UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 95-20889
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAM DUY NGUYEN,
Defendant-Appellant.
______________________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
______________________________________________________________________________
July 9, 1997
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:
In this appeal, we address whether the Double Jeopardy Clause prohibits a court from
imposing consecutive sentences for two counts of the same indictment, where one count charges the
defendant with destroying property by means of an explosion, and the other charges the defendant
with using and carrying a destructive device during the commission of the former count. We also
address whether minor damage to an apartment complex renders this murder case subject to the
federal arson/explosion statute because the crime involved an activity affecting commerce. 18 U.S.C.
§ 844(i).
Tam Duy Nguyen admitted to the police that he gave instructions on how to build a
car bomb to another party, paid that individual to construct the bomb, and placed the bomb under the
driver’s seat of Lam Huu Diep’s van, which was parked in front of an apartment building. On
January, 23, 1992, Diep entered his van and turned his key in the ignition, triggering an explosion that
killed Diep, destroyed his van, and blew out the windows and doors of two units of the apartment
building.
Following trial by jury, Nguyen was convicted on three counts. Count 1 charged
Nguyen with conspiring to violate 18 U.S.C. § 844(i), a violation of 18 U.S.C. § 371. Count 2
charged Nguyen with damaging and destroying property that was used in interstate commerce or in
an activity affecting interstate commerce by means of an explosive, a violation of 18 U.S.C. § 844(i).
Count 3 charged Nguyen with using and carrying a firearm (which includes explosives among its
definitions under 18 U.S.C. §§921 (a)(3) and (4)) in violation of 18 U.S.C. § 924(c)(1).
On appeal, Nguyen argues that Counts 2 and 3 were multiplicitous and violated the
Double Jeopardy Clause, and that the Government failed to prove the interstate commerce element
of 18 U.S.C. § 844(i).
In United States v. Singleton, 16 F.3d 1419 (5th Cir. 1994), we addressed the question
whether the Double Jeopardy Clause prevented the Government from charging the defendants with
both carjacking, a violation of 18 U.S.C. § 2119, and the use or carrying of a firearm during or in
relation to a crime of violence, a violation of 18 U.S.C. § 924(c)(1). We held that the question is
whether the statutes indicate a congressional desire to impose multiple punishments. Id. at 1428.
Finding that § 924(c) on its face provided for multiple punishments, we concluded that the defendants
could be tried on both counts without violating the Double Jeopardy Clause. Id. at 1429. Singleton’s
rationale applies equally to the instant case; we find that Nguyen’s convictions for violating §§ 844(i)
and 924(c) do not violate the Double Jeopardy Clause.1
1
This court’s recent decision, United States v. Corona, 108 F.3d 565 (5th Cir. 1997), reached a
result different from Singleton. In Corona, the defendant had been convicted for violations of 18
U.S.C. § 371, 18 U.S.C. § 844(i), and 18 U.S.C. § 844(h)(1), and on appeal this court found a double
jeopardy violation, because “Congress has not authorized three separate punishments for arson,
conspiracy to commit arson, and for using fire to commit conspiracy to commit arson.” The statutory
language of 18 U.S.C. § 844(h) contains language indicating an intent that the offense be punished
cumulatively with other offenses that closely mirrors similar language in 18 U.S.C. § 924(c).
Compare 18 U.S.C. § 844(h) (“Whoever-- (1) uses fire or an explosive to commit any felony which
may be prosecuted in a court of the United States, or (2) carries an explosive during the commission
of any felony which may be prosecuted in a court of the United States, . . . shall, in addition to the
punishment provided for such felony, be sentenced to imprisonment for 10 years. . . .
2
As for Nguyen’s Interstate Commerce argument, we find Russell v. United States, 471
U.S. 858, 105 S. Ct. 2455 (1985), controlling, at least until the Supreme Court reconsiders it in light
of United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995). In Russell, the Supreme Court
observed regarding § 844(i): “In sum, the legislative history suggests 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. at 2457. The Court went on to state that
while the statute “[b]y its terms . . . only applies to property that is ‘used’ in an ‘activity’ that affects
commerce,” the local rental of an apartment was sufficient to fall within this category. Id. In the
instant case, the van that exploded was used to provide maintenance supplies for the building, the
building was also damaged, and two of the building’s apartments were being used as business offices.
Pursuant to Russell, the rental property damaged by Nguyen’s explosion was property being “‘used’
in an ‘activity’ that affects commerce,” and thus interstate commerce, within the meaning of § 844(i).
For the reasons discussed above, Nguyen’s sentences are AFFIRMED.
Notwithstanding any other provision of law, the court shall not place on probation or suspend the
sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment
imposed under this subsection run concurrently with any other term of imprisonment including that
imposed for the felony in which the explosive was used or carried”) with 18 U.S.C. § 924(c) (1)
(“Whoever, during and in relation to any crime of violence or drug trafficking crime . . . uses or
carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug
trafficking crime, be sentenced to imprisonment for five years. . . . Notwithstanding any other
provision of law, the court shall not place on probation or suspend the sentence of any person
convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this
subsection run concurrently with any other term of imprisonment including that imposed for the
crime of violence or drug trafficking crime in which the firearm was used or carried”) (emphasis
added).
Although a faithful application of Singleton to Corona would seem to warrant the
same result as in Singleton, Corona never specifically addressed whether this language in Section
844(h) indicates an explicitly stated intent by Congress to impose the offense cumulatively with other
offenses. In any case, Corona can be distinguished from the instant case in a number of ways. For
example, Nguyen’s convictions arose under three separate statutes, and did not involve multiple
subsections of the same statute, unlike Corona. Furthermore, the instant case essentially involves
several offenses--i.e., using an explosive in a crime of violence (§ 924(c)(1)) and destroying property
used in commerce (§ 844(i)), in addition to the conspiracy count--rather than the “arson/conspiracy
to commit arson/using fire to conspire to commit arson” triple redundancy that arose in Corona.
Most importantly, Corona did not involve 18 U.S.C. § 924(c)(1), and Singleton, the earlier of the
two decisions, is directly on point. We are bound by Singleton’s holding that Section 924(c)’s
cumulative offense language authorizes Section 924(c)(1) to be imposed cumulatively with other
offenses.
3
ENDRECORD
4
EDITH H. JONES, Circuit Judge, Dissenting:
I respectfully dissent from affirming this conviction
because it is an abuse of the federal government’s authority to
prosecute this local revenge murder. In United States v. Lopez,
514 U.S. 549, 115 S.Ct. 1624 (1995), the Supreme Court reminded the
courts to police the borders of federalism with new care and due
regard for the unique historical primacy of states in local law
enforcement. I do not see how a killing of one man by his
acquaintance can be a federal offense simply because the killer
used a car bomb and de minimis damage was done to adjacent rental
property.
The issue in this case is not Congress’s power to
criminalize the act of maliciously damaging or destroying, or
attempting 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). Nor is it an issue here whether an explosion
perpetrated on local rent property can be federally prosecuted,
because the Supreme Court has held that such rental activity
affects commerce. Russell v. United States, 471 U.S. 858, 862, 105
S. Ct. 2455, 2457 (1985). While Russell’s conclusion that local
rent property “affects commerce” is not as demanding as the Lopez
“substantial effects” test, Russell binds us until it is
reconsidered by the Supreme Court. See United States v. Rawls, 85
F.3d 240, 242-43 (5th Cir. 1996) (observing that, although 18
5
U.S.C. § 922 would not meet Lopez’s requirements for a sufficient
nexus to commerce if the matter were considered res nova, this
court was bound by Scarborough v. United States, 431 U.S. 563, 97
S. Ct. 1963 (1977), which dealt with a predecessor to 18 U.S.C. §
922(g)); Rodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477, 484-85, 109 S. Ct. 1917, 1921-22 (1989) (instructing
that when “a precedent of this Court has direct application in a
case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of
overruling its own decisions”).
Given these premises, however, Lopez still does not
permit me to agree that inflicting “by means of fire or explosive”
any damage, no matter how trivial or unexpected, on a local rental
property is an act that “substantially affects” interstate
commerce.2 Lopez indicated that when, as here, a federal statute
contains a jurisdictional element reflecting Congress’s intent to
regulate interstate commerce, case-by-case inquiry remains
necessary to maintain the limits on federal power. See Lopez, 514
U.S. at ___, 115 S.Ct. at 1631; United States v. Pappadopoulos, 64
F.3d 522, 526 (9th Cir. 1995) (holding that Lopez’s “substantial
2
Lopez described three classes of valid legislation under the commerce clause: legislation that
regulates “the use of the channels of interstate commerce;” that which regulates or protects “the
instrumentalities of interstate commerce, or persons or things in interstate commerce, or persons or
things in interstate commerce, even though the threat may come only from intrastate activities;” and
that which regulates even local activities that “substantially affect” interstate commerce. Lopez, 514
U.S. at ___, 115 S.Ct. at 1629-30. The federal arson statute is among the third class. See Russell,
471 U.S. at 862, 105 S. Ct. at 2457 (discussing the effect on commerce of the local rental of an
apartment, and Congress’s power to regulate this activity).
6
effects” analysis must be applied to ensure the constitutionality
of a statute that relies on a jurisdictional element in individual
cases where the significance of the contacts to interstate commerce
is at issue). The substantial effects test articulates the limit.
Admittedly, what constitutes a substantial effect may
impose more of a rhetorical than an actual limit on federal
authority, as is exemplified by some of the economic regulation
cases cited in Lopez.3 In the criminal area, however, the
substantial effects test is meaningful, because criminal law
enforcement has traditionally been a state responsibility.
Further, the effects of crime are ordinarily wholly local and often
non-commercial. If it seems mere rhetoric to confine federal
legislation to local activities with a substantial effect on
interstate commerce, it is untenable to judicially eliminate either
the word “interstate” or “commerce” from the Constitution and
“convert congressional Commerce Clause authority to a general
police power of the sort held only by the States”. Lopez, 514
U.S. at ___, 115 S. Ct. at 1625.
Taking Russell as still-guiding law after Lopez, the
application of the substantial effects test to this statute may be
easily described: a defendant’s act or attempt at maliciously
damaging or destroying, by means of fire or an explosive, property
used in interstate commerce must have [or intend] a direct impact
3
See, e.g., Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264,
276-280, 101 S.Ct. 2352, 2360-2361 (1981) (upholding regulation of intrastate coal mining);
Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82 (1942) (upholding regulation of production and
consumption of home-grown wheat under the Commerce Clause).
7
on the property’s ability to be used in that fashion. Thus,
intentional or attempted incineration of the property substantially
affects interstate commerce.4 Setting off a firecracker on the
floor of a department store, however, or causing minor damage to
property used in interstate commerce as a result of a non-
commercial arson on nearby property does not.5
The evidence in this case plainly proves a crime that had
no connection to interstate commerce and that only accidentally,
insubstantially damaged commercial rental property. Appellant
Nguyen arranged for a bomb to be placed in Diep’s vehicle, killing
Diep and destroying the van, but barely grazing the adjacent
apartment complex. The government argued at trial that the
privately owned van affected interstate commerce because the victim
used it to transport items relating to his job as a maintenance man
for the apartment complex. This single connection is too tenuous
4
Strictly speaking, the regulated activity under § 844(i) is not simply propert y affecting
commerce, but the arson or destruction of such property. See, e.g., United States v. Gaydos, 108
F.3d 505, 508 (3d Cir. 1997) (discussing “Russell's interpretation of § 844(i), and its holding, that
the statute constitutionally regulates arson of business property”); United States v. Pappadopoulos,
64 F.3d 522, 526 (9th Cir.1995) (“the conduct regulated by section 844(i)--arson--is not commercial
or economic in nature”). After Lopez, courts should consider on a case-by-case inquiry whether this
effect on commerce is substantial. See, e.g., United States v. Corona, 108 F.3d 565, 570 (5th Cir.
1997) (Congress may constitionally criminalize “the burning of buildings rented by cab companies for
commercial purposes [under § 844(i)] because those burnings can have a substantial effect on
interstate commerce”) (emphasis added); Pappadopoulos, 64 F.3d at 527-28 (the destruction of a
privately owned house did not substantially affect interstate commerce, because the house’s sole
connection to interstate commerce was a natural gas line).
5
This court’s recent decision, United States v. Corona, 108 F.3d 565 (5th Cir. 1997), should
be distinguished. In Corona, the defendants targeted an arguably residential (and non-commercial)
house, but the fire spread to a building next door with a sufficient connection to commerce to support
a conviction under § 844(i). Unlike the instant case, in Corona the damage to the adjacent structure,
a commercially-rented taxicab warehouse and cab employee lounge, was substantial--the roof
collapsed, and the building along with one of the taxicabs was destroyed. Id. at 568; United States
v. Corona, 934 F. Supp. 740, 741-43 (E.D. La. 1996), aff’d, 108 F.3d 565 (5th Cir. 1997).
8
to support federal jurisdiction. See United States v. Collins, 40
F.3d 95, 99 (5th Cir. 1994) (reversing convictions and sentences
for violation of 18 U.S.C. § 1921(a) and 18 U.S.C. § 924(c)(1)
because theft of a vehicle which prevented the owner from attending
a business meeting was “too attenuated to satisfy the interstate
commerce requirement”), cert. denied, ___ U.S. ___, 115 S. Ct. 1986
(1995). As for the apartment building, there was minor damage to
some French doors and to the juncture of the 2x6 planks that formed
part of the eaves. There was no structural damage to the building,
and it was not closed down for repairs. If this is a federal crime
it is hard to conceive of any arson or explosive-related case that
would not be.
The federal arson/explosive statute expressly seeks to
protect property used in commerce. The use of this property had
nothing to do with the crime, and the superficial scrapes the
building received in no way impaired its position in commerce.
Based on a post-Lopez individual inquiry as to whether the
defendant’s car-bombing of his acquaintance substantially affected
interstate commerce, the answer seems to me easy. Broken windows
and split eaves do not make a federal case. I respectfully
dissent.
9