UNITED STATES OF AMERICA,
Plaintiff,
v.
______________________ ,
Defendant.
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NO. CR
MOTION TO DISMISS INFORMATION FOR LACK OF SUBJECT MATTER JURISDICTION
(UNDER SEAL)
Date: To be set
Time: To be set
______________ moves this Court to dismiss the indictment for lack of subject matter jurisdiction.
This motion is made pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure. This motion is based on the attached memorandum of points and authorities, the related motion to dismiss filed in United States v. Christopher Fisher, CR 93-697-WMB, all files and records in this case and such additional information as may be provided to the Court at the hearing on this motion.
Respectfully submitted,
MARIA E. STRATTON
Federal Public Defender
DATED: July __, 2000 By______________________________
Deputy Federal Public Defender
__________ , a juvenile defendant, is charged in a three-count superseding information with conspiracy to manufacture and use destructive devices, damage to property by means of an explosive device, and use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 371, 844(i), and 924(c)(1), respectively.
The prosecution alleges that ___________ participated in the February 12, 1993, pipe bombing of a private residence located at 5907 Harvey Way, Lakewood, California. A Toyota automobile parked nearby the residence was also damaged in the bombing. The single family dwelling was occupied by the owners of the property. The owners did not rent any rooms to anyone. The owners did not operate any businesses out of their home. The damaged Toyota automobile was used by the owner solely as his personal vehicle. It was not a company-owned car. The automobile simply provided transportation to its owner. Thus, neither the residence nor the automobile was utilized for commercial purposes.
The prosecution also alleges that participated in the January 18, 1993, attempted bombing of Temple Beth David Synagogue located at 6100 Hefley, Westminster, California. Temple Beth David is a non-profit organization formed to serve the needs of its worshipers. The temple provides a myriad of services, including operating a small gift shop, providing facilities for bar mitzvahs and weddings and offering a place of worship.
The prosecution further alleges that ________ participated in a plan to bomb the First AME Church located at 2270 S. Harvard Boulevard, Los Angeles, California. The First AME Church is similar to Temple Beth David in that it is a non-profit organization formed to serve the needs of its worshipers.
A. THE JURISDICTIONAL QUESTION IS NOT PREMATURE.
In its opposition to alleged co-conspirator's Fisher's motion to dismiss, the government suggests that the jurisdictional question is a factual determination for submission to a jury. The government's argument puts the cart before the horse. This Court must first decide, assuming for purposes of the motion that all factual assertions by the government are true, whether the instant §844(i) prosecution comports with the commands of the United States Constitution regarding article III jurisdiction. If not, this federal court can go no further. However, the court -- not the jury -- must decide the initial jurisdictional question.
B. THE COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE THE FEDERAL ARSON STATUTE DOES NOT COVER ARSON OF PRIVATE, NON-COMMERCIAL PROPERTY.
Article I, Section 8 of the Constitution provides in part that Congress shall have the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes". The courts have often invoked the commerce clause as the jurisdictional basis for enactment of federal criminal laws. To be a proper basis for a commerce-based criminal statute, an activity must either relate to interstate transactions, have an effect on interstate commerce, or be an activity which is necessary and proper to regulate in order to effectuate interstate commerce. See L. Tribe, American Constitutional Law, § 5-4, 305-317 (1986) (discussing general commerce clause principles).
Long ago, the Supreme Court noted that the essence of commerce is "commercial intercourse". Gibbens v. Ogden, 22 U.S. (9 Wheat) 1 (1824). Therefore, it is not surprising that nearly any criminal activity involving commercial activities or commercial property falls within federal jurisdiction vis-a-vis the commerce clause. The federal arson statute, 18 U.S.C. § 844, is no exception. There is a wealth of case law holding that there is federal jurisdiction over any arson of commercial property. See, e.g., United States v. Andrini, 685 F.2d 1094 (1984) (citing numerous cases holding that § 844(i) requires only a de minimis effect on interstate commerce when the targeted building is "commercial property.")
Whether or not there is jurisdiction to federally prosecute arson of private, non-commercial property, however, poses an entirely different question for this Court to address. Unlike commercial property, residential property does not clearly implicate the commerce clause -- the only arguable basis for federal jurisdiction in this context.
The Ninth Circuit has not yet addressed this constitutional question. However, several other courts have analyzed the issue and have found that there is no basis for federal jurisdiction in cases involving arson of private non-commercial property because such property does not implicate the commerce clause. See United States v. Mennuti, 639 F.2d 107 (2nd Cir. 1981) (dismissing indictment for lack of jurisdiction under § 844(i) when targeted building was a "private dwelling".); United States v. Monholland, 607 F.2d 1311 (10th Cir. 1979) (holding that private car does not satisfy jurisdictional element of § 844(i)); United States v. Vinnie, 683 F. Supp. 285 (D. Mass. 1988). (no probable cause to believe that the defendant violated 18 U.S.C. § 844 when affidavit only describes arson of a private residence).
The government cites Russell v. United States, 471 U.S. 858 (1985) as support for its assertion that the commerce clause covers private, non-commercial property. However, Russell never enunciated such a sweeping standard. Rather, the court in Russell merely held that when an owner places his home in the stream of commerce, by renting out rooms or using it as a business base, the home becomes sufficiently commercial to justify jurisdiction under the commerce clause. Thus, Russell merely stands for the truism that residences used for commercial purposes are commercial property. The discussion of the legislative history was used to highlight the long-standing judicial theory that the commerce clause should be interpreted broadly in terms of finding a nexus between business property and interstate commerce.
In this case, the information alleges that __________
conspired to burn a church, a temple, a home and a car. None of these constitutes commercial property. Indeed, the church, the private home, and car have nothing to do with commercial activities. Only the temple has an arguable connection with commercial activity -- its gift shop. However, it would grossly oversimplify the issue to label the temple's gift shop as commercial property. See Costello Pub. Co. v. Rotelle, 670 F.2d 1035 (D.C. Cir. 1981) (1).
The private home and car also lack any indicia of commercial activity. Neither was used as part of a business. The home-owners were neither renting out the home nor using it as a base for some business operation. As such, each of the overt acts involving centers around an alleged arson of a non-commercial property. This is not the type of conduct which falls within the realm of commerce clause regulation. Consequently, this court should hold that it lacks jurisdiction and dismiss the indictment.
Admittedly, one circuit has extended 844(i) beyond the realm of commercial property by holding that there is jurisdiction to federally prosecute defendants who burned private residences. See United States v. Moran, 845 F.2d 135 (7th Cir. 1988); United States v. Stillwell, 900 F.2d 1104 (7th Cir. 1990) (holding that there is jurisdiction under § 844(i) to prosecute arson of a private home supplied with interstate gas). The instant residence is similar to the residences in Moran and Stillwell. However, this court need not and should not adopt the Seventh Circuit's highly questionable rationale because it violates utterly over 200 years worth of commerce clause jurisprudence. To do so would federalize literally every arson in the United States.
C. THE LEGISLATIVE HISTORY AND RULES OF STATUTORY CONSTRUCTION SUPPORT THE CLAIM THAT THE COURT LACKS JURISDICTION.
One of the most troubling aspects of the Seventh Circuit's analysis in Stillwell is its supposition that Congress had a clear prerogative to exercise intended jurisdiction over residential property and chose to do so. The legislative history, however, refutes this supposition. For example, the House Report equivocates by first describing an intent to draft a statute with broad application, but then limiting that same statute, "business". Specifically, the report reads:
Section 844(i) proscribes the malicious damaging or destroying, by means of 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. Attempts would also be covered. Since the term affecting [interstate or foreign] "commerce" represents "the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause," NLRB v. Reliance Fuel Corp., 371 U.S. 224, 226, (1963), this is a very broad provision covering substantially all business property. While this provision is broad, the committee believes that there is no question that it is a permissible exercise of Congress' authority to regulate and to protect interstate and foreign commerce. Numerous other Federal statutes use similar language and have been constitutionally sustained in the courts.
See H.R. Rep. No. 1549, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S. Code Cong. & Ad. News 4007, 4046. (emphasis supplied)
The hearings before the House subcommittee with primary responsibility over the federal arson statute pose even greater problems with the Seventh Circuit's analysis. The testimony of Assistant Attorney General Will Wilson, the subcommittee's key advisor, makes it clear that none of the major legislators who drafted and sought passage of the federal arson statute contemplated that the statute could or would apply to churches, synagogues or private homes. For example during the hearings, the following colloquy occurred between the Assistant Attorney General Wilson and the subcommittee members:
MR. WILSON: Seventh, we have added a new provision (subsection(f)) covering malicious damage or destruction by means of an explosive of any property used for business purposes by a person engaged in commerce or any activity affecting commerce. . . since the term "affecting commerce" embraces "the fullest jurisdictional breadth constitutionally permissible under the commerce clause," NLRB v. Reliance Fuel Corp., 371 U.S. 229, 226 (1963), subsection (f) would cover damage by explosives to substantially any business property. . . .
REP. RODINO: Mr. Wilson, subsection (f) of sec. 837, (2)as proposed by HR 16699, applies to structures used "for business purposes". I am a little bit in the dark. Would this section cover the bombing of police stations? Would they cover the bombing of a private home? Just what would the new sec. 837(f) cover?
MR. WILSON: I don't believe it would cover either public buildings or private homes under normal use, but what this is designed for is the business office, where the business is in interstate commerce, giving the Federal government a basis for jurisdiction. It is to broaden the thing, to get at such things as the bombing of business offices in New York City, where the business is in interstate commerce.
MR. ABBELL (Assistant U.S. Attorney): I don't think it actually limits us. I think it just shows the broadness of the scope of business purposes and activities affecting commerce. It is a general term.
REP. POFF: I agree with counsel. If you omitted the words "for business purposes" so that the language would read "or other real or personal property used by a person engaged in commerce or in any activity affecting commerce" the scope would be broader?
MR. ABBELL: We wanted to make sure that it was property used for business purposes, not the home of a business man who is head of a corporation which has engaged in interstate business. We don't want to protect his home. We want just to protect his business.
MR. WILSON: The reason, of course, for not protecting the home is the basic federal jurisdiction of interstate commerce.
See, The Explosive Act of 1970: Hearings Before Subcomm. No. 5 of the Committee on the Judiciary, House of Representatives, 91st Cong., 2nd Sess., pp. 37-74 (1970) (statement of Will R. Wilson, Assistant Attorney General, Criminal Division, Department of Justice) (emphasis supplied).
The substantive discussion of the jurisdictional basis reveals that the bill's proponents recognized that Congress did not have the prerogative to extend jurisdiction to non-commercial property. It is true that Representative Goldwater submitted a statement to the subcommittee urging it to remove the "for business purposes" language in hopes that the statute could somehow be expanded to cover churches and police stations and perhaps residences. Id. at 289-290. Despite its knowledge that jurisdiction was limited to commercial property, the subcommittee honored Representative Goldwater's request and removed the qualifying phrase "used for business purposes." This does not and cannot change the fundamental constitutional problem with extending jurisdiction beyond the realm of commercial property. Congress has no authority to rewrite the commerce clause.
Finally, it is important to note that the statute hardly provides clear, unequivocal notice that private, non-commercial property is contained within its prohibition. As demonstrated by the Assistant Attorney General's comments, traditional commerce clause jurisprudence required the statute to be limited to commercial property. If the statute sought to extend traditional limits, it was a novel and far reaching piece of legislation. Yet, there is no clear indication in the statute that it was creating a whole new standard. Nor does the legislative history illuminate the contours of federal jurisdiction. It appears that the language was removed without explanation or comment. If Congress intended to test the jurisdictional limits of the commerce clause -- as it apparently did -- at the very least it was required to provide clear notice in the statute that it was seeking to expand the commerce clause to non-commercial property. The statute says nothing about this. As such, there is a serious ambiguity regarding the statute.
Statues that are ambiguous with respect to the scope of a criminal prohibition or the penalty to be imposed must be interpreted subject to the "rule of lenity". See Rewis v. United States, 401 U.S. 808 (1971); Bifulco v. United States, 447 U.S. 381 (1980). Thus, resolution of ambiguities within statute requires application of the lenity doctrine. United States v. Restrepo, 896 F.2d 1228 (9th Cir. 1990). The rule of lenity requires the court to select the possible interpretation which most favors the defendant. Id. Thus, under the rule of lenity, the ambiguity should be resolved in favor of .
For all the foregoing reasons, the Court should dismiss the superseding information for lack of subject matter jurisdiction.
Respectfully submitted,
MARIA E. STRATTON
Federal Public Defender
DATED: July __, 2000 By______________________________
KOREY HOUSE
Deputy Federal Public Defender
C:\wwwfpd\jurisdi2.wpd
1. In Costello, the court stressed that just because a church had a closely affiliated "business", which sold books and publications, this did not mean it engaged in commercial activities for the purpose of the anti-trust laws. Rather, the court indicated that the district court should balance the commercial aspects of the publishing operation versus the religious aspects. Ifthe balancing revealed that the operation was quintessentially religious, then the activity was not sufficiently commercial for application of the anti-trust laws. The same type of analysis should apply to this commerce clause analysis. Here, the gift shop has little, if any, commercial aspect. It is inside the temple. It does not conduct regular hours. It is not separately incorporated. On the other hand, the gift shop is steeped in religion. It is much more closely affiliated with the temple than the publishing operation was with the church in Costello. It is a very small-scale operation aimed at providing the congregation with religious items. This is not sufficiently commercial to justify jurisdiction under the commerce clause.
2. Section 837(f) refers to the current 18 U.S.C. § 844(i).