United States v. Belcher, Crim. No. 83-00073-01-R.

Citation577 F. Supp. 1241
Decision Date02 December 1983
Docket NumberCrim. No. 83-00073-01-R.
CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
PartiesUNITED STATES of America v. Donald McArthur BELCHER.

577 F. Supp. 1241

Donald McArthur BELCHER.

Crim. No. 83-00073-01-R.

United States District Court, E.D. Virginia, Richmond Division.

December 2, 1983.

577 F. Supp. 1242

Gregory Welsh, Asst. U.S. Atty., Richmond, Va., for plaintiff.

Lawrence D. Diehl, Petersburg, Va., for defendant.


WARRINER, District Judge.


Defendant Belcher has been charged with criminally setting fire to a restaurant in Colonial Heights, Virginia, known as Eaden's Creative Cookery. He has moved to dismiss the indictment since, he claims, the statute, 18 U.S.C. § 844(i),1 was not offended. The building was closed for repair at the time of the fire and hence, he argues, was not "used in interstate ... commerce." Thus, the threshold question that must be addressed is whether this Court, under the aegis of 18 U.S.C. § 844(i), has subject matter jurisdiction over the arson charged. Although the Anti-Arson Act of 1982 expanded federal jurisdiction from commercial property destroyed by bombings and explosions to include that destroyed by fire, there still remained the restriction that there be a nexus between the property destroyed and interstate or foreign commerce sufficient to create federal jurisdiction.

To defendant's argument the United States responds that a mere hiatus of business or active trade is insufficient to break the nexus of destroyed property to interstate commerce on which federal jurisdiction is grounded. Both parties support their motions by much the same case law, but differ as to its interpretation.

In United States v. Grossman, 608 F.2d 534 (4th Cir.1979), the only Fourth Circuit case to treat the jurisdictional reach of 18 U.S.C. § 844(i), two defendants were charged with conspiracy to violate 18 U.S.C. § 844(i). The property they intended

577 F. Supp. 1243
to destroy, a backhoe, had been manufactured in Iowa, sold and shipped to an equipment company in Virginia, then resold and shipped to a North Carolina construction company, whose guarantor on the purchase loan ultimately acquired the equipment. At the time of its destruction, the equipment was not being used in any business whatsoever, but it was the subject of an advertisement for sale in an out-of-State trade newspaper

Defendant takes the position that whether a building is "used in interstate commerce" depends "on its specific use ... at the time of the fire, rather than the other activities or channels of commerce connected to the building indirectly, such as construction, insurance, etc." Defendant's Memorandum in Support of Motion to Dismiss Indictment for Lack of Jurisdiction at p. 4.

Defendant argues that the "multiplicity of facts" presented to the Grossman court explains why that court found § 844(i) jurisdiction even though the backhoe was not being used in any sort of commerce at the moment of its destruction. This reasoning is persuasive but unconvincing. Defendant would have a contemporaneous connection with interstate commerce as the sine qua non of federal jurisdiction. Neither Grossman nor the other cases relied upon by defendant support this analysis. Indeed, the Fourth Circuit specifically rejected such a reading of § 844(i):

Upon appeal, the defendants contend that their convictions are void for lack of jurisdiction since the backhoe which they conspired to destroy was not `used in interstate ... commerce or in any activity affecting interstate commerce' as required by 18 U.S.C. § 844(i). Specifically, they argue that § 844(i) requires a contemporaneous connection without regard to past interstate movement. In this respect, appellants point out that the backhoe had been in the state of North Carolina continuously for two and one-half years prior to its destruction, and at the time was not being used ... in ... business. Emphasis added.

Grossman, at 536.

In addressing the question of what is necessary to satisfy the commerce requirement of § 844(i), the court was guided by earlier cases decided by the Seventh and Tenth Circuits2 and held:

We are in accord with the conclusion of these circuits that in using the words `affecting interstate commerce' Congress intended to exercise the full jurisdictional reach constitutionally permissible under the Commerce Clause. See also Scarborough v. United States, 431 U.S. 563, 571 97 S.Ct. 1963, 1967, 52 L.Ed.2d 582 ... (1977).
With the statutory breadth of § 844(i) in mind, we are of the opinion that the evidence in this case demonstrated a sufficient interstate nexus. As we have noted, the backhoe had been manufactured in Iowa and owned by two companies in Virginia prior to its shipment into North Carolina and was being held for sale to `anybody, anywhere' and advertised to that effect in a periodical published in the State of Tennessee. Accordingly, we hold that the district court properly exercised jurisdiction.

Grossman, at 537.

On 13 April 1983, a small kitchen fire had taken place, forcing Eaden's Creative Cookery temporarily to close. There is no indication that the restaurant was permanently discontinuing operations, and hence its connection with interstate commerce, anymore, for example, than there was evidence that the backhoe in Grossman was permanently being taken from the commercial stream. Indeed, analogous to that piece of equipment's being offered for sale out-of-State is that the restaurant was being repaired and cleaned in order to re-open as soon as possible.

The question that emerges is this: If contemporaneous connection with interstate

577 F. Supp. 1244
commerce be not requisite, just how many and what kind of connections with interstate commerce are needed to make out an offense under § 844(i)? Useful analysis in reaching an answer is provided in United States v. Mennuti, 487 F.Supp. 539, 543 (E.D.N.Y.1980). Relying on Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), the court enumerated three categories of criminal statutes based on commerce clause jurisdiction: 1) those regulating channels of commerce; 2) those regulating things or persons in commerce; and 3) those regulating activities affecting interstate commerce. 18 U.S.C. § 844(i)
applies only to destruction of interstate property ... with interstate property broadly defined to include property `used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.'

Applying this categorization of statutes to the holdings of Sweet, Schwanke, and Grossman, the court held that these cases stood for the proposition that:

(1) § 844(i) exercises the full jurisdictional reach constitutionally permissible under the commerce clause over interstate property; and
(2) § 844(i) extends to any property having a de minimis connection with interstate commerce.

Mennuti, at 544.

The Mennuti court then concluded that a private residence, even though built with interstate materials, financed by interstate banks, and insured by interstate insurance companies, was not within the intendment of § 844(i). It would be inaccurate to suggest that § 844(i) "intends to regulate all explosives after October, 1982, "fire or an explosive" having a `de minimis effect on commerce.'"

On appeal, the Second Circuit, in affirming, explained:

It would be altogether strained to say that such a dwelling, although not used in commerce is `used' in an activity affecting commerce. It is not enough under the statute that the quantum of commerce might differ if the building had never been built, were destroyed or were rebuilt. The critical word here is `used.' Congress did not define the crime described in § 844(i) as the explosion of a building whose damage or destruction might affect interstate commerce as we assume it could constitutionally have done. See generally Sterm, "The Commerce Clause Revisited — The Federalization of Intra-State Crime," 15 Ariz.L.Rev. 271 (1973). It chose to require that the damaged or destroyed property must itself have been used in commerce or in an activity affecting commerce.

United States v. Mennuti, 639 F.2d 107, 110 (2nd Cir.1981).

The Court is here faced with a building, commercial, not residential, in use, serving out-of-State alcohol to a chiefly local clientele, and using out-of-State supplies to help carry on this endeavor. As of April, 1983, the restaurant owners had procured an alcoholic beverage license and sold alcoholic beverages produced in other States and brought to Virginia in interstate commerce. In United States v. Sweet, 548 F.2d 198, 200 (7th Cir.1977), cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1977), the Court addressed the bombing of an admittedly local tavern, not "used in interstate or foreign commerce" and found the tavern's sale of out-of-State alcohol adequate to confer federal jurisdiction because such sale `affects' interstate commerce. In reaching its decision, the court looked carefully at the legislative history of § 844(i) and quoted from House Report No. 91-1549, Organized Crime Control Act of 1970, 1970 U.S.Code Cong. & Ad.News at pp. 4007, 4046:

Since the term affecting interstate or foreign `commerce' represents `the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause,' NLRB v. Reliance Fuel Corp. ... 371 U.S. 224 83 S.Ct. 312, 9 L.Ed.2d 279 ... (1963), this is a very broad provision covering substantially all business property. While this provision is broad, the committee believes that there is no question that
577 F. Supp. 1245
it is a permissible exercise of Congress' authority to regulate and to protect interstate and foreign commerce.

Relying on this history the court concluded:

The punishment in § 844(i) of the unlawful use of explosives in an intrastate activity, but which has an effect on interstate commerce although de minimis, is within the power of Congress to enact as an appropriate means to accomplish a legitimate end under the commerce power.

Sweet, at 202.

In addition to alcohol, the owners of Eaden's Creative...

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