USA. v. Terry

• Decision Date: 07 June 2001
• Docket Number: No. 00-4856,No. 00-4902,00-4856,00-4902
• Citation: 2001 WL 789160,257 F.3d 366
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. CURTIS LEE TERRY, Defendant-Appellee. UNITED STATES OF AMERICA, Plaintiff-Appellant, v. RONNIE WILLIAMS, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 366

257 F.3d 366 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. CURTIS LEE TERRY, Defendant-Appellee.

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. RONNIE WILLIAMS, Defendant-Appellee.

No. 00-4856 No. 00-4902

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: June 7, 2001

Decided: July 12, 2001

Appeals from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge.

COUNSEL ARGUED: Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellant. Arthur Charles Zeidman, FEDERAL PUBLIC DEFENDER'S OFFICE, Raleigh, North Carolina; David William Venable, Raleigh, North Carolina, for Appellees. ON BRIEF: Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellant. Thomas P. McNamara, Federal Public Defender, Raleigh, North Carolina, for Appellees.

Before WILKINSON, Chief Judge, and MICHAEL and KING, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Michael joined. Judge King wrote an opinion concurring in the judgment.

OPINION

WILKINSON, Chief Judge:

We must decide whether the First Baptist Church of Raleigh, North Carolina was sufficiently "used in" interstate commerce under 18 U.S.C. S 844(i) (1994) to make arson of the church a federal crime. Because the church building contained a daycare center with significant commercial characteristics, we hold that the building fits within the terms of the statute. See Jones v. United States, 529 U.S. 848 (2000).

I.

On September 7, 2000, a federal grand jury charged Curtis Lee Terry and Ronnie Williams with arson, in violation of 18 U.S.C. S 844(i), and conspiracy to violate S 844(i). The United States alleges that Terry and Williams set fire to the First Baptist Church on August 12, 2000. Because this case comes to us after a dismissal of the indictment by the district court, we must assume that all facts proffered by the government are true. See United States v. Lund, 853 F.2d 242, 244 n.1 (4th Cir. 1988).

The defendants started two fires in the church, one in the office of the daycare center and the other in an auditorium. Before starting the fires, the defendants broke into the office of the daycare center, and took blank checks which they drafted to themselves. Terry and Williams then burned the church "to cover evidence of the break-in."

The defendants moved to dismiss the indictment on the ground that the church identified in the indictment was not"used in" interstate commerce as required by S 844(i). At a hearing on the motion to dismiss, the United States conceded that the church building was first and foremost a place of worship. Nevertheless, the government presented the following evidence to show a nexus between the church and interstate commerce: the church employed and paid salaries to pastors, associate pastors, and a cleaning staff; some church employees had health insurance and retirement benefits administered through an annuity board of the Southern Baptist Convention, based in Dallas, Texas; the church was affiliated with the Cooperative Baptist Fellowship, based in Atlanta, Georgia; church members paid tithes to the church; the church had partnerships with organizations in other countries; the church subsidized charitable missions in various parts of the United States and internationally; the church provided food and clothing to members of the public; the church purchased bus tickets for needy persons; the church received Sunday school materials from a publisher in Macon, Georgia; the church hosted out-of-state speakers; and the church had out-of-state members.

The United States also presented evidence about a daycare center operating within the church building. The center was open from 7:30 a.m. to 5:30 p.m. daily. It occupied a main part of the church building. An organization independent of the church ran the daycare center. Parents who used the daycare center paid a monthly fee of $706. The daycare teachers were employed and paid by the center, not the church. The church did not collect rent from the daycare center. The daycare center did not make a profit.

The district court, for purposes of the motion to dismiss, assumed all these facts to be true. Nevertheless, the court dismissed the indictments against both Terry and Williams. The court stated that none of the facts proffered by the government established for purposes of S 844(i) that the building was used in interstate or foreign commerce, or in an activity affecting interstate or foreign commerce. The United States now appeals.^*

II.

Section 844(i) provides in pertinent part, "Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building . . . used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned." 18 U.S.C. S 844(i).

In Jones v. United States, 529 U.S. 848 (2000), the Supreme Court held that S 844(i) did not reach the arson of an owner-occupied private residence. See 529 U.S. at 859. Neither the use of the dwelling as collateral for a mortgage from an out-of-state lender, the use of the dwelling to obtain an out-of-state insurance policy, nor the use of the dwelling to receive natural gas from sources outside the state permitted the private home to fall within the terms ofS 844(i). Id. at 855. The Court stated that the qualifying words "used in" signaled Congress' intent not "to invoke its full authority under the Commerce Clause." Id. at 854.

The Jones court established a two-part inquiry to determine whether a building fits within the strictures ofS 844(i). First, courts must inquire "into the function of the building itself." Id. at 854 (internal quotations omitted). Second, courts must determine "whether that function affects interstate commerce." Id. (internal quotations omitted). Because S 844(i) does not invoke Congress' full authority under the Commerce Clause, the Court explained that the qualification "`used' in an activity affecting commerce" 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.

First, the church building had at least two functions. The unchallenged primary function of the building was religious in nature. The building operated as a house of worship. But the First Baptist Church was more than just a sanctuary. Rather, a secondary and important function of the building was to house the daycare center. The daycare center occupied a main part of the church building. It was open from 7:30 to 5:30 Monday through Friday. It employed its own teachers. It charged a fee of $706 per month.

The defendants argue, however, that the operation of the daycare center was not interstate commerce because the center was nothing more than a missionary outreach of the church. But it does not matter whether religion was one of the reasons or even the primary reason why the daycare center was located inside the church building. An activity can have both a religious aspect and an economic one. We cannot close our eyes to the commercial nature of an activity solely because non-commercial considerations also underlie it. A contrary rule would altogether prevent Congress from protecting places of worship from criminal misconduct, even when they served a plainly interstate commercial function.

The second step in the Jones analysis is to determine if the function of the building affects interstate commerce. This test requires "active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." Id. Thus, if either the religious function of the church or the daycare center affected interstate commerce under the terms of the statute, the indictment must be sustained.

The United States takes the view that the religious function of the building standing alone affected interstate commerce. It points to evidence such as the church's out-of-state members, the church's employees who received a wage for their efforts, the church's affiliation with the Cooperative Baptist Fellowship which was based in another state, the church's sponsorship of international missions, the church's purchase of Sunday school materials from an out-of-state supplier, and the church's refurbishing of homes from which it could reasonably be inferred that the church purchased building materials which in turn impacted the nationwide market for construction goods and services. What the United States urges us to do, however, is simply not necessary to decide this case. Not only is the government's position much broader than it needs to be, it would also create a circuit split on this issue. See United States v. Johnson, 246 F.3d 749 (5th Cir. 2001) (per curiam) (holding that a church with tenuous interstate commerce connections did not fit within S 844(i)).

The effect of the daycare center on interstate commerce is by itself dispositive here. The daycare center charged parents $706 per month to safekeep and teach their children during the day. The function of the daycare center was to provide child care services in exchange for payment. Contrary to the defendants' assertions the daycare center had more than a passing or passive connection to interstate commerce. Instead, the daycare center was actively engaged in commercial activity by participating in the market for childcare services. See Camps Newfound/Owatonna, Inc. v. Town of Harrison , 520 U.S. 564, 586 n.18 (1997) (noting a $16 billion "market in child day care services"). The daycare center was not removed from or passively connected to commerce. Rather, the operation of the daycare center was itself a commercial activity. Regardless of the religious organization's effect on interstate commerce, the daycare...