United States v. Johnson

• Decision Date: 02 August 2022
• Docket Number: s. 21-2730,21-2989
• Citation: 42 F.4th 743
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willie T. JOHNSON and Anessa R. Fierro, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

42 F.4th 743

UNITED STATES of America, Plaintiff-Appellee,

v.Willie T. JOHNSON and Anessa R. Fierro, Defendants-Appellants.

Nos. 21-2730

21-2989

United States Court of Appeals, Seventh Circuit.

Argued March 29, 2022

Decided August 2, 2022

Chadwick M. Elgersma, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.

Nathan Otis, Attorney, Nicholson, Gansner & Otis, S.C., Madison, WI, for Defendant-Appellant.

Before Flaum, St. Eve, and Jackson-Akiwumi, Circuit Judges.

Flaum, Circuit Judge.

Defendants-appellants Willie Johnson and Anessa Fierro were charged with arson under federal law after they participated in riots in Madison, Wisconsin, following the shooting of a Black man by a white police officer in Kenosha, Wisconsin. They moved to dismiss the indictment against them, arguing that the federal arson statute, 18 U.S.C. § 844(i), is unconstitutional because Congress overstepped its Commerce Clause authority when it enacted the provision. The district court denied the motion. Johnson and Fierro now appeal after entering into guilty pleas preserving that right. For the following reasons, we affirm the decision of the district court holding that 18 U.S.C. § 844(i) is constitutional.

I. Background

The offense conduct in this case was largely caught on camera and is not disputed. In the summer of 2020, Anessa Fierro and her boyfriend, Willie Johnson, were living at the YWCA homeless shelter in downtown Madison, Wisconsin. After a white Kenosha police officer shot Jacob Blake, a young Black man, protests and riots broke out in Madison in the early morning hours of August 25, 2020. Fierro and Johnson had been drinking that night, and they eventually joined the throng of protesters.

Fierro and Johnson retrieved a baseball bat and a can of gasoline from a family member's work van (which the pair had borrowed for the weekend) and followed the crowd. After a few blocks, they descended on an office building. Johnson used the baseball bat to strike the building's windows, and Fierro poured gasoline along the front of it. Johnson and others lit the gasoline, and there was a burst of flames. After the two left, others hurled lit Molotov cocktails into the building as well.

The mob walked across the street to a second building, which housed a jewelry store with apartments above it. Fierro poured what remained of the gasoline along the storefront. Both made brief attempts to light the gasoline using a cigarette lighter, but they were unsuccessful and fled when the police arrived shortly thereafter.

The pair were indicted by a grand jury under the federal arson statute, 18 U.S.C. § 844(i). That statute provides:

Whoever maliciously damages or destroys, or attempts to damage or destroy, 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 less than 5 years and not more than 20 years, fined under this title, or both ....

18 U.S.C. § 844(i). The defendants moved to dismiss the indictment, arguing that the federal arson statute is facially unconstitutional because its enactment exceeded Congress's authority under the Commerce Clause. See U.S. Const. art. I, § 8, cl. 3.

The district court denied the motion. In doing so, it applied the Supreme Court's Commerce Clause decisions in United States v. Lopez , 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), United States v. Morrison , 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Gonzales v. Raich , 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005), as well as Supreme Court decisions interpreting § 844(i) both before and after Lopez and Morrison ( Russell v. United States , 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985) and Jones v. United States , 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) ). The district court held that, as construed by the Supreme Court in Russell and Jones , the federal arson statute permissibly targets activities substantially affecting interstate commerce (as the Supreme Court explained that concept in Lopez, Morrison , and Raich ) due to its jurisdictional requirement that the target of the arson be "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." It further emphasized that no other circuit has invalidated the federal arson statute. Significantly, every court to consider the issue has concluded that the statute contains an adequate jurisdictional hook.

After the district court upheld the indictment, both defendants entered into conditional plea agreements that reserved their right to appeal the constitutional issue. The district court sentenced both Fierro and Johnson to the minimum term of five years' imprisonment, with three years of supervised release.¹ Fierro and Johnson now appeal.

II. Discussion

Fierro and Johnson concede that their conduct falls within the scope of 28 U.S.C. § 844(i), so we will sustain their convictions unless the statute is facially unconstitutional.

We review a district court's decision concerning the constitutionality of a statute de novo. United States v. Wilson , 73 F.3d 675, 678 (7th Cir. 1995). The task of "assessing the scope of Congress' authority under the Commerce Clause ... is a modest one." Raich , 545 U.S. at 22–23, 125 S.Ct. 2195. As the Supreme Court has instructed, "[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." Morrison , 529 U.S. at 607, 120 S.Ct. 1740 ; see also United States v. Harris , 106 U.S. 629, 635, 1 S.Ct. 601, 27 L.Ed. 290 (1883) (explaining that courts must "give effect to the presumption that congress will pass no act not within its constitutional power .... unless the lack of constitutional authority to pass an act in question is clearly demonstrated").

A. The Supreme Court's Commerce Clause Jurisprudence

Our analysis of § 844(i)'s constitutionality begins with Lopez , where the Supreme Court struck down a statute enacted pursuant to Congress's Commerce Clause power for the first time in over fifty years. The case involved the Gun-Free School Zones Act of 1990, Pub. L. 101-647 § 1702, in which "Congress made it a federal offense ‘for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.’ " Lopez , 514 U.S. at 551, 115 S.Ct. 1624 (quoting 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V))). The Supreme Court invalidated the statute because it "neither regulate[d] a commercial activity nor contain[ed] a requirement that the possession [of the firearm] be connected in any way to interstate commerce." Id.

In doing so, the Lopez Court identified "three broad categories of activity that Congress may regulate under its commerce power." Id. at 558, 115 S.Ct. 1624. "First, Congress may regulate the use of the channels of interstate commerce." Id. (citing Heart of Atlanta Motel, Inc. v. United States , 379 U.S. 241, 256, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) ; United States v. Darby , 312 U.S. 100, 114, 61 S.Ct. 451, 85 L.Ed. 609 (1941) ). "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." Id. (citing Shreveport Rate Cases , 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914) ; S. Ry. Co. v. United States , 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911) ; Perez v. United States , 402 U.S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971) ). "Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ... i.e. , those activities that substantially affect interstate commerce." Id. at 558–559, 115 S.Ct. 1624 (citing N.L.R.B. v. Jones & Laughlin Steel Corp. , 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937) ). Only the third category—activities having a substantial relation to interstate commerce—is relevant to this appeal.²

Next, in Morrison , the Supreme Court struck down 42 U.S.C. § 13981, which, as part of the Violence Against Women Act of 1994, Pub. L. No. 103-322 § 40302, provided a federal civil remedy for the victims of gender-motivated violence. 529 U.S. at 601–02, 120 S.Ct. 1740. The Court concluded that Congress exceeded its authority under the Commerce Clause when enacting § 13981 because "[t]he regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States." Id. at 618, 120 S.Ct. 1740.

In reaching that holding, the Supreme Court set forth four "significant considerations" relevant to determining whether a statute is permissible under the substantial effects category. 529 U.S. at 609, 120 S.Ct. 1740. First, a court must consider whether the statute regulates a commercial or economic activity. "Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." Id. at 610, 120 S.Ct. 1740 (quoting Lopez , 514 U.S. at 560, 115 S.Ct. 1624 ).

The second important consideration is whether the statute contains an "express jurisdictional element which might limit its reach to a discrete set of [activity] that [has] an explicit connection with or effect on interstate commerce." Id. at 611–12, 120 S.Ct. 1740 (quoting Lopez , 514 U.S. at 562, 115 S.Ct. 1624 ).

Third, a court should consider whether the statute or its legislative history contains express congressional findings regarding the effects of the activity on interstate commerce. Id. at 612, 120 S.Ct. 1740. "While Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce, ... the existence...