United States v. Ajmal Aman , 480 F. App'x 221 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4121
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AJMAL A. AMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:10-cr-00236-TSE-1)
Argued: March 20, 2012 Decided: May 10, 2012
Before TRAXLER, Chief Judge, and DUNCAN and DAVIS, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew Alan Wartel, Alexandria, Virginia, for
Appellant. George Zachary Terwilliger, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ajmal Aman appeals from his conviction for arson, see 18
U.S.C. § 844(i), arguing that the application of § 844(i) to his
conduct exceeds the federal government’s authority under the
Commerce Clause. We find Aman’s argument unpersuasive, and we
affirm his conviction and sentence.
I.
Aman was one of several owners of Bridges Billiards and
Grill, a bar and restaurant located in Fairfax, Virginia.
Bridges occupied almost 10,000 square feet of leased space on
the first floor of a seven-story commercial office building that
housed more than seventy other businesses.
On November 1, 2009, an intentionally-set fire (started
through use of gasoline and lighter fluid as accelerants)
destroyed the restaurant’s office and damaged other parts of the
restaurant. Aman was alone in the restaurant when the fire
started. He fled the building and ran down the street to a
nearby fire station to report the fire. The fire had already
been reported, and a unit was on its way to the restaurant even
as Aman was pounding on the fire station door.
Aman made his way back to the Bridges parking lot and spoke
to Captain Gregory Rausch, one of the firefighters on the scene.
Aman told Rausch that he had been closing up the restaurant when
2
the fire started and that, in his rush to leave the building, he
had left his keys inside the restaurant. Rausch testified that
Aman strongly smelled of lighter fluid and that Aman’s clothes -
- an orange jumpsuit worn as a costume for the restaurant’s
Halloween party -- looked stiff and melted from the knees down.
While evaluating Aman for burns and other injuries, Rausch
noticed a large amount of cash stuffed into one of Aman’s boots.
A box containing bottles of lighter fluid, jugs of
gasoline, and Aman’s wallet, car keys, and cell phone was found
in the undamaged part of the restaurant. Another bottle of
lighter fluid was found in Aman’s car, Aman’s fingerprints were
found on some of the gasoline and lighter-fluid containers, and
grocery-store surveillance footage showed Aman buying multiple
bottles of lighter fluid in the days before the fire. Not
surprisingly, the jury found this evidence sufficient to convict
Aman of arson.
II.
Under § 844(i), it is a federal crime “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.” 18 U.S.C. § 844(i) (emphasis added). On
appeal, Aman argues that the operation of Bridges, a local bar
3
and restaurant serving a predominantly local customer base, did
not substantially affect interstate commerce, as he asserts is
required by United States v. Lopez, 514 U.S. 549 (1995). Aman
therefore contends that applying § 844(i) to his conduct exceeds
the government’s authority under the Commerce Clause and that
his conviction must be reversed. We disagree.
In Jones v. United States, 529 U.S. 848 (2000), the Supreme
Court held that “an owner-occupied residence not used for any
commercial purpose does not qualify as property ‘used in’
commerce or commerce-affecting activity,” as required by §
844(i), and that “arson of such a dwelling, therefore, is not
subject to federal prosecution under § 844(i).” Id. at 850-51.
The Court rejected the government’s claim that the house was
used in interstate activities because it was financed and
insured through out-of-state companies and received natural gas
from an out-of-state supplier. See id. at 855. The Court
explained:
Were we to adopt the Government’s expansive
interpretation of § 844(i), hardly a building in the
land would fall outside the federal statute’s domain.
Practically every building in our cities, towns, and
rural areas is constructed with supplies that have
moved in interstate commerce, served by utilities that
have an interstate connection, financed or insured by
enterprises that do business across state lines, or
bears some other trace of interstate commerce. If
such connections sufficed to trigger § 844(i), the
statute's limiting language, “used in” any commerce-
affecting activity, would have no office.
4
Id. at 857 (citation omitted). The Court instead concluded that
the statute’s jurisdictional hook -- the requirement that the
building itself be used in an activity affecting interstate
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. The Court explained that
by limiting federal arson prosecutions in this manner, the
constitutional question “brought to the fore in Lopez” could be
avoided. Id. at 858.
Aman’s constitutional challenge thus turns on whether the
property at issue in this case was actively employed for
commercial purposes at the time of the fire. If that standard
is met, then the connection to interstate commerce is
substantial enough to quell any Lopez-based concerns about the
propriety of the prosecution. See Jones, 529 U.S. at 858;
United States v. Patton, 451 F.3d 615, 633 (10th Cir. 2006)
(explaining that § 844(i)’s jurisdictional hook as interpreted
in Jones “serve[s] the purpose of limiting the statute to arson
cases where there really was a substantial and non-attenuated
effect on interstate commerce”).
“The Jones [C]ourt established a two-part inquiry to
determine whether a building fits within the strictures of §
844(i). First, courts must inquire ‘into the function of the
building itself.’ Second, courts must determine ‘whether that
5
function affects interstate commerce.’” United States v. Terry,
257 F.3d 366, 368-69 (4th Cir. 2001) (quoting Jones, 529 U.S. at
854). As we explain, whether the relevant “building” is the
seven-story office tower that houses the restaurant or simply
the restaurant itself, the function of that building affects
interstate commerce as a matter of law.
In Russell v. United States, 471 U.S. 858 (1985), the Court
held that where property is being rented to tenants at the time
of an arson, it is “unquestionably” being used in an activity
affecting commerce within the meaning of § 844(i). Id. at 862.
As the Court explained,
We need not rely on the connection between the market
for residential units and the interstate movement of
people to recognize that the local rental of an
apartment unit is merely an element of a much broader
commercial market in rental properties. The
congressional power to regulate the class of
activities that constitute the rental market for real
estate includes the power to regulate individual
activity within that class.
Id. (footnote and internal quotation marks omitted).
Like the two-unit apartment building in Russell, the 70-
tenant office building in this case was a part of the broad
commercial market in rental properties. The office building
thus was being actively employed in a commercial activity that
affects interstate commerce as a matter of law. See United
States v. Parsons, 993 F.2d 38, 40 (4th Cir. 1993) (“[T]he plain
language of Russell controls. If the house was ‘rental
6
property’ at the time of the arson, it was used in an activity
that affects interstate commerce, and Parsons’ conduct was
within the statute.”); see also United States v. Guzman, 603
F.3d 99, 109 (1st Cir.) (“The rule in this circuit is that
rental property is per se sufficiently connected to interstate
commerce to confer federal jurisdiction under Section 844(i).”
(internal quotation marks omitted)), cert. denied, 131 S. Ct.
487 (2010); United States v. Iodice, 525 F.3d 179, 183 n.2 (2d
Cir. 2008) (concluding that Russell established a per se rule
that rental property is property used in an activity affecting
interstate commerce).
We would reach the same conclusion even if we disregarded
the rental-property aspects of this case and viewed the
restaurant itself as the only relevant building. Bridges was
operating as a bar and restaurant at the time of the fire, and
that commercial use of the property is enough to establish the
necessary connection to interstate commerce. See Terry, 257
F.3d at 370-71 (finding commercial daycare center operated
inside church building sufficient to bring church building
within the scope of § 844(i): “In both Russell and in the case
at bar, the commercial use of the property brings the building
within § 844(i)’s jurisdictional nexus.”); see also United
States v. Soy, 413 F.3d 594, 603-04 (7th Cir. 2005) (“[T]he per
se rule set forth in Russell applies equally to restaurants and
7
bars, and, consequently, buildings housing these establishments
are ‘used in’ interstate commerce for purposes of § 844(i).”);
United States v. Joyner, 201 F.3d 61, 79 (2d Cir. 2000)
(“Russell mandates the adoption of a similar per se rule
regarding bars or restaurants.”); United States v. Serang, 156
F.3d 910, 913-14 (9th Cir. 1998) (“A restaurant is clearly
commercial property. . . . As a commercial enterprise, it had a
per se substantial effect on interstate commerce and is subject
to regulation by Congress in § 844(i).”).
The evidence presented at trial was more than sufficient to
establish the critical “jurisdictional” facts -- that Bridges at
the time of the fire was an active bar and restaurant operating
out of leased space in a commercial office building. Aman does
not dispute the sufficiency of this evidence, and he
acknowledges that Bridges was “an overtly commercial
establishment.” Brief of Appellant at 14. Aman insists,
however, that “[s]imply engaging in business does not ipso facto
create a substantial [e]ffect on commerce. Otherwise, limits
[on] Congress’ authority would collapse into a rule that allowed
federal jurisdiction over all commerce.” Id. Again we
disagree.
Aman’s argument in this regard is premised entirely on
Lopez; Aman does not discuss (or even cite) Jones or Russell in
his brief. Although Russell was decided well before the Court
8
issued its opinion in Lopez, the Court effectively re-affirmed
Russell’s holding in Jones. See Jones, 529 U.S. at 856-57.
Moreover, the Jones Court explained that its construction of §
844(i) was “reinforced by” its opinion in Lopez, id. at 851, and
that the statute raises no Lopez concerns so long as it is
applied only to arson of property that was actively employed for
commercial purposes, see id. at 857-58. Aman may well believe
that the active-employment-for-commercial-purposes standard in
fact is inconsistent with Lopez, but that is a matter for the
Supreme Court, not this court. See United States v. Young, 609
F.3d 348, 356 (4th Cir. 2010).
III.
Because the operation of a restaurant in a leased space is
an activity that affects interstate commerce, we reject Aman’s
claim that the application of § 844(i) to his conduct exceeds
the federal government’s authority under the Commerce Clause.
Accordingly, we hereby affirm Aman’s conviction and sentence.
AFFIRMED
9