U.S. v. Williams, 01-3351.

Decision Date30 July 2002
Docket NumberNo. 01-3351.,01-3351.
Citation299 F.3d 250
PartiesUNITED STATES of America, v. Shawn P. WILLIAMS, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Christopher A. Feliciani, (argued), Berk, Whitehead, Kerr, Feliciani & Turin, Greensburg, PA, for appellant.

Bonnie R. Schlueter, (argued), Office of United States Attorney, Pittsburgh, PA, for appellee.

BEFORE: ROTH, RENDELL, ROSENN, Circuit Judges.

ROSENN, Circuit Judge.

The common law felony of arson was a crime "against another's habitation, not against another's property but against his life and safety at his place of abode." State v. Midgeley, 15 N.J. 574, 105 A.2d 844, 845 (N.J.1954). Historically, the states prosecuted the crime of arson not only under common law but also under statutes that expanded its reach. With the passage of the Anti-Arson Act of 1982, Pub.L. 97-298, 96 Stat. 1319 (1982), Congress stated clearly "that federal authorities will henceforth share responsibility with state officials to investigate and prosecute arson crimes." United States v. Gelb, 700 F.2d 875, 879 (2nd Cir.1983). Specifically, Congress enacted legislation making it a federal crime to maliciously damage or destroy by fire any building used in interstate commerce or in any activity affecting interstate commerce. 18 U.S.C. § 844(i).1 The primary issue raised on this appeal, one of first impression in this circuit, is whether the arson of a vacant building available for rent but not actually leased at the time of the fire sufficiently affects interstate commerce as to constitute a federal crime.

A jury in the United States District Court for the Western District of Pennsylvania convicted Shawn Williams of malicious destruction of property by fire in violation of § 844(i), and mail fraud in violation of 18 U.S.C. § 1341. The District Court sentenced Williams to 60 months' imprisonment followed by 60 months of supervised release on both counts, to run concurrently. The defendant timely appealed the judgment of conviction and sentence. We affirm.2

I.

In the early morning hours of September 23, 1998, a street sweeper smelled and saw smoke rising from the roof of the former state unemployment office on West Otterman Street (Otterman building) in Greensburg, Pennsylvania. Eventually, the fire department brought the fire under control and a fire investigator concluded that the fire had been intentionally set.

Police officer Paul Cyak found four fuel containers in the vacant Otterman building. One of the containers was a blue kerosene-type can with a Sheetz convenience store label with code numbers on it. The can had been delivered to Sheetz in New Stanton, Pennsylvania, late in the evening of September 22, 1998, and it was purchased at 1:32 a.m. on the morning of the fire. The New Stanton Sheetz store was located between Williams's home and the Otterman building.

Officer Cyak learned that in April 1998, Williams and Nat Lamolinara, his ex-business partner, acquired the building for $111,000. Williams and Lamolinara made a down payment of $11,000; Lhormer Realty held the remainder of the mortgage.

From April 1998 until the September 1998 arson, Williams displayed a large banner on the front of the building advertising its availability for rent. He also advertised the property for rent in a local newspaper. During that period, Lamolinara had on several occasions shown the building to potential tenants. Thomas, at Williams's behest, had also shown the building to Primestar-Excalibur (Primestar), a satellite television company with headquarters in Virginia.

On September 22, 1998, the evening before the Otterman building burned down, Primestar and Williams had negotiated the terms of an agreement to lease the building. Later that evening, Williams faxed the proposed lease to Louis Busato, Primestar's Northeast Regional Sales Manager, who then forwarded the lease to corporate headquarters. Upon corporate approval of the lease, it would have taken effect on September 25, 1998. During the weeks leading up to the arson, Primestar had stopped looking for other buildings because its "heart was set on this place." Busato planned on moving employees into the building within two to four days of signing the lease.

Although the purchase price for the building was $111,000, it was insured by Lebanon Mutual Insurance Company (Lebanon Mutual) for its replacement value at approximately $500,000. Lebanon Mutual settled Williams's claim, paying $336,000 to Williams and Lhormer Realty, holder of the mortgage. Lebanon Mutual also paid Williams another $64,000 for the cost of removing the debris from the land.

In due course, the Government charged Williams with and convicted him of malicious destruction of property by fire in violation of 18 U.S.C. § 844(i), and mail fraud in violation of 18 U.S.C. § 1341.

II.

Williams raises three issues on appeal: (1) there was insufficient evidence to satisfy § 844(i)'s affecting interstate commerce element; (2) the District Court's jury instruction was plain error; and (3) Congress's failure to provide a "safety valve" for first time offenders under § 844(i) violates the equal protection component of the Fifth Amendment's Due Process Clause. We now turn to the first issue and begin our discussion of the interstate commerce element of the offense.

A property's use in an activity affecting interstate commerce is an essential element of the crime of arson under 18 U.S.C. § 844(i). United States v. McGuire, 178 F.3d 203, 205 (3d Cir.1999). Like all elements of criminal offenses, the Government must prove the jurisdictional element beyond a reasonable doubt. Id. Williams argues that there was insufficient evidence to establish a sufficient connection between the Otterman building and interstate commerce.3 Because the jury convicted Williams, we review the evidence in the light most favorable to the Government and will sustain the verdict unless a rational juror could not have found that the Government proved the affecting interstate commerce element beyond a reasonable doubt. United States v. Dent, 149 F.3d 180, 187 (3d Cir.1998).

Williams asserts that the destruction by fire of a vacant building is "clearly a local activity" that is not the concern of the federal government. He, therefore, argues that according to United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), for such local activity to become a concern for the federal government, the activity must substantially affect commerce and that a property advertised for rent does not substantially affect commerce.

The federal arson statute, although it does not regulate commercial or economic activity, regulates the damage and destruction of business property that has the requisite interstate nexus. Lopez "did not purport to overrule cases upholding application of the Commerce Clause power to wholly intrastate activities satisfying the requisite nexus to interstate commerce." United States v. DiSanto, 86 F.3d 1238, 1245 (1st Cir.1996). And, as the United States Supreme Court noted in Lopez, the statute there did not contain a jurisdictional element that "would ensure, through case-by-case inquiry, that the [crime] in question affects interstate commerce." 514 U.S. at 561, 115 S.Ct. 1624. Here, however, the statute contains such an element. Accordingly, our analysis is governed by the Supreme Court's opinion in Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), which specifically addressed this aspect of § 844(i).

In Jones, the Court addressed the question of whether arson of an "owner-occupied private residence" falls within § 844(i)'s ambit. The Court held that arson of such a dwelling is not subject to federal prosecution under § 844(i). Id. at 850-51, 120 S.Ct. 1904. The Court noted that it had previously held in Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985), that § 844(i) applies to buildings used as rental property. Id. at 853, 120 S.Ct. 1904; Russell, 471 U.S. at 862, 105 S.Ct. 2455 ("By its terms... the statute only applies to property that is `used' in an `activity' that affects commerce. The rental of real estate is unquestionably such an activity."); accord Gaydos, 108 F.3d at 509 ("Russell established that renting real estate is an activity that affects interstate commerce for purposes of § 844(i)."). The dispositive factor in Russell was the owner's "renting his apartment building to tenants at the time he attempted to destroy it by fire." Jones, 529 U.S. at 853, 120 S.Ct. 1904 (internal quotations omitted). Accordingly, it followed that the building was being used in an activity affecting commerce within the meaning of § 844(i). Id.

The Jones Court contrasted Russell's facts with Jones's. The Court focused on § 844(i)'s use of the phrase "used in interstate or foreign commerce," finding that the key word is "used." Id. at 854, 120 S.Ct. 1904. The Court stated that Congress did not define § 844(i)'s crime as arson of a building whose damage might affect interstate commerce, but rather "require[d] that the damaged or destroyed property must itself have been used in commerce or in an activity affecting commerce." Id. (alteration in original) (internal quotations omitted).

Thus, the proper inquiry is an analysis of the "function of the building itself, and then a determination of whether that function affects interstate commerce." Id. (internal quotations omitted). The Court ruled that the word "used" 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. It held that private, owner-occupied residences are not used in activities affecting interstate commerce and that arson of such buildings therefore does not fall under § 844(i)'s reach. Id. at 856-58, 120 S.Ct. 1904.

In the instant case, Williams focuses on the Supreme Court's discussion regarding the word "used"...

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