United States v. Denalli , 73 F.3d 328 ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 94-3067.
UNITED STATES of America, Plaintiff-Appellee,
v.
Raymond Joseph DENALLI, Defendant-Appellant.
Jan. 23, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 94-34-Cr-Orl-18), G. Kendall Sharp,
Judge.
Before HATCHETT and BIRCH, Circuit Judges, and GODBOLD, Senior
Circuit Judge.
PER CURIAM:
Raymond Denalli was convicted on all 21 counts of an
indictment, all of which sprang from indignities, outrages, and
fraudulent acts committed by Denalli. The victims were the
Federles, his next-door neighbors. When the neighbors were away
vacationing he entered their residence, poured gasoline throughout,
and set it on fire. Firefighters could not control the blaze. The
residence, and the Federles' cat, were destroyed.1 Denalli
questions only his conviction under Count 21, under the federal
1
A truck engaged in construction on the Federles' property
had passed over the edge of the Denallis' property. Thereafter
Denalli began his activities. He obtained a police scanner and
eavesdropped on the Federles' telephone conversations. He stole
credit cards and other documents from their home. He poured
gasoline throughout their garage, glued notes on the windshield
of their car, put glue in the car's door locks and placed a
corrosive solvent on the car that removed some of the paint. He
constructed a pipe bomb, connected it to his van, and called the
police reporting that Federle had affixed a bomb to his
automobile. He charged items to the credit cards he had stolen
and directed some of them be delivered to a post office box he
had rented in the Federles' name.
arson statute, which 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 ..., fined ..., or both.
18 U.S.C. § 844(i) (emphasis added). We hold that the evidence did
not satisfy the jurisdictional prerequisite of § 844(i), and we
reverse the conviction on Count 21 and remand for resentencing.
The federal arson statute expressly requires a jurisdictional
prerequisite as an essential element. Congress constructed the
statute to exercise the full reach of the federal commerce power.
Russell v. U.S., 471 U.S. 858, 105 S. Ct. 2455, 85 L. Ed. 2d 829
(1985).
The parties concede that the Federles' private residence was
not used in interstate or foreign commerce; therefore, this court
must only determine if the destruction of the residence affected
interstate or foreign commerce.
We review the sufficiency of evidence under the de novo
standard. U.S. v. Keller, 916 F.2d 628, 632 (11th Cir.1990), cert.
denied, 499 U.S. 978, 111 S. Ct. 1628, 113 L. Ed. 2d 724 (1991). We
must construe all evidence in a light most favorable to the
government, as it prevailed in the district court. U.S. v.
Johnson, 713 F.2d 633, 661 (11th Cir.1983), cert. denied, 465 U.S.
1081, 104 S. Ct. 1447, 79 L. Ed. 2d 766 (1984).
The Supreme Court recently considered the scope of federal
commerce power in U.S. v. Lopez, --- U.S. ----, 115 S. Ct. 1624, 131
L. Ed. 2d 626 (1995), where the Court considered the
constitutionality of the Gun-Free School Zone Act. Id. at ----,
115 S.Ct. at 1626. The Court examined Commerce Clause
jurisprudence and identified three categories of activity that
Congress could regulate under the commerce power.
First, Congress may regulate the use of the channels of
interstate commerce. 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.
Finally, Congress' commerce authority includes the power to
regulate those activities having a substantial relationship to
interstate commerce, those activities that substantially
affect interstate commerce.
Id. at ---- - ----, 115 S. Ct. at 1629-30 (citations omitted).
Congress' regulation of gun-free school zones did not involve the
first two categories of Commerce Clause regulation, so the Court
analyzed the third category. Id. at ----, 115 S.Ct. at 1630. The
Court concluded that the analysis under the third category must
determine "whether the regulated activity "substantially affects'
interstate commerce." Id.
The Court focused on the fact that the gun-free zone law was
a criminal statute2 that had nothing to do with commerce. Id. at
----, 115 S.Ct. at 1630-31. The Court found no substantial
connection between interstate commerce and the statute. Id. at ---
-, 115 S. Ct. at 1634. It held the Gun-Free School Zone Act
unconstitutional because Congress exceeded the scope of the federal
commerce power.
Lopez did not consider the federal arson statute at issue
2
One of the principal tenets of our federal system is that
the "States possess primary authority for defining and enforcing
the criminal law." Id. at ---- n. 3, 115 S. Ct. at 1631 n. 3;
Brecht v. Abrahamson, 507 U.S. 619, ----, 113 S. Ct. 1710, 1720,
123 L. Ed. 2d 353 (1993) (quoting Engle v. Isaac, 456 U.S. 107,
128, 102 S. Ct. 1558, 1572, 71 L. Ed. 2d 783 (1982)).
here, but it placed a limit on the federal commerce power. Justice
Bryer, dissenting, noted that the new restrictive reading of the
Commerce Clause could impact the analysis of the federal arson
statute. Id. at ----, 115 S.Ct. at 1664.
In U.S. v. Pappadopoulos, 64 F.3d 522 (9th Cir.1995), the
Ninth Circuit recently applied the Lopez rationale in a case
involving the federal arson statute. The Court concluded that the
federal arson statute was similar to the gun-free school zone
statute in that neither statute regulated commercial or economic
activity. Id. at 526-27. The court described the limit thatLopez
placed on the federal commerce power.
Lopez makes it clear that the Wickard [v. Filburn, 317 U.S.
111, 63 S. Ct. 82, 87 L. Ed. 122 (1942) ] line of cases "may not
be extended so as to embrace effects upon interstate commerce
so indirect and remote that to embrace them, in view of our
complex society, would effectually obliterate the distinction
between what is national and what is local and create a
completely centralized government."
Id. at 526-27. (quoting Lopez, --- U.S. at ---- - ----, 115 S. Ct.
at 1628-29). The Ninth Circuit held that the destruction of the
house did not affect interstate commerce, because the only
connection the house had to interstate commerce was a natural gas
line. Id. at 528-29.
Other courts have used Lopez to examine other federal criminal
statutes. See U.S. v. All Assets of G.P.S. Automotive Corp., 66
F.3d 483 (2d Cir.1995) ("And the Supreme Court's decision earlier
this year in U.S. v. Lopez, --- U.S. ----, 115 S. Ct. 1624, has
similarly revealed the Court's willingness to give serious and
renewed thought to issues of federalism at the foundation of our
constitutional system, and to do so in the context of the enormous
expansion of federal criminal law"). Contra U.S. v. Sherlin, 67
F.3d 1208, 1213-14 (6th Cir.1995) (in its jurisdictional analysis
under the federal arson statute the court distinguished Lopez by
concluding that the gun-free school zone law did not contain a
jurisdictional element.)3
Lopez required the government to prove that the destruction
of the Federles' private residence had a substantial effect on
interstate commerce. It failed to make this showing.
Federle was an electrical engineer for Harris Corporation, a
company that engaged in interstate and international business.
Harris worked on various projects for the Canadian government.
Federle maintained an office in his private residence equipped with
a personal computer, which he used about once a week to prepare
memoranda relating to his position at Harris. Harris did not
require Federle to maintain an office at home, and it did not
require him to create the memoranda at home. Federle's computer
was not linked to any Harris computer. It was not equipped with a
modem. It had no link to interstate phone lines or other
interstate connections. The memoranda were not incorporated by
disks or other electronic means to any Harris computers. Federle
would print the memoranda on his personal printer and physically
carry them to employees at Harris. He conducted no further
activity for Harris at his residence that affected interstate
commerce.
3
Lopez guided this court's analysis of the scope of the
commerce power when considering the constitutionality of the
Freedom of Access to Clinic Entrances Act in Cheffer v. Reno, 55
F.3d 1517, 1520 (11th Cir.1995).
The government contends that Federle's use of his computer
affected interstate commerce because the use concerned
international business. But the evidence did not prove any impact
of the memoranda on Harris' contract with the Canadian Government.
No substantial effect on interstate commerce was proved.
The conviction under Count 21 is REVERSED and the case
REMANDED for resentencing.