendment protects defendants from a second or double jeopardy only after the initial jeopardy has attached and terminated, Satter v. Leapley, 977 F.2d 1259, 1263 (8th Cir.1992), it is implicit in the rule permitting retrial after a reversal of a conviction for trial error that jeopardy has never been terminated but instead continues, Justices of Boston, 466 U.S. at 308, 104 S.Ct. 1805. The "continuing jeopardy" principle applies where the "criminal proceedings against an accused have not run their full course." Price v. Georgia, 398 U.S. 323, 326, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). The rule permitting further proceedings after reversal of a conviction advances the "sound administration of justice." United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964). Such a rule balances society's interest in punishing the criminal and the criminal's interest in receiving fair process. See Id. (stating that it is "doubtful that appellate courts would be as zealous" in correcting error "if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution").

The Fifth Amendment does bar, however, successive prosecutions for the same offense following an unreversed conviction or a judgment of acquittal, whether express or implied. Justices of Boston, 466 U.S. at 308-09, 104 S.Ct. 1805. These events are said to terminate the original jeopardy, thereby precluding the initiation of a second or double jeopardy. Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984) ("[T]he protection of the Double Jeopardy Clause by its terms applies only if there has been some event ... which terminates the original jeopardy."). Likewise, an unreversed determination by a reviewing court that the evidence was legally insufficient to sustain the conviction terminates the initial jeopardy and precludes any further prosecution. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). This rule is justified on the grounds that "[a]n appellate court's finding of insufficient evidence to convict on appeal from a judgment of conviction is, for double jeopardy purposes, the equivalent of an acquittal." Satter, 977 F.2d at 1263. When a reviewing court determines that there is insufficient evidence to support a conviction, then it has decided as a matter of law that the case should not have been submitted to a jury, and that no jury could have properly returned a guilty verdict. Burks, 437 U.S. at 16, 98 S.Ct. 2141. As such, the only just remedy is direction for judgment of acquittal. Id. at 18, 98 S.Ct. 2141.

Rea argues that jeopardy attached at his change of plea hearing held on November 12, 1997. He further argues that because the parties had agreed to a bench trial, and because he had filed a motion to dismiss the indictment or in the alternative a motion to acquit, then the change of plea hearing was, in...