U.S. v. Ryan

• Decision Date: 31 October 1994
• Docket Number: No. 92-1357,92-1357
• Citation: 41 F.3d 361
• Parties: UNITED STATES of America, Appellee, v. Dale Lynn RYAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 361

41 F.3d 361

UNITED STATES of America, Appellee, v. Dale Lynn RYAN, Appellant.

No. 92-1357.

United States Court of Appeals,

Eighth Circuit.

Submitted March 8, 1994.

Decided Oct. 31, 1994.

Richard J. Lazarus, St. Louis, MO, argued (F. Thomas Schornhorst, on the brief), for appellant.

Robert Dopf, Asst. U.S. Atty., Des Moines, IA, argued (Linda R. Reade, on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON, Senior Circuit Judge, McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges, En Banc. ^*

WOLLMAN, Circuit Judge.

A divided panel of this court affirmed Dale Lynn Ryan's conviction of violating the federal arson statute, 18 U.S.C. Sec. 844(i). United States v. Ryan, 9 F.3d 660 (8th Cir.1993). We granted rehearing en banc and vacated the panel opinion. Having considered the issue raised by the suggestion for rehearing en banc, we now affirm, and we reinstate the panel opinion as to the other issues raised in Ryan's initial appeal.

I.

We recount only those facts relevant to the issue remaining in this case, referring the reader to the panel opinion for the facts giving rise to the charge against Ryan.

In January 1989, Ryan began managing the Ryan Fun and Fitness Center (the Fitness Center), a business located in West Burlington, Iowa, and owned by Ryan's father, Ronald D. Ryan, a Kansas resident. On December 6, 1989, after an unsuccessful year, Ryan's father ordered the Fitness Center closed. Ryan and his father then began efforts to sell the business. Ryan took a photographic inventory of the interior and had a real estate agent inspect the property for purposes of conducting a market value analysis. Ryan also removed his personal property from the building on December 26 in anticipation of a quick sale.

On January 1, 1990, fire engulfed the Fitness Center. Two volunteer fire fighters died fighting the blaze. A jury convicted Ryan of violating the federal arson statute, 18 U.S.C. Sec. 844(i), and the district court sentenced him to 328 months in prison. Ryan appealed, raising several issues. As set forth above, a divided panel of this court rejected all of Ryan's arguments and affirmed his conviction.

II.

Title 18, section 844(i) of the United States Code makes arson of any building or property used in interstate commerce or in any activity affecting interstate commerce a federal crime, providing:

Whoever maliciously damages or destroys ... by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both; ... and if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment as provided in section 34 of this title.

(emphasis added).

With respect to section 844(i)'s interstate commerce requirement, the district court gave the jury the following instruction:

"Interstate commerce" means trade, or business, or travel between the states. "Used in an activity affecting interstate commerce" means to affect in some way trade, or business, or travel between the states.

If you find from the evidence beyond a reasonable doubt that, on or about January 1, 1990, the Ryan Fun and Fitness Center building was owned by Ronald D. Ryan, a resident of Kansas, and leased by him to Ryan Air Services, Inc., a Kansas Corporation, then the required affect [sic] on interstate commerce has been proved; or if you find from the evidence beyond a reasonable doubt that on January 1, 1990, the Ryan Fun and Fitness Center building was supplied with natural gas used to heat the building, and such natural gas was supplied from outside of the state of Iowa, then the required affect [sic] on interstate commerce has been proved. If you do not so find, then the required affect [sic] on interstate commerce has not been proved and you must find the defendant not guilty.

Jury Instruction Number 10. Ryan argues that neither of the bases set forth in the instruction--the out-of-state ownership and lease agreement, and the supply of natural gas from an out-of-state source--satisfies section 844(i)'s interstate commerce nexus requirement.

Ryan did not object to this instruction at trial. Accordingly, we review the challenge to Instruction Number 10 under the plain error standard of review. Fed.R.Crim.Pro. 52(b); United States v. Olano, --- U.S. ----, ----, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). Ryan argues, however, that plain error review is inapplicable because the interstate commerce element of the offense also describes the basis for subject matter jurisdiction, which is not waivable and therefore may be raised at any stage of the proceeding.

Our cases have described the interstate commerce element of section 844(i) as constituting a jurisdictional predicate of the substantive offense. United States v. Voss, 787 F.2d 393, 396-97 (8th Cir.), cert. denied, 479 U.S. 888, 107 S.Ct. 286, 93 L.Ed.2d 261 (1986) (substantive element of offense also confers jurisdiction); see United States v. Mayberry, 896 F.2d 1117, 1119-20 (8th Cir.1990); United States v. Hansen, 755 F.2d 629, 630-31 (8th Cir.), cert. denied, 474 U.S. 834, 106 S.Ct. 105, 88 L.Ed.2d 85 (1985); United States v. Michaels, 726 F.2d 1307, 1309-10 (8th Cir.), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 38 (1984). See generally United States v. Bryant, 766 F.2d 370, 375 (8th Cir.1985) (noting that an interstate commerce nexus requirement "in criminal and civil statutes is most often for the purpose of conferring federal jurisdiction rather than of defining substantive elements of an offense"), cert. denied, 474 U.S. 1054, 106 S.Ct. 790, 88 L.Ed.2d 768 (1986). Other circuits also recognize this element of the crime of arson as the basis for jurisdiction under section 844(i). See United States v. Turner, 995 F.2d 1357, 1361-62 (6th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 282, 126 L.Ed.2d 232 (1993); United States v. Medeiros, 897 F.2d 13, 15-17 (1st Cir.1990); United States v. Doby, 872 F.2d 779, 780 (7th Cir.1989) (per curiam), aff'g 684 F.Supp. 558 (N.D.Ind.1988); United States v. Shockley, 741 F.2d 1306, 1307 (11th Cir.1984) (per curiam); United States v. Grossman, 608 F.2d 534, 535-37 (4th Cir.1979).

The district court had subject-matter jurisdiction in this case by virtue of the fact that Ryan was charged with an "offense against the United States." 18 U.S.C. Sec. 3231. The interstate commerce aspect of this case arises merely as an element of the section 844(i) offense. If that element is not satisfied, then Ryan is not guilty; but the court is not by the failure of proof on that element deprived of judicial jurisdiction. Ryan could have raised the question whether Congress had exceeded the power granted to it under the Commerce Clause--a question of legislative jurisdiction. Having not been raised, that constitutional question has no bearing on whether we have jurisdiction to proceed in this case.

III.

In enacting section 844(i), Congress intended to exercise its full power under the Commerce Clause of the Constitution. Russell v. United States, 471 U.S. 858, 859 & n. 4, 105 S.Ct. 2455, 2456 & n. 4, 85 L.Ed.2d 829 (1985); Mayberry, 896 F.2d at 1119-20. The statute is intended to protect all business property. Russell, 471 U.S. at 862, 105 S.Ct. at 2457; Mayberry, 896 F.2d at 1120. Indeed, section 844(i) reaches arson of any property having even a de minimis connection to interstate commerce. Mayberry, 896 F.2d at 1120; Voss, 787 F.2d at 397. This standard is easily met, even when the property is temporarily closed or vacant. Mayberry, 896 F.2d at 1120; United States v. Hermes, 847 F.2d 493, 496 (8th Cir.1988) (per curiam).

In Voss, while acknowledging the de minimis standard as sufficient to satisfy the statute, we recognized that limits do exist on the reach of section 844(i). 787 F.2d at 397-400. Although we held in Voss that the purchase of out-of-state insurance standing alone was insufficient, we recognized that there were additional facts in the record sufficient to satisfy the Russell standard under a proper jury instruction. Id. at 398.

Our subsequent cases have continued to acknowledge the expansive scope of section 844(i). Thus, we have held that section 844(i) extends to temporarily closed businesses. In Mayberry, we found that section 844(i) was applicable to a building containing a sawmill that had been out of operation for a month because of a lack of logs to cut. 896 F.2d at 1120. We noted that at the time of the fire the mill would have been operational had there been logs available to cut, that the mill still received electricity, and that there was an ongoing lease between the owner of the premises and the operator of the sawmill. Id. at 1119. All things considered, the sawmill still affected, and could affect, interstate commerce. Likewise in the present case, had there been a sufficient number of clients to serve at the Fitness Center, they could readily have been served in keeping with the nature of the property.

In Hermes, we found that an unleased commercial building was within the scope of section 844(i). 847 F.2d at 496. We noted that the owner of the property had advertised its availability for use and that the property was in fact available for commercial use. Id. We further stated that the fact that the building was not "occupied by a tenant does not detract from its character as commercial property." Id. The emphasis on the character of the property warrants note because it acknowledges the importance of the broader commercial market. As was true of the property in Hermes, the Fitness Center constituted property...