United States v. Swapp

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 29 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4061
(D.C. No. 96-CV-669-J)
ADDAM W. SWAPP, (D. Utah)

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4127
(D.C. No. 97-CV-289-J)
JOHN TIMOTHY SINGER, (D. Utah)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and McKAY , Circuit Judges.

*
These order and judgments are not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases

are therefore ordered submitted without oral argument.

Addam W. Swapp and John Timothy Singer separately seek certificates of

appealability (COA) which would enable them to appeal from the district court’s

denial of their motions, filed pursuant to 28 U.S.C. § 2255, to vacate, set aside or

correct their convictions. We companion these two appeals for disposition

because they are based on similar facts and raise similar issues. To obtain a

COA, appellants must make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Appellants have not met this

standard because they have not shown that the issues they raised “are debatable

among jurists of reason,” that a court could resolve the issues differently, or that

the questions deserve further proceedings. See Barefoot v. Estelle , 463 U.S. 880,

893 n.4 (1983) (quotation omitted); United States v. Sistrunk , 111 F.3d 91, 91

(10th Cir. 1997). As a result, we deny their requests for COA and dismiss these

appeals.

-2-
 BACKGROUND

On January 16, 1988, a church building owned by the Church of Jesus

Christ of Latter-Day Saints (LDS) in Marion, Utah (the “Stake Center”), was

extensively damaged by a dynamite device which exploded inside it. Addam

Swapp, Singer’s brother-in-law, admitted that he had created the device, placed it

in the building, and set it to explode. After setting the device, Swapp walked to

a nearby family home (the “Singer property”) and watched the explosion with

family members. For the next thirteen days, federal law enforcement officers

surrounded the Singer property in an attempt to force the Singer and Swapp

family members to surrender. Swapp and Singer refused to leave the property or

cooperate with the officers. Throughout this period, Swapp was observed walking

around the Singer property with a rifle, and Singer, who is confined to a

wheelchair, was observed brandishing a rifle from the window of the Singer

property.

On January 28, 1988, Swapp left the home carrying a rifle. When agents

attempted to arrest him, shots were fired from the Singer house. A federal agent,

Lt. Fred House, was shot and killed. Two agents fired at Swapp, wounding him.

Additional shots were fired from the Singer residence. A bullet struck another

federal agent in the chest, but the bullet was deflected by his bullet-proof vest.

Shortly thereafter, Swapp, Singer and the remaining family members surrendered.

-3-
 Swapp, Singer and other family members were jointly tried in April 1988.

The jury found Swapp and Singer guilty of attempting to kill officers and

employees of the FBI, in violation of 18 U.S.C. § 1114; assaulting, resisting,

opposing, impeding and interfering with FBI agents while they were engaged in

the performance of their official duties, in violation of 18 U.S.C. § 111; and two

counts of using a deadly and dangerous weapon or firearm during and in relation

to these crimes of violence, in violation of 18 U.S.C. § 924(c). In addition,

Swapp was convicted of knowingly and maliciously damaging and attempting to

damage a building with an explosive, in violation of 18 U.S.C. § 844(i), and using

a deadly and dangerous weapon under § 924(c) in connection with that crime.

Swapp and Singer’s convictions and sentences were affirmed on appeal. United

States v. Swapp , Nos. 88-2433, 88-2435, 88-2516, 89-4090 and 89-4095, 1990

WL 299279 (10th Cir. Sept. 26, 1990) (unpublished disposition).

Swapp and Singer filed separate § 2255 motions in August 1996 and April

1997, respectively. The district court denied both motions, and denied appellants’

requests for COA.

-4-
 ANALYSIS

I. Jurisdictional Element of Arson Charge

A.

Swapp contends that, in light of the Supreme Court’s interpretation of the

Commerce Clause in United States v. Lopez , 514 U.S. 549 (1995), the federal

court lacked jurisdiction to try him under 18 U.S.C. § 844(i), the federal arson

statute, because there was insufficient evidence that the Stake Center was used in

any activity that affected interstate commerce. 1
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, fined under this title, or both . . . .

18 U.S.C. § 844(i) (emphasis added).

1
Swapp did not raise any of his challenges to the interstate commerce
element of his § 844(i) conviction on direct appeal. Nevertheless, a statutory
requirement that an activity be “in or affecting interstate commerce” is both
jurisdictional and an essential element of the charge, see United States v. Allen ,
129 F.3d 1159, 1163 (10th Cir. 1997), and challenges to jurisdiction may be
raised for the first time on collateral review. See United States v. Cook , 997 F.2d
1312, 1320 (10th Cir. 1993) (“jurisdictional issues are never waived and can be
raised on collateral attack.”). Thus, Swapp is not procedurally barred from
raising these issues. See United States v. Kunzman , 125 F.3d 1363, 1364-65
(10th Cir. 1997) (treating challenge to interstate commerce element of statute as
jurisdictional, thus not procedurally barred), cert. denied , 118 S. Ct. 1375 (1998).

-5-
 In Lopez , the Supreme Court held that a federal statute prohibiting

possession of guns in school zones did not regulate “an activity that substantially

affects interstate commerce,” and was, therefore an unconstitutional exercise of

Congress’ Commerce Clause authority. 514 U.S. at 559. We have held that

§ 844(i) is a constitutional exercise of Congress’ Commerce Clause authority

because § 844(i), unlike the statute at issue in Lopez , contains a “‘jurisdictional

element which . . . ensure[s], through case-by-case inquiry, that the [arson] in

question affects interstate commerce.’” See United States v. Little , No. 96-4136,

1997 WL 767765 at **3 (10th Cir. Dec. 11, 1997) (unpublished disposition)

(alteration in original) (quoting Lopez , 514 U.S. at 561).

Swapp does not contend on appeal that § 844(i) is unconstitutional, but he

argues that in order to sustain a conviction under § 844(i) after Lopez , the

government is required to show the building in question had a “substantial” effect

on interstate commerce, rather than the “de minimis” effect previously required.

As the district court recognized, however, our circuit has rejected such a

heightened inquiry. We held in United States v. Bolton , 68 F.3d 396 (10th Cir.

1995), that the Lopez decision “did not . . . require the government to show that

individual instances of the regulated activity substantially affect commerce to

pass constitutional muster under the Commerce Clause.” Id. at 399; see also

United States v. Farnsworth , 92 F.3d 1001, 1006 (10th Cir. 1996) (recognizing

-6-
that Lopez did not change the minimal level of proof required for interstate

commerce element of 18 U.S.C. § 922(g) firearm statute).

“In enacting section 844(i), Congress intended to exercise its full power

under the Commerce Clause of the Constitution, . . . and intended for the statute

to cover the destruction of church property.” United States v. Rea , 169 F.3d

1111, 1113 (8th Cir.) (quotation and citation omitted; citing Russell v. United

States , 471 U.S. 858, 860-61 & n.7 (1985)), petition for cert. filed (U.S. July 14,

1999) (No. 99-6136). When analyzing whether a conviction under § 844(i)

satisfies the jurisdictional element, we must determine whether the property was

“‘used’ in an ‘activity’ that affects commerce.” Russell, 471 U.S. at 862. Courts

have held, subsequent to Lopez , that a church building can be covered by § 844(i).

See Rea , 169 F.3d at 1113-14; United States v. Milton , 966 F. Supp. 1038, 1041

(D. Kan. 1997).

In this case, the jury made a specific factual finding in its verdict that the

Stake Center was used to “receive donated funds that were transmitted by mail or

by wire in interstate commerce.” Swapp R., Vol. I, Doc. No. 11, Ex. F. The

government presented evidence that donations to the Stake Center, in excess of

$1,000,000 annually, were deposited in a local bank. Each week, Stake Center

officials reported the amount of these received donations to an out-of-state

commercial data resource center in Omaha, Nebraska, which monitored and made

-7-
an accounting of the funds. After the Nebraska data resource center notified LDS

church officials in Salt Lake City, Utah, of their accounting, LDS Church

headquarters had the funds electronically wire transferred through the Federal

Reserve Bank to a bank account of the LDS Church in Salt Lake City. These

funds were invested and used for LDS Church expenditures all over the country.

We agree with the district court that, under the standard that only de minimis

effect on commerce need be shown, this evidence was sufficient to establish that

the Stake Center was “used” in activities that “affected” interstate commerce, and

therefore, the jurisdictional element of § 844(i) was satisfied. Cf. United States v.

Wiseman , 172 F.3d 1196, 1214-16 (10th Cir.), cert denied , No. 99-5163, 1999 WL

496676 (U.S. Oct. 4, 1999) (holding that government established interstate nexus

where stolen money could have been used to purchase goods in interstate

commerce); United States v. Zeigler , 19 F.3d 486, 493 (10th Cir. 1994) (“A jury

may infer that interstate commerce was affected to some minimal degree from a

showing that the business assets were depleted.”).

B.

Swapp also argues that the jury was improperly instructed regarding his

violation of § 844(i). Still relying on Lopez , he contends that the jury instructions

were erroneous because they did not require the jury to find the Stake Center’s

activities had a “substantial” affect on interstate activities. As discussed above,

-8-
however, Lopez did not change the minimal level of proof required for the

interstate commerce element of § 844(i).

Swapp next contends the instructions were in error because they did not

require the jury to find that the Stake Center had an “actual” effect on interstate

commerce. We have held, however, that only a potential effect on commerce is

required to satisfy a jurisdictional interstate commerce element; thus, there was no

error. See Wiseman , 172 F.3d at 1215-16; United States v. Nguyen , 155 F.3d

1219, 1228 (10th Cir. 1998), cert. denied , 119 S. Ct. 1086 (1999).

Finally Swapp complains that the jury was instructed that the interstate

commerce element would be established as a matter of law if it found that the

Stake Center was used in one of three activities suggested by the evidence.

Swapp contends that by offering the jury its choice of the three circumstances

presented by the evidence, the judge took from the jury the task of deciding

whether the Stake Center was used in interstate commerce or used in any activity

affecting interstate commerce. These instructions were not erroneous because the

trial court did not direct the jury to make any finding on the interstate nexus

element, but simply presented to the jury three alternatives suggested by the

evidence, any one of which would have been sufficient to prove that element of

§ 844(i).

-9-
 C.

Based on his contention that the Stake Center was not used in activities

affecting interstate commerce, Swapp also argues that the federal agents were

acting outside the scope of their federal jurisdiction while at the Singer property.

He contends, therefore, that he was lawfully acting within his right of self-

defense to resist unlawful arrest, citing Bad Elk v. United States , 177 U.S. 529

(1900), and that all of the charges against him should be dismissed. As discussed

above, however, the federal agents involved in the siege were acting within the

scope of their jurisdiction.

D.

Singer also claims that the United States lacked jurisdiction to try him

because, in light of Lopez , there was insufficient evidence that the Stake Center

was used in a way that substantially affected interstate commerce. He concedes

that he was neither charged nor convicted of any violation of § 844(i), but argues

he has a claim for relief because his trial was tainted by the court’s lack of

jurisdiction over his co-defendants. Singer’s contention that his conviction

should be set aside because of a claimed error in the convictions of his

co-defendants is without merit. Moreover, as we have discussed, the trial court

did have jurisdiction over all of the defendants and there was sufficient evidence

to satisfy § 844(i)’s jurisdictional element.

-10-
 II. Double Jeopardy

Swapp contends, for the first time on appeal of the denial of his § 2255

petition, that his convictions under 18 U.S.C. § 924(c) violate his Fifth

Amendment double jeopardy rights because the crimes of violence supporting his

§ 924(c) convictions involved the same conduct which supported his § 924(c)

convictions. We have held that double jeopardy claims are jurisdictional and are

not subject to waiver. See Kunzman , 125 F.3d at 1365 (treating § 2255 double

jeopardy claim as jurisdictional and not subject to procedural bar); United States

v. Broce , 781 F.2d 792, 797 (10th Cir. 1986) (holding that double jeopardy is an

absolute inhibition on government’s right to institute charges and is not subject to

waiver); but see United States v. Cox , 83 F.3d 336, 341 (10th Cir. 1996) (holding

that § 2255 double jeopardy claim procedurally barred because not raised on

direct appeal).

Therefore, assuming for purposes of this case that Swapp’s claim is not

waived or procedurally barred, his claim is, nevertheless, without merit. “We

have previously rejected this double jeopardy challenge . . . because ‘Congress

may impose multiple punishment for the same conduct without violating the

Double Jeopardy Clause if it clearly expresses its intent to do so,’ and Congress

did so in section 924(c).” United States v. Shinault , 147 F.3d 1266, 1279

-11-
(10th Cir.), cert. denied , 119 S. Ct. 459 (1998) (quoting United States v.

Overstreet , 40 F.3d 1090, 1093, 1095 (10th Cir. 1994)).

III. Convictions under § 924(c)

A.

Both Swapp and Singer contend that their convictions should be vacated

because the trial court’s jury instructions concerning “use” of a deadly or

dangerous weapon or firearm in violation of § 924(c) erroneously defined “use”

as interpreted by Bailey v. United States , 516 U.S. 137 (1995). The jury was

instructed that they could find appellants guilty of using a firearm under § 924(c)

if either “had the power and intention to exercise dominion or control” over the

firearm or if the firearm “furthered the commission of the crime or was an

integral part of the underlying crime being committed.” Swapp R., Vol. I., Doc.

No. 11, Exs. C and D (Jury Instruction Nos. 47 & 69). Appellants also complain

that one of the § 924(c) instructions implied that they could be found guilty under

§ 924(c) if they either used or carried a firearm, even though they were only

charged with “use” of a firearm. See Jury Instruction No. 48.

Neither Swapp nor Singer challenged the § 924(c) instructions at trial or on

direct appeal. Subsequently, the Supreme Court ruled in Bailey that to sustain a

conviction for using a firearm in violation of § 924(c), the government must prove

active employment of the firearm during and in relation to the predicate crime.

-12-
See Bailey, 516 U.S. at 144; United States v. Powell , 159 F.3d 500, 501 (10th Cir.

1998), cert. denied , 119 S. Ct. 1088 (1999). A petitioner who has procedurally

defaulted a claim by failing to raise it on direct review may only raise it

collaterally if he can first demonstrate either cause and actual prejudice, or that he

is actually innocent. See Bousley v. United States , 118 S. Ct. 1604, 1611 (1998).

The district court agreed that the § 924(c) instructions given at appellants’

trial were erroneous in light of Bailey, but evaluated the error under our analysis

in United States v. Holland , 116 F.3d 1353 (10th Cir. 1997), in which we held

that a § 2255 petitioner established cause for failing to raise objections to

§ 924(c) “use” instructions where Bailey was decided after his direct appeal

because Bailey overturned a longstanding and widespread interpretation of

§ 924(c). See id . at 1356. The district court concluded appellants failed to

demonstrate that they were actually prejudiced by the erroneous instructions.

The Holland analysis employed by the district court, however, was subsequently

supplanted by Bousley, in which the Supreme Court ruled that Bailey’s

interpretation of § 924(c) was not so novel as to constitute “cause” to excuse

a petitioner’s failure to challenge the § 924(c) instructions on direct appeal,

thus overruling our previously stated contrary view in Holland . See Bousley,

118 S. Ct. at 1611; Powell , 159 F.3d at 502.

-13-
 The appellants do not assert that they have any cause to excuse their

procedural default; thus, their Bailey claims are procedurally barred absent a

showing of actual innocence of the § 924(c) charge. See United States v.

Leopard , 170 F.3d 1013, 1016 & n.3 (10th Cir. 1999) (applying Bousley to Bailey

jury instruction claims). To establish actual innocence, appellants “must

demonstrate that, in light of all of the evidence, it is more likely than not that no

reasonable juror would have convicted him.” Bousley , 118 S. Ct. at 1611

(quotations omitted). This means “factual innocence, not mere legal

insufficiency.” Id. Appellants never claimed actual innocence in their § 2255

motions; nor did they or the government address the application of Bousley to the

Bailey claims, even though Bousley was decided more than six months before

briefing in this case. Nevertheless, under the circumstances presented here, we do

not see a need to remand these cases to the district court for an “actual innocence”

determination because the evidence in the record supplies overwhelming evidence

that appellants “used” deadly or dangerous weapons in violation of § 924(c) as

interpreted by Bailey . See Luster v. United States , 168 F.3d 913, 915-16 (6th Cir.

1999) (holding remand for Bousley “actual innocence” analysis unnecessary

where record supplied “overwhelming evidence of culpability”).

-14-
 B.

Swapp was charged under § 924(c) with the use of a deadly and dangerous

weapon (a bomb) in relation to the bombing of the Stake Center. Swapp admitted

at trial to designing and building the bomb, placing it at the Stake Center, and

bombing the Stake Center. See Supp. R., Vol. VII., at 1871, 1881-82. These

admissions preclude any showing that he was actually innocent of the use of a

bomb in violation of § 924(c). Swapp was also charged with use of a firearm and

aiding and abetting in the use of a firearm in connection with the attempted

murder of federal officers, and with using a firearm during and in relation to the

crime of forcibly assaulting, resisting, opposing, impeding, or interfering with

federal law enforcement agents.

Swapp admitted to carrying loaded pistols at all times during the

thirteen-day siege with federal agents, and surveillance photographs taken during

the siege showed Swapp outside the Singer property holding a rifle. See id . at

1909; Swapp R. Vol. I., Doc. No. 30, Exs. I and J. Swapp admitted to firing

numerous shots from the Singer property during the siege, to firing shots in the

direction of the federal agents who were putting up lights and speakers near the

Singer property, and to aiming his rifle at a law enforcement helicopter flying

over the property. See Supp. R., Vol. VII. at 1877, 1910, 1912. He admitted to

carrying his loaded M-1 rifle and ammunition with him when he walked out of the

-15-
house on the morning of the arrest. Id. at 1923. Federal agents testified that

Swapp turned his rifle toward them while they attempted to arrest him on January

28, 1988. See id ., Vol. V. at 1045–46, Vol. VI. at 1127.

This evidence is clearly sufficient to constitute “use” under § 924(c). See

Bailey , 516 U.S. at 148 (“The active-employment understanding of ‘use’ certainly

includes brandishing, displaying, bartering, striking with, and, most obviously,

firing or attempting to fire a firearm.”). Therefore, Swapp cannot demonstrate

that he is actually innocent of the two § 924(c) “use” firearm charges, and his

Bailey claim is, therefore, procedurally barred. See Powell , 159 F.3d at 504.

C.

Singer confessed that he sat in his wheelchair at the window of the Singer

property on the morning of January 28, 1988, armed with a .30 caliber carbine

rifle, and that he fired all ten rounds from this rifle toward the federal agents and

their dogs when they attempted to arrest Swapp. See Supp. R., Vol. VI. at

1604-06. Singer had two holsters strapped to his wheelchair in which he stated he

kept the .30 caliber carbine rifle and a .357 magnum revolver. See id . at 1606-07.

Singer’s taped interview in which he made these confessions was played to the

jury. See id . at 1610-11. A federal officer testified to spotting Singer armed with

this rifle. See id . Vol. V. at 690. Ballistics evidence showed that seven of the

bullets fired in the direction of the federal agents on the morning of January 28

-16-
were from Singer’s rifle and one of the bullets fired from Singer’s rifle was

recovered from the coat of one of the federal agents who was struck during the

shooting. See id . Vol. VI. at 1514-21. Given this evidence, Singer cannot

demonstrate that he is actually innocent of the § 924(c) violations, see Bailey ,

516 U.S. at 148, and his Bailey claim is, therefore, procedurally barred, see

Powell , 159 F.3d at 504.

IV. Federal Crime Laboratories

Finally, based on newspaper articles describing an April 1997 report by the

Inspector General of the Department of Justice that was critical of the analyses

performed by certain specialized sections of the FBI’s crime laboratory, Singer

makes a conclusory, unspecified challenge to the quality of the scientific work

performed by the federal crime laboratory during his trial, and argues that the

district court should have held an evidentiary hearing to assess the reliability of

such evidence. Singer’s claims are entirely vague and speculative, and the district

court properly denied an evidentiary hearing. “Conclusory allegations

unsupported by specifics are insufficient to require a court to grant an evidentiary

hearing [in a habeas petition].” Hopkinson v. Shillinger , 866 F.2d 1185, 1211

(10th Cir. 1989)

-17-
 Accordingly, because we conclude that neither Swapp nor Singer have

made a substantial showing of the denial of a constitutional right, we DENY their

applications for COA and DISMISS these appeals.

Entered for the Court

James E. Barrett
Senior Circuit Judge

-18-