United States v. John Laton , 352 F.3d 286 ( 2003 )

MOORE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. SUTTON, J. (pp. 302-15), delivered a separate dissenting opinion.

OPINION

MOORE, Circuit Judge.

Local and state government institutions provide a wide variety of services ranging from transportation to economic development, which can produce ripples in the broader stream of interstate commerce to varying degrees. The general question presented by the relatively bizarre factual background of this case is whether or not a core function of municipal government— the provision of firefighting services — impacts interstate commerce such that an individual can be indicted under a federal anti-arson statute for destroying a fire station. The more precise question, upon which we dwell, is whether the Henning, Tennessee Fire Station was used in an activity affecting interstate commerce such that the person charged with setting it ablaze can be indicted under 18 U.S.C. § 844(i). We hold that this particular fire station was used in an activity affecting interstate commerce and accordingly REVERSE the judgment of the district court dismissing the indictment and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND FACTS AND PROCEDURE

Prometheus may have thought twice before handing down the gift of fire to humans had he imagined that those whom the mere mortals chose to steward the precious flame would use it to decimate the very mechanisms employed to control its power. We are faced with precisely such an odd event. On March 3, 2000, the Henning Fire Station (“HFS”) was destroyed by fire. Henning is a rural town in the western Tennessee county of Laud-erdale. It lies between Memphis and Dy-ersburg on U.S. Route 51 and is approximately twenty miles from the Mississippi River. On September 18, 2001, a federal grand jury indicted John Latón (“Latón”), the chief of the Henning Fire Department (“HFD”), on one count of arson in violation of 18 U.S.C. § 844(i), the federal anti-arson statute.

Latón subsequently moved to dismiss the indictment in October 2001, contending that the district court lacked subject .matter jurisdiction over the prosecution because the HFS was not used in an activity affecting interstate commerce. Both parties agreed upon and submitted to the court a set of stipulations, which established the relevant facts regarding the HFS and the HFD. First, the HFS housed firefighting equipment, including fire trucks, nozzles, uniforms, hoses, and other equipment. Additionally, the HFS contained an office, a kitchen, and meeting spaces for members of the HFD. Second, the HFD purchased most of its firefighting equipment from out-of-state vendors, and the HFD in the past relied upon out-of-state vendors for repairs to this equipment. Third, the HFD is responsible for responding to fire emergencies in Hen-ning, which, like any other town, contains residences, churches, public buildings, and businesses. In the past, the HFD has responded to various emergency calls involving several businesses in Henning, including a market and a laundry facility, the Henning Police Department, and vehicles in distress on U.S. Route 51 and at the U.S. Route 51 rest area. Fourth, when the HFD responds to fire calls outside of the Henning city limits, the HFD charges out-of-state insurance companies $500. Fifth, the volunteer firefighters who compose the HFD are paid wages by the City of Henning based upon the amount of time that they spend at a fire scene. The total wages paid to the firefighters generally does not exceed $1,000 per year. Sixth, the firefighting presence of the HFS and the HFD impacts insurance rates in Hen-ning. Virtually all American insurance companies use the Public Protection Classification (“PPC”) to calculate fire-insurance premiums in a particular area. The PPC is partially based upon the equipment, staffing, training, and geographic distribution of local fire departments. Fire insurance premiums in a community with a “good” PPC are considerably lower than in a community with a “bad” PPC, and insureds in an area that lacks fire services altogether will have the “worst” PPC and the highest premiums.

The district court granted Laton’s motion to dismiss on the ground that the HFS was not used in interstate commerce. United States v. Laton, 180 F.Supp.2d 948 (W.D.Tenn.2002). It focused its analysis on “whether the [HFS] was used in the activities of the [HFD], and whether those activities substantially affect interstate commerce.” Id. at 952. The court thus bifurcated the purposes of the HFS and the HFD, reasoning that it was “not significant that the [HFS] houses the trucks that drive to sites” of fires involving business or other instrumentalities of interstate commerce because “[t]his is too attenuated a series of connections to constitute a building that is used ‘in any activity’ ” that affects interstate commerce. Id. The district judge then ruled that the purchase of supplies from out of state, the payment of some wages to the firefighters, the fees billed for out-of-city fires, and the impact upon insurance rates did “not indicate any sort of active employment, but is again evidence of, at the very least, a passive connection.” Id. at 953. Accordingly, the court dismissed the indictment, because it ruled that it lacked subject matter jurisdiction over the case. Id.

The government timely appealed the district court’s ruling. We have jurisdiction to hear such an appeal pursuant to 18 U.S.C. § 3731. See id. (“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment....”). On review, we reject the reasoning of the district court, reverse its judgment dismissing the indictment, and remand for further proceedings consistent with this opinion.

II. ANALYSIS

A. Erroneous Dismissal for Lack of Subject Matter Jurisdiction

As a preliminary matter, we hold that the district court erred in dismissing the indictment based on the conclusion that it lacked subject matter jurisdiction. In United States v. Rayborn, 312 F.3d 229 (6th Cir.2002), which we decided after the district court’s decision in this case, we held that the interstate-commerce requirement “is simply one of the essential elements of § 844(i),” even though it is frequently denoted a “ ‘jurisdictional element.’ ” Id. at 231. We explained that “[i]t is not jurisdictional in the sense that it affects a court’s subject matter jurisdiction, i.e., a court’s constitutional or statutory power to adjudicate a case.” Id. The district court here, just like the district court in Raybom, did have subject matter jurisdiction over the indictment under 18 U.S.C. § 3231.

This does not end the appeal. We noted in Raybom that “this court typically vacates a dismissal order when it determines that a district court has erred in dismissing a case for lack of subject matter jurisdiction. ...” Rayborn, 312 F.3d at 232. Yet, Rayborn also instructs that when the district court “undertook an evaluation of the merits of the interstate commerce question under the guise of subject matter jurisdiction,” id., we are permitted to determine whether the evidence produced by the government (or in this case stipulated to by both parties) is sufficient to permit a rational jury to find that a particular building was used in an activity that affected interstate commerce such that the indictment can still stand. Id. at 235-36; see also United States v. Latouf, 132 F.3d 320, 325-26 (6th Cir.1997) (“The relevant inquiry when reviewing claims of insufficient evidence is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (internal quotations omitted)).

We follow Raybom’s lead and review the merits of the district court’s determination that the HFS was not used in an activity that affected interstate commerce. Because the inquiry into whether the HFS affects interstate commerce is a mixed question of fact and law, we review the district court’s determination de novo. United States v. Salvo, 133 F.3d 943, 948 (6th Cir.), cert. denied, 523 U.S. 1122, 118 S.Ct. 1805, 140 L.Ed.2d 943 (1998).

B. Section 844(i) and Its Applicability to Government Buildings and Property

We start with the plain language of the statute. Section 844(i) 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.... ” 18 U.S.C. § 844(i) (emphasis added).¹ The statute thus covers the arson of any building that is either used in interstate commerce or that is used in any activity affecting interstate commerce.²

Crimes of arson have traditionally been viewed as “paradigmatic common-law state crime[s],” but in 1982 Congress chose to federalize certain arson crimes as an exercise of its Commerce Clause power. Jones v. United States, 529 U.S. 848, 858, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000).³ In seeking to avoid “rendering] traditionally local criminal conduct a matter for federal enforcement,” Congress “will not be deemed to have significantly changed the federal-state balance” unless it clearly conveys its purpose. United States v. Bass, 404 U.S. 336, 349-50, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) (quoted in Jones, 529 U.S. at 858, 120 S.Ct. 1904).⁴ Additionally, when Congress fails to speak in clear and definite language, “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Jones, 529 U.S. at 858, 120 S.Ct. 1904 (quoting Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971)). Had Congress been ambiguous in its formulation of § 844(i), the rule of lenity might apply, but counter to the dissent’s belief that § 844(i) suffers from a lack of clarity, Congress made transparent its objective in passing § 844(i). It fashioned a statute that covered the arson of “any” building and included a jurisdictional element limiting its reach to buildings that are used in interstate commerce or in any activity affecting interstate commerce, such that § 844(i) was “intended to protect all business property, as well as some additional property that might not fit that description, but perhaps not every private home.” Russell v. United States, 471 U.S. 858, 862, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985).

We are mindful of our duty to construe a statute so as to eschew constitutional questions, and the straightforward application of the jurisdictional element here aids us in avoiding any such entanglements. The prominent issue raised by this appeal is not constitutional in scope, rather it is an exercise in statutory interpretation. In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Supreme Court remarked that the Gun-Free School Zones Act of 1990 (formerly 18 U.S.C. § 922(q)) “containfed] no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” Id. at 562, 115 S.Ct. 1624 (emphasis added). It distinguished § 922(q) from the former 18 U.S.C. § 1202(a), a statute examined in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), “which made it a crime for a felon to ‘receive, posses[s], or transport in commerce or affecting commerce ... any firearm,’ ” Lopez, 514 U.S at 561-62, 115 S.Ct. 1624 (emphasis added) (quoting Bass, 404 U.S. at 337, 92 S.Ct. 515). The Court wrote that “[ujnlike the statute in Bass, § 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.” Id. at 562, 115 S.Ct. 1624. Unlike § 922(q), § 844(i) does contain a jurisdictional element, and we accordingly follow the lead of previous post-Lopez decisions, which focus on interpreting the words of similarly phrased jurisdictional elements. See Rayborn, 312 F.3d at 232-33 (applying Jones’s two-part test to determine that the jurisdictional element in § 844(i) was satisfied and the prosecution could proceed); United States v. Riddle, 249 F.3d 529, 536 (6th Cir.2001) (RICO provision),18 U.S.C. § 1962(c); United States v. Napier, 233 F.3d 394, 400 (6th Cir.2000) (firearms provision governing those under domestic-violence court orders, 18 U.S.C. § 922(g)(8)); United States v. Smith, 182 F.3d 452, 456 (6th Cir.1999) (Hobbs Act, 18 U.S.C. § 1951); United States v. Ables, 167 F.3d 1021, 1030 (6th Cir.1999) (money laundering provision, 18 U.S.C. § 1956); United States v. Chesney, 86 F.3d 564, 568-70 (6th Cir.1996) (firearms provision governing convicted felons, 18 U.S.C. § 922(g)(1)). Our responsibility is to decide whether the government can demonstrate that the HFS was used in commerce or in an activity affecting commerce such that any rational juror could find that the jurisdictional element of the crime defined in the statute has been satisfied beyond a reasonable doubt.

On its face, § 844(i) does not distinguish between the arson of traditional for-profit business property, nonprofit organizations’ structures and equipment, or state and local government buildings and supplies,⁵ because the statute simply governs “any building, vehicle, or other real or personal property.” 18 U.S.C. § 844(i). There can be little doubt that virtually all edifices and personal property employed by for-profit businesses are both used in interstate commerce and used in activities that affect interstate commerce, as they primarily house and make possible the operation of businesses that buy, sell, manufacture, ship, and finance goods and services. Nonprofit institutions can also impact interstate commerce. The mere fact that a nonprofit organization differs from its for-profit cousins in its treatment of net earnings does not prevent its buildings or property from being used in interstate commerce or in an activity affecting interstate commerce. As the Supreme Court has explained, “[n]othing intrinsic to the nature of nonprofit entities prevents them from engaging in interstate commerce,” particularly because “they purchase goods and services in competitive markets, offer their facilities to a variety of patrons, and derive revenues from a variety of sources, some of which are local and some out of State.” Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 585-86, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997). Thus, as the Court stated, “[f]or purposes of Commerce Clause analysis, any categorical distinction between the activities of profit-making enterprises and not-for-profit entities is ... wholly illusory.” Id. at 586, 117 S.Ct. 1590.

Similarly, government institutions not only can affect interstate commerce but also can be direct participants in interstate commerce. The Supreme Court has noted on several occasions the impact that certain federal, state, and local government institutions can have on interstate commerce. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 537, 547-48, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) (holding that application of Fair Labor Standards Act (“FLSA”) to transportation employees employed by local government does not contravene the Commerce Clause because labor conditions of those employees affect interstate commerce).⁶ Governments in general, and individual government institutions in particular, can serve in both a sovereign/regulatory capacity and a market capacity, and their actions as either can affect interstate commerce. See Lehman v. City of Shaker Heights, 418 U.S. 298, 303, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (holding that a municipal transit vehicle is not a public forum for First Amendment purposes because “the city is engaged in commerce” and the advertising space in question “although incidental to the provision of public transportation, is part of a commercial venture”); United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (concluding that federal government acts as proprietor, and not as regulator, for First Amendment purposes when it operates the United States Post Office); Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992) (ruling that local government acts as a proprietor when it owns and operates an airport).

In their operations as a sovereign or as a regulator, governments may engage in interstate commerce or in activities that affect interstate commerce, even though the impetus for their actions is noncommercial because it is motivated by public service. See Garcia, 469 U.S. at 539, 105 S.Ct. 1005 (“The constitutional distinction between licensing drivers and regulating traffic ... or between operating a highway authority and operating a mental health facility, is elusive at best.”); United States v. Terry, 257 F.3d 366, 369 (4th Cir.2001) (“We cannot close our eyes to the commercial nature of an activity solely because non-commercial considerations also underlie it.”). In their function as market participants, governments inherently influence interstate commerce. See White v. Mass. Council of Constr. Employers, Inc., 460 U.S. 204, 207, 214, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983) (ruling that when a city government expends its own funds for construction of public projects, it can promote the employment of its own citizens, because it acts as “a market participant” and “there is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market” (quotation omitted)); Four T’s, Inc. v. Little Rock Mun. Airport Comm’n, 108 F.3d 909, 912 (8th Cir.1997) (defining a local airport commission, which operated the airport and charged concession fees from various vendors, as a market participant); Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1301 (3d Cir.1996) (“It is beyond dispute that state lotteries affect interstate commerce.”) (quoting The Lottery Case, 188 U.S. 321, 354, 23 S.Ct. 321, 47 L.Ed. 492 (1903) (“[LJottery tickets ... are subjects of commerce.”)).

The reality that the core functions of government are not exclusive of interstate commerce does not only hold true when a government operates a commercial enterprise, such as a post office, lottery, or liquor store. Government institutions also can affect interstate commerce when they provide core public services, such as police protection and emergency services.⁷ See Prickett v. DeKalb County, 92 F.Supp.2d 1357, 1362-63 (N.D.Ga.2000) (determining that labor practices of county fire department impact interstate commerce such that the FLSA applies to its employees); Persons v. City of Gresham, 704 F.Supp. 191, 193 (D.Ore.1988) (applying FLSA to municipal firefighters because the fire department responded to emergencies that involved instrumentalities of interstate commerce and protected businesses engaged in interstate commerce); Conway v. Takoma Park Volunteer Fire Dep’t, 666 F.Supp. 786, 791 (D.Md.1987) (same). One can imagine dozens of state and local government institutions that could be used in activities affecting interstate commerce, including but not limited to airports, seaports, convention centers, police departments auctioning off seized and forfeited property, health care centers, and departments of property management, economic development, and waste collection. Accordingly, Section § 844(i) has been invoked in the past to prosecute the arson of public buildings; for example, the Tenth Circuit affirmed the conviction under § 844(i) of the arsonist of a City Hall. United States v. Woodward, No. 93-3123, 1993 WL 498178 (10th Cir. Dec.2, 1993) (unpublished). The police department is not used in an activity affecting interstate commerce simply because it sells “I Support My Local Police Department” stickers, but to believe that such fundraising sales are the only way that a police building can be used in activities affecting interstate commerce naively ignores a police department’s role as reclaimer of stolen property moving between states, auctioneer of seized goods, and perpetuator of the safety necessary to encourage interstate business growth.

The link between government and commerce described above merely establishes that state and local government buildings and property are neither inherently disconnected from nor innately intertwined with interstate commerce. Each piece of real or personal property, taking into account its function, must be assessed individually to determine the extent to which it impacts interstate commerce. There can be no uniform and inflexible rule that § 844(i) covers either all or none of the wide variety of municipal buildings that fill either the largest urban metropolis or the smallest rural hamlet. This perfectly conforms to Congress’s will as expressed in § 844(i); the insertion of a jurisdictional element mandates a case-by-case, building-by-building inquiry into whether that particular building is used in an activity that affects interstate commerce, no matter whether it is owned and operated by a supermarket, an advocacy group, or a local-government police department.

C. The Supreme Court’s Analysis of 18 U.S.C. § 844(i)

The Supreme Court has had two opportunities to analyze 18 U.S.C. § 844(i) and to establish a mechanism by which courts can assess whether real or personal property is used in interstate commerce or in an activity that affects interstate commerce. In Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985), the Court considered whether the arson of a two-unit apartment building that was used as a rental property fell within the purview of 18 U.S.C. § 844(i). The Court held that “the statute only applies to property that is ‘used’ in an ‘activity’ that affects commerce” and reasoned that “[t]he rental of real estate is unquestionably such an activity.” Id. at 862, 105 S.Ct. 2455. In its analysis, the Court noted that the original version of the bill proposing § 844(i) contained the words “for business purposes,” but that Congress removed such language before enactment “after considering whether the bill as originally introduced would cover bombings of police stations or churches....” Id. at 860, 105 S.Ct. 2455; see also id. at 860-61 nn. 5-9, 105 S.Ct. 2455 (quoting the relevant legislative history).⁸ The Court read this legislative history to suggest “that Congress at least intended to protect all business property, as well as some additional property that might not fit that description, but perhaps not every private home.” Id. at 862, 105 S.Ct. 2455.⁹ Because the apartments in the building were rented to tenants at the time of the fire, the Court concluded that the property was “being used in an activity affecting interstate commerce.” Id.; see also United States v. Ryan, 9 F.3d 660, 667 (8th Cir.1993) (ruling that a closed fitness center affected interstate commerce because the building was owned and leased by an individual from a different state).

The question that Russell hinted at — whether or not § 844(i) reached the destruction of a private residence — remained unresolved until 2000. In Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), the Supreme Court ruled that “ § 844(i) does not reach an owner-occupied residence that is not used for any commercial purpose.” Id. at 852, 120 S.Ct. 1904. Justice Ginsburg, writing for a unanimous Court, again noted how Congress removed the “for business purposes” language from the proposed bill in order to indicate “that ... the provision should apply to the bombings of schools, police stations, and places of worship.” Id. at 853 n. 5, 120 S.Ct. 1904 (citing Russell, 471 U.S. at 860-61, 105 S.Ct. 2455).¹⁰ The Court emphasized the “qualifying words ‘used in,’ ” which mandates “ ‘that the damaged or destroyed property must itself have been used in commerce or in an activity affecting commerce.’ ” Jones, 529 U.S. at 854, 120 S.Ct. 1904 (emphasis added) (quoting United States v. Mennuti, 639 F.2d 107, 110 (2d Cir.1981)). It then outlined a two-part inquiry for assessing the applicability of § 844(i), which entailed an analysis of “ ‘the function of the building itself, and then a determination of whether that function affects interstate commerce.’ ” Jones, 529 U.S. at 854-55, 120 S.Ct. 1904 (quoting United States v. Ryan, 9 F.3d 660, 675 (8th Cir.1993) (Arnold, C.J., concurring in part and dissenting in part)). In exploring whether § 844(i) covered the destruction of a private residence, the court reasoned that for a building to be used in an activity affecting interstate commerce requires “active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce.” Jones, 529 U.S. at 855, 120 S.Ct. 1904. The Court ultimately ruled that a private residence does not fit within § 844(i) where its only relationship to interstate commerce is the receipt of natural gas, a mortgage, or an insurance policy because such a limited nexus did not constitute “active employment.” To hold otherwise would mean that “hardly a building in the land would fall outside the federal statute’s domain” because “[p]ractically every building ... 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.” Id. at 857,120 S.Ct. 1904.

This two-part inquiry must be conducted in every federal arson case to determine whether the jurisdictional element of § 844(i) has been met. This case-by-case analysis is mandated by Congress’s inclusion of a jurisdictional element, which, as mentioned previously, distinguishes § 844(i) from the Gun-Free School Zones Act of 1990 that the Supreme Court struck down in Lopez. See Lopez, 514 U.S. at 562, 115 S.Ct. 1624 (“[Section] 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that ... have an explicit connection with or effect on interstate commerce.”). The evidence of Congress’s intention to permit federal prosecution of arson of police stations strongly implies that arson of fire stations is also covered, because police stations and fire stations provide similar public safety services. Naturally, Congress’s envisioning of § 844(i) prosecutions for the arson of schools, police stations, and churches does not mean that the arson of all such institutions is covered by the statute, but rather only those that are used in an activity that affects interstate commerce.

D. The Application of Jones to Laton’s Indictment

We now turn to the application of Jones’s two-part analysis to the destruction of the HFS.¹¹ The first step is to identify the function of the HFS and the equipment that the building housed. A building and the personal property within that building can have multiple functions. See Jones, 529 U.S. at 856, 120 S.Ct. 1904 (distinguishing the private home at issue from a residence that was also used as a home office or for a commercial enterprise). Accordingly, a “building’s function is not limited to its primary use.” Rayborn, 312 F.3d at 233. Churches, for example, primarily serve a religious function, but churches can also have secondary and important economic purposes. Terry, 257 F.3d at 369 (holding that a church “can have both a religious aspect and an economic one” when the church operated a daycare center); United States v. Grassie, 237 F.3d 1199, 1209-10 (10th Cir.2001) (acknowledging that a church’s activities can be both religious and commercial); United States v. Odom, 252 F.3d 1289, 1294 (11th Cir.2001) (“Churches are not commonly considered a business enterprise; nonetheless, churches can and do engage in commerce.”).

Similarly, the HFS performed one ancillary function and one main function. It fulfilled an ancillary function of assuring the homeowners and businesses of Hen-ning that their property was safe. The HFS was a municipally owned building that stood alongside the police department and the city hall as a public institution and a visible public safety shield for the citizens of Henning. More significantly, the HFS made the HFD possible; fire departments cannot exist without fire stations. The HFS facilitated the provision of fire protection services necessary for the economic development and prosperity of Hen-ning because the station and the equipment in the building provided the HFD with the implements necessary to combat fires. The function of the building and the trucks, hoses, boots, hats, and communication devices was to permit the HFD to battle ably any conflagration within the jurisdiction of the HFD, whether it be a small brush fire or a major truck or automobile accident on U.S. Route 51.

We reject the district court’s conclusion that the functions of the HFS can be separated from the functions of the HFD, such that the HFD’s firefighting efforts affected interstate commerce, but the HFS, an edifice containing firefighting equipment, did not. The district court wrote that “most of the facts to which the parties stipulate involve the purposes of the Henning Fire Department, not the Henning Fire Station” and ruled that “[i]t is not significant that the Henning Fire Station houses the trucks that drive to the sites that require service, even though those sites are sometimes businesses that are involved in activities that themselves affect interstate commerce.” Laton, 180 F.Supp.2d at 951-52. This analysis too finely atomizes the roles of the HFS and the HFD and ignores the inseparability of their functions. Neither the HFD nor any other fire department in the country can operate without trucks, hoses, axes, flashlights, fire-retardant uniforms, meeting spaces, and communication systems. To hold that the HFD could affect interstate commerce by putting out fires at businesses in Henning or along U.S. Route 51, but that the HFS could not because it only houses the trucks that combat those fires, is no less erroneous than the conclusion that a garage housing a towing service does not affect interstate commerce because the tow trucks perform their commercial function on the road or the conclusion that a radio studio does not affect interstate commerce because the intangible radio waves emanated from the studio are diffusely captured by listeners. One could fracture nearly any traditional for-profit business, particularly in the service sector, into a building that does not in itself affect interstate commerce and a service performed elsewhere that most certainly does affect interstate commerce, but such division only obfuscates the true impact of the business as a whole.

The second step of the Jones analysis involves determining whether the function of the HFS affects interstate commerce. We must analyze whether the HFS, in its role as a municipal building that enables firefighting, is “used” in an activity that affects interstate commerce: does it enjoy “active employment for commercial purposes” rather than “a passive, passing, or past connection to commerce”? Jones, 529 U.S. at 855, 120 S.Ct. 1904. A single relationship to interstate commerce or the conjunction of several different ties to interstate commercial activity can support a finding that a building was actively employed in commerce. For example, in Rayborn we affirmed a conviction under § 844(i) for the arson of a church. Rayborn, 312 F.3d at 234. The church broad-casted radio messages by renting out time from various stations in order to increase the attendance and contributions of out-of-state parishioners, it drew members from three states, it paid salaries, it hosted gospel concerts featuring out-of-state talent for which it requested donations, and it owned several vehicles. Id. at 234-35. On this basis, we concluded that “[t]he church’s interstate connections were direct, regular, and substantial.” Id. at 234. Other courts have similarly found churches to affect interstate commerce where the church has some active commercial connection. See United States v. Terry, 257 F.3d 366, 369-70 (4th Cir.2001) (finding that a church daycare center “was actively engaged in commercial activity” because it provided childcare services for payment); United States v. Grassie, 237 F.3d 1199, 1209 n. 7 (10th Cir.2001) (holding that a Mormon church in rural New Mexico affected interstate commerce because the revenues of the church and the tithed incomes, goods, and services of church members flowed across state lines for distribution by the church’s headquarters in Salt Lake City).¹²

Churches are not the-only buildings that we and other courts have found to be used in an activity affecting interstate commerce. In United States v. Sherlin, 67 F.3d 1208, 1213 (6th Cir.1995), we held that the arson of a dormitory at a private college was punishable under § 844(i). The college was a nonprofit institution, but its dormitory was used in an activity-that affected interstate commerce because the college received payments from students in return for educational services, it advertised out of state, and almost all of the students living in the destroyed dorm hailed from other states. Id. In Belflower v. United States, 129 F.3d 1459, 1462 (11th Cir.1997), the Eleventh Circuit held that § 844(i) covered the bombing of a police vehicle, which a local sheriffs deputy used in his law enforcement responsibilities. That court held that the destruction of the police car had “a significant impact on interstate commerce” because the deputy patrolled traffic and made arrests on an interstate highway, issued citations to out-of-state drivers, participated in interstate narcotic investigations, assisted out-of-state authorities in apprehending suspects, recovered stolen property from other states, and attended law enforcement training sessions in other states. Id.

The Supreme Court’s decision in Jones made clear that the mere receipt of inputs or services from an out-of-state vendor is not a sufficient connection to interstate commerce to support an indictment under § 844(i). Jones, 529 U.S. at 856, 120 S.Ct. 1904. Accordingly, a purely private residence, which is only connected to interstate commerce through the material used to construct it, the supplies used to heat it, or the monetary instrument used to finance its purchase, is not used in an activity affecting interstate commerce. However, when the government relies on other connections to interstate commerce to establish the jurisdictional element of § 844(i), the purchase of supplies from out of state can offer additional support for the conclusion that a building or property is used in an activity affecting interstate commerce. See Rayborn, 312 F.3d at 234-35 (mentioning, in addition to other factors, that a church affected interstate commerce because it purchased local goods, such as groceries and flowers); Sherlin, 67 F.3d at 1214 (noting that a college dorm affected interstate commerce partially because it purchased “numerous supplies” from out of state, including food services).

When it crafted § 844(i) to encompass the arson of police stations, Congress recognized that the provision of emergency services by municipalities can affect interstate commerce in the active sense of the phrase. See Jones, 529 U.S. at 853 n. 5, 120 S.Ct. 1904; Russell, 471 U.S. at 860-61, 105 S.Ct. 2455. Fire stations provide similar emergency services and undoubtedly can affect interstate commerce. See Benson v. Universal Ambulance Serv., 675 F.2d 783, 786 (6th Cir.1982) (affirming lower court’s determination that the FLSA applies to private ambulance employees because responding to emergencies on streets and highways affects interstate commerce given that it removes obstructions to the free flow of interstate commerce); Belflower, 129 F.3d at 1462 (upholding conviction under § 844(i) for the arson of a police vehicle because the officer’s responses to emergencies affected interstate commerce). The issue, though, is not whether all fire stations and fire departments affect interstate commerce; the jurisdietiohal element of § 844(i) requires us to focus our attention only on whether the HFS is used in an activity affecting interstate commerce.

We conclude that a rational juror could find beyond a reasonable doubt that the HFS was used in an activity that affected interstate commerce because its role in fighting fires constituted an active, rather than a passive, employment in interstate commerce. See Latouf, 132 F.3d at 325. Six aspects of the HFS demonstrate this connection. First, the HFS housed firefighting equipment, including trucks, hoses, nozzles, and uniforms, which the HFD purchased from out of state, which the HFD sent for repairs out of state, and which perished in the fire. The precise dollar amount of this equipment is not known, but given that the equipment destroyed included at least one fire vehicle, it was not trivial. Second, the HFD charged $500 to out-of-state insurance companies for fighting fires outside of the Henning city limits, although it only did so a few times annually. Third, the HFD paid its volunteers wages based on the amount of time spent on a fire scene, although these wages generally have not exceeded $1000 annually.

On their own, these first three factors may not form an adequate nexus to interstate commerce under Jones. If the purchase of equipment from out-of-state were the only link between the HFS and interstate commerce, the dissent might be right that this case is easier than, or at least as easy as, Jones given that the acquisition of a mortgage, natural gas, and insurance from out-of-state providers was the extent of the interstate commerce connection in Jones. The dissent’s belief that this is an easier case than Jones sidesteps fundamental differences between Jones and this case, for much more than the mere purchase of supplies from out of state ties the HFS into the web of interstate commerce. As demonstrated below by the final three links to interstate commerce, we find it persuasively clear that the HFS was used in an activity affecting interstate commerce.

Fourth, the HFD is charged with responding to fire emergencies within the Henning city limits. In the past, the HFD has responded to emergency calls from several businesses in Henning, including a market and a laundry facility. In the future, it is certain that the HFD will be called upon to fight fires at other businesses in Henning.¹³ Preventing the destruction of commercial establishments strikingly affects interstate commerce by preserving entities directly engaged in interstate commerce.

Fifth, the HFD serves to protect both the channels of commerce and the instru-mentalities of commerce because it is the primary emergency services provider for the stretch of U.S. Route 51 going through Henning. The HFD has responded (and will respond in the future) to incidents and accidents both on U.S. Route 51 and at the U.S. Route 51 rest area. The HFD’s role in extinguishing fires, saving lives, and keeping U.S. Route 51 clear impacts interstate commerce. The HFD protects passenger vehicles carrying tourists and travelers voyaging through western Tennessee, it safeguards the interstate shipments of goods, and it permits the freeflow of trucks and buses through the area.¹⁴ The HFD’s firefighting capabilities in this regard affect interstate commerce, because insuring that the channels of commerce are kept open and the instrumentalities of commerce are protected is not a passive or passing connection to interstate commerce.

Sixth, and finally, the presence of the HFS and the HFD impacts insurance rates in Henning. The absence of the HFS, and the impact on the HFD’s competency that is wrought by the loss of the HFS, directly alters the PPC, which helps insurance companies calculate fire insurance premiums. As a result of the fire, Henning will have a worse PPC, and insurance premiums will rise. The presence of an active fire department in Henning thus significantly impacts the insurance rates of all the businesses (and homes) in Henning, which in turn influences the commercial transactions of those businesses, both in the sense of their relationships to their insurers and their profit margins.¹⁵

Any of these last three factors by itself demonstrates sufficiently that the HFS was used in an activity that affected interstate commerce, because its connection to commerce was more than passive or passing. Taken together, along with the first three factors, they show that the connection of the HFS to interstate commerce resembles the links between interstate commerce and the church in Raybom, the dormitory in Sherlin, and the police car in Belflower. The HFS and the HFD have a definite impact upon the economy of Hen-ning that is no less significant than a church purchasing radio time or a nonprofit college attracting students from other states. The HFS permits local businesses to operate, enables the free flow of goods and passengers through the state of Tennessee, lowers the costs of doing business by decreasing fire insurance premiums, and directly engages in commercial transactions, in a more minor way, through the purchase of supplies and the billing of insurance companies. Accordingly, any rational juror could conclude beyond a reasonable doubt that the jurisdictional element was met here because the HFS is actively used in an activity that affects interstate commerce.

III. CONCLUSION

Because we conclude that both parts of the Jones test have been satisfied, we hold that there is sufficient evidence to support the indictment as the HFS was used in an activity affecting interstate commerce. We thus REVERSE the judgment of the district court and REMAND for further proceedings under § 844(i) consistent with this opinion.

DISSENT

1 . "Interstate commerce” is defined as "commerce between any place in a State and any place outside of that State.” 18 U.S.C. § 841(b).

2 . Affect is "[t]o act upon; influence; change; enlarge or abridge; ... to act, or produce an effect or result upon; to impress or influence....” Black’s Law Dictionary 57 (6th ed.1991).

3 . Congress originally passed § 844(i) as part of the Organized Crime Control Act of 1970 to control the use and possession of explosives. See Russell v. United States, 471 U.S. 858, 860 n. 5, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985). In 1982, Congress amended the statute to include the words "fire or” before the words "an explosive.” Jones v. United States, 529 U.S. 848, 853 n. 4, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000).

4 . We note that the federal prosecution of La-ton does not preclude the state from also prosecuting him if it so desires. See Heath v. Alabama, 474 U.S. 82, 89-90, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) (" ‘[A]n act denounced as a crime by both national and state sover-eignties is an offense against the peace and dignity of both and may be punished by each.' ”) (quoting United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922)). Under the federal arson statute, La-ton faces a sentence of five to twenty years, assuming that no persons were injured by the fire.- 18 U.S.C. § 844(i). If any persons were injured, Latón faces a sentence of seven to forty years, and if any persons were killed by the fire, Latón is subject to any term of imprisonment, including life imprisonment. Id. Under the Tennessee arson statute, the destruction of a building by fire is a Class C felony, which is punishable by a term of imprisonment of three to fifteen years. See Tenn.Code Ann. §§ 39-14-301, 40-35-111(b)(3). If any persons were injured in the fire, the arson of the HFS would constitute a Class A felony, which is punishable by a term of imprisonment of fifteen to sixty years. See Tenn.Code Ann. §§ 39-14-302, 40-35-111(b)(1). Any supposed friction, as the dissent labels it, between the policy choices of the United States Congress and the Tennessee Legislature regarding the severity of the criminal sanction is a necessary by-product of a federalist republic; a disparity between state and federal sentences, which in this instance is de minimis, occurs quite often in areas of concurrent jurisdiction, such as prosecution for drug-related offenses.

5 . We use ''local” to encompass all political entities within but not including a state, such as municipalities, counties, and special districts (water, school, economic development, etc.).

6 . The Court also rejected “as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is 'integral' or 'traditional' " Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546-47, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). The Court highlighted "the elusiveness of objective criteria for 'fundamental' elements of state sovereignty,” labeling such obliqueness as “a problem we have witnessed in the search for 'traditional governmental functions.' ” Id. at 548, 105 S.Ct. 1005.

7 . Counter to the dissent's assertion, the fact that city-funded firefighting constitutes an un-bargained-for public service is not relevant to the analysis. That individual citizens do not explicitly contract for firefighting support does not mean that fire stations and fire departments fail to impact interstate commerce. Individuals do not bargain with non-profit organizations in order to receive charity or other forms of assistance, yet the Supreme Court has made clear that any rigid categorization of non-profits as entities incapable of affecting interstate commerce is void. Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 586, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997).

8 . Enacted as part of the "Explosive Control Act” provisions of the Organized Crime Control Act of 1970, 84 Stat. 922, 952, the precursor to § 844(i) provided stiff penalties for "[w]hoever maliciously damages or destroys, or attempts to damage or destroy, by means of an explosive, any building, vehicle, or other real or personal property used for business purposes by a person engaged in commerce or in any activity affecting commerce....” H.R. 16699, 91st Cong., 2d Sess. (1970) (emphasis added). During a hearing on this provision, several representatives expressed concern that the statute as worded would not cover the bombing of police stations or churches and suggested leaving out the words "for business purposes.” Russell, 471 U.S. at 860-61 nn. 6-7, 105 S.Ct. 2455. This phrase was not included in the statute as enacted.

9 . The dissent suggests that a glance at § 844(i)’s code-book neighbor, 18 U.S.C. § 844(f) definitively reveals that Congress did not intend for § 844(i) to reach all government buildings even though § 844(f) governs only the destruction of federal, but not state or local, buildings. Section 844(f)(1) reads: "Whoever maliciously damages or destroys ... by means of fire ... any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned....” This provision criminalizes the arson of any federal building, such as the former Murrah Federal Building in Oklahoma City, or any building owned by an organization obtaining federal assistance, such as a university research laboratory that receives a federal grant and then markets its technology. The two statutes do not reference each other, although they were passed at the same time in response to the spate of bombings in the late 1960s. See United States v. Eichman, 957 F.2d 45, 46 (2d Cir.1992) (describing § 844(f)’s history). One cannot logically conclude that the specific mention of federal government buildings in § 844(f) provides definitive evidence of Congress's intention to draw § 844(i)'s boundaries just shy of reaching state or local government buildings.

The provisions overlap in some respects, but they are not so complimentary that the existence of one negates the purpose of the other. For the arson of the university lab mentioned above, both § 844(i) and § 844(f) apply. However, the two statutes will not always be interchangeable such that § 844(i) is surplusage. The arson of a building owned by the federal government or an entity receiving federal assistance that does not in any way affect interstate commerce cannot be prosecuted under § 844(i), but can be under § 844(f). For example, if an individual purchased a single-family residence under a federal program in which the cost of the home was split between the buyer and a state-run housing organization receiving federal funds such that the state government owned part of the residence, the arson of that residence would be punishable under § 844(f), but not § 844(i). Cf. United States v. Davis, 98 F.3d 141, 145 (4th Cir.1996) (affirming prosecution under § 844(f) for the arson of a single-family townhouse because a state housing authority that received federal assistance heavily subsidized the rent of the tenant). Similarly, the arson of a non-federal building, the owners or possessors of which do not receive federal funds, cannot be prosecuted under § 844(f), but may be under § 844(i) if the building was used in an activity affecting interstate commerce. Thus, there are certain arsons that may be prosecuted under § 844(f), but not § 844(i), and others that may be prosecuted under § 844(i), but not § 844(f). Each section has a special function to serve.

10 . The Supreme Court has thus twice relied on this legislative histoiy in analyzing § 844(i). Even if this legislative history did not exist, it would not alter our conclusion because it is the plain language of the statute that directs us towards the inquiry of whether the fire station is used in an activity that affects interstate commerce. However, we need not ignore the history of § 844(i). We agree with the dissent that we are not to "attach decisive significance to the unexplained disappearance of one word from an unenacted bill because 'mute intermediate legislative maneuvers’ are not reliable indicators of congressional intent.” Mead Corp. v. Tilley, 490 U.S. 714, 723, 109 S.Ct. 2156, 104 L.Ed.2d 796 (1989) (emphasis added) (quoting Trailmobile Co. v. Whirls, 331 U.S. 40, 61, 67 S.Ct. 982, 91 L.Ed. 1328 (1947)). We also recognize that "unenacted approvals, beliefs, and desires are not laws.” Puerto Rico Dep't of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 501, 108 S.Ct. 1350, 99 L.Ed.2d 582 (1988). However, the disappearance of the words “for business purposes” from the proposed, but unenacted, version of the original § 844(i) in 1970 was neither unexplained nor mute. Congress explained that it removed the words to ensure that § 844(i) covered more than just traditional business properties, although precisely how much more is the question we address today. Furthermore, the belief or desire that § 844(i) cover "any” type of building used in interstate commerce could not be described as unenacted. In contrast to the words "for business purposes,” which were not included in the final bill, § 844(i)’s coverage of "any building ... used ... in any activity affecting interstate ... commerce” (emphasis added), reflects the desires of Congress to broaden the scope of the anti-arson statute to encompass some public institutions, such as police stations.

11 . The complicity of the Henning Fire Chief in the arson of the HFS does not factor into the analysis. The application of § 844(i) does not turn on the identity of the arsonist. It is a bitterly ironic twist that an official employed by the local government, in fact the official in charge of fire safety, destroyed the firehouse, but it is not legally pertinent.

12 . Several courts have ruled that § 844(1) does not cover churches where the connection to interstate commerce is limited to purchasing supplies, sending dues and contributions across state lines, acquiring insurance, or providing services and religious education. See United States v. Lamont, 330 F.3d 1249, 1256-57 (9th Cir.2003) (rejecting government’s contention that § 844(i) applied where church purchased gas, insurance, and supplies from out of state and several church attendees came from out of state); United States v. Rea, 300 F.3d 952, 962 (8th Cir.2002) (concluding that § 844(i) did not cover a church annex that only housed Sunday school classes and after-school tutoring because the purchase of supplies for the annex by itself had only "fleeting effects on interstate commerce”); United States v. Odom, 252 F.3d 1289, 1296-97 (11th Cir.2001) (dismissing church’s receipt of donations from out-of-state donors, utilization of Bibles purchased from out-of-state vendors, and contributions to various out-of-state nonprofit organizations as “too passive, too minimal and too indirect” to affect interstate commerce); United States v. Johnson, 246 F.3d 749, 752 (5th Cir.2001) (holding that earlier decision, United States v. Johnson, 194 F.3d 657, 662 (5th Cir.1999), which was vacated and remanded by the Supreme Court, 530 U.S. 1201, 120 S.Ct. 2193, 147 L.Ed.2d 230 (2000), correctly concluded that contribution of funds by church members to a national organization and payment of an insurance claim by an out-of-state insurer did not suffice to show that the jurisdictional element of § 844(i) had been met).

13 . The town of Henning is the site of the Alex Haley Museum, several antique shops, a restaurant, two beauty salons, two grocery stores, a bank branch, an auto parts store, twenty churches, 161 renter-occupied housing units, and a clothing manufacturer that employed seventy-five people in 2002.

14 . Not only commercial shipping and passenger vehicles pass through Henning, but also passenger buses operated by Greyhound, Inc., shuttle between Memphis and Dyersburg (and to points further south and north). Additionally, active railroad tracks owned by the Illinois Central Railroad run parallel to U.S. Route 51 through Henning. Freight trains frequent these tracks and AMTRAK runs passenger service along this route, connecting Chicago to New Orleans, with stops in Dyers-burg to the north and Memphis to the south. Any fire emergency in Henning involving a bus or a train would require the assistance of the HFD.

15 . We do not conclude in this opinion that because every community's PPC depends on the training and geographic distribution of fire companies, all fire stations are automatically used in an activity affecting interstate commerce. Given Congress’s explicit instruction that the application of § 844(i) depends on the specific circumstances of a particular fire station, we limit our analysis to the fire station in Henning.