United States v. Gerald Rayborn , 312 F.3d 229 ( 2002 )

GILMAN, Circuit Judge,

concurring.

I agree with the lead opinion that this is a case that falls somewhere between the facts of cases like United States v. Terry, 257 F.3d 366 (4th Cir.) (holding that the church’s operation of a day-care center was a sufficient activity affecting interstate commerce to satisfy the jurisdictional element of 18 U.S.C. § 844(i)), cert. denied, 534 U.S. 1035, 122 S.Ct. 579, 151 L.Ed.2d 451 (2001), and of cases like United States v. Odom, 252 F.3d 1289 (11th Cir.2001) (holding that donations from two out-of-state residents, purchases of Bibles and prayer books from an out-of-state source, and indirect contributions to an out-of-state church organization were insufficient to establish that the church’s activities affected interstate commerce), cert. denied, — U.S. -, 122 S.Ct. 1920, 152 L.Ed.2d 828 (2002).

Although I concur in the result reached, I write separately because I believe that the lead opinion overstates the factors that cause this case to fall within the ambit of § 844(i). In particular, the lead opinion relies on factors such as the church having out-of-state members, serving as the site for gospel concerts that occasionally feature out-of-state talent, employing two persons, collecting donations during Sunday services, purchasing food and flowers for funerals, purchasing groceries for church breakfasts and picnics, and owning several vehicles. (Lead Op. at 7) These are the kinds of “passive [or] passing” activities that both the Supreme Court and other circuits have held are insufficient to bring an arson case under § 844(i). Jones v. United States, 529 U.S. 848, 855, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000); see, e.g., Odom, 252 F.3d at 1296-97 (“These connections to interstate commerce are too passive, too minimal and too indirect to substantially affect interstate commerce”) (internal quotation marks omitted). If such activities are deemed sufficient to satisfy the jurisdictional element of § 844(i), then virtually every church arson in America will become a federal offense.

In my opinion, there is only one factor that causes this case to fall within the “used in commerce or in an activity affecting commerce” part of the Jones test. Jones, 529 U.S. at 854, 120 S.Ct. 1904. That factor is the use of the church building to record sermons for the express purpose of broadcasting the sermons on commercial radio stations, including a radio station located in the state of Mississippi. Radio broadcasts specifically targeted to reach people in other states represent, to my mind, classic activities affecting interstate commerce. As a result, I believe that the lead opinion is correct in concluding that a rational jury could find that the church building was used in activities affecting interstate commerce. But for this factor, however, I would have been inclined to affirm the judgment of the district court.