United States v. Troy

United States Court of Appeals
For the First Circuit

No. 09-2121

UNITED STATES OF AMERICA,

Appellee,

v.

ROXANNE TROY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Boudin, Selya and Gajarsa,* Circuit Judges.

John M. Thompson, with whom Thompson & Thompson, P.C. was on
brief, for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

August 26, 2010

*
Of the Federal Circuit, sitting by designation.
 SELYA, Circuit Judge. Defendant-appellant Roxanne Troy

raises claims of evidentiary insufficiency, instructional error,

and inadequacy of the charging document, all of which require us to

explore the parameters of the interstate commerce element of the

federal arson statute, 18 U.S.C. § 844(i). The appellant caps her

asseverational array with a claim of sentencing error. This final

claim depends on the notion that section 844(i)'s mandatory minimum

term of imprisonment does not preclude the imposition of a stand-

alone sentence of probation. After careful consideration of the

arguments ably presented by the appellant's counsel, we reject all

of these claims and affirm the judgment below.

I. BACKGROUND

Because the appellant's principal claim of error is

couched as a challenge to the sufficiency of the evidence, we

rehearse the facts in the light most hospitable to the verdict,

consistent with record support. United States v. Rodríguez-Vélez,

597 F.3d 32, 38 (1st Cir. 2010).

For roughly eight years, beginning in 1994, the appellant

and her husband, David Troy, operated "Rox's," a nightclub and bar

located at 124 Main Street, Oxford, Massachusetts. They closed the

establishment in 2003, but by early 2006, they had reopened it.

The resumption of business posed a problem. In 2004, a

law had taken effect in Massachusetts, imposing new fire safety

requirements on certain establishments with a seating capacity of

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100 or more persons. See Mass. Gen. Laws ch. 148, § 26G½. The law

demanded, among other things, that these facilities install

sprinkler systems by a specified deadline. Rox's was subject to

this proviso.

On April 15, 2006, the Oxford fire chief, Jeffrey Wilson,

wrote to the appellant, noting her obligation to submit plans for

the installation of a conforming sprinkler system no later than May

15, 2006, with installation to be completed by November 15, 2007.

In response, the appellant stated that she did not intend to

install a sprinkler system but, rather, would raze the building and

"construct a new establishment" at 124 Main Street. Chief Wilson

did not reply directly to the appellant's letter; he did, however,

inform Kimberly Golenski, a managerial employee at Rox's, that the

sprinkler system plans would have to be submitted by December 31,

2006 for Rox's to be in compliance with the law.

No plans were proffered by that date, and Chief Wilson

told the chief of police that both the liquor license and the

certificate of occupancy for Rox's should be regarded as null and

void as of midnight on December 31, 2006. Rox's closed at that

time and never reopened for business. The Town of Oxford (Town)

subsequently refused to renew the liquor license.

Undaunted, the appellant applied for a new liquor license

for the same site. She later sued the Town, asserting a right to

renew the previously suspended license.

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 Early in 2007, the Town performed fire, electrical, and

building inspections at the site. The appellant thereafter

effected repairs to the building and its accouterments as a means

of addressing shortcomings identified in the recent spate of

inspections.

In April of 2007, Golenski began cooperating with local

law enforcement and the federal Bureau of Alcohol, Tobacco,

Firearms, and Explosives in their joint investigation into an

attempted arson at Rox's. On April 10, 2007, Golenski — wearing a

concealed wire — met with the appellant. In the course of their

conversation, the appellant admitted that she had offered Rene

Armenia, Golenski's boyfriend, $10,000 to burn Rox's to the ground.

The fee was to be paid $5,000 in advance and $5,000 after the arson

was accomplished.

During this same conversation, the appellant and Golenski

also discussed ways in which Golenski could torch Rox's and make it

look like an accidental fire. The appellant vouchsafed that,

"after it's done, I will give you something."

In due season, a federal grand jury sitting in the

District of Massachusetts returned an indictment charging the

appellant with two counts of solicitation to commit a crime of

violence in violation of 18 U.S.C. § 373(a), and one count of

attempted arson in violation of 18 U.S.C. § 844(i). After a

modicum of pretrial skirmishing, not relevant here, the case went

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to trial in March of 2009. At the close of the government's case

in chief and again at the close of all the evidence, the appellant

moved for a judgment of acquittal. See Fed. R. Crim. P. 29. All

of the counts required proof of the elements of 18 U.S.C. § 844(i)

— arson was the "crime of violence" specified in each of the first

two counts of the indictment — and the appellant argued that the

government had failed to present sufficient evidence to prove the

interstate commerce element of section 844(i). The district court

denied both motions.

The jury convicted the appellant on all three counts. On

July 16, 2009, the district court sentenced her to a five-year

incarcerative term on each count to run concurrently, followed by

two years of supervised release. This timely appeal ensued.

II. ANALYSIS

We divide our analysis into three parts, each addressing

a discrete set of claims. Under this taxonomy, we first consider

the appellant's claims relating to the parameters of the interstate

commerce element of 18 U.S.C. § 844(i). We then address her plaint

that the indictment failed adequately to describe the charged

crimes. Finally, we grapple with her claim of sentencing error.

A. "Use" under 18 U.S.C. § 844(i).

The appellant's flagship claims concern the parameters of

the interstate commerce element of section 844(i). The first of

these deals with the sufficiency of the evidence. The appellant

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maintains that the trial court erred in denying her end-of-case

Rule 29 motion for acquittal because the evidence did not establish

that Rox's was "used" in interstate commerce as required by section

844(i).

This challenge presents a question of law, engendering de

novo review. See Rodríguez-Vélez, 597 F.3d at 38. To answer that

question, we must look at the evidence as a whole and draw all

reasonable inferences therefrom in favor of the verdict. Id. Our

objective is to ascertain whether the record evidence permitted a

reasonable juror to find that each element of the crime charged was

proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979).

At the heart of the appellant's argument lies a dispute

over statutory interpretation. The pertinent 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, fined
under this title, or both . . . .

18 U.S.C. § 844(i). The dispute in this case revolves around

whether a reasonable jury could have found that the building at 124

Main Street, at the time of the solicited/attempted arson, was

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being "used" in interstate commerce within the purview of this

statute.

The Supreme Court shed some light on this question in

Jones v. United States, 529 U.S. 848 (2000). That case dealt with

the arson of an owner-occupied residence not itself devoted to a

commercial purpose. Id. at 850-51. The Court indicated that, with

respect to "use," the proper inquiry focuses on the function of the

targeted structure. Id. at 854. The Court added that the federal

arson statute's "use[] in interstate commerce" provision "is most

sensibly read to mean active employment for commercial purposes, and

not merely a passive, passing, or past connection to commerce." Id.

at 855. Section 844(i) "covers only property currently used in

commerce or in an activity affecting commerce." Id. at 859. The

case at hand requires us to determine what type of use is

sufficiently "active" and "current[]" to satisfy this test in a case

in which, unlike in Jones, the building is not a private residence

but, rather, a commercial establishment that was not open for

business at the time of the planned arson.

To begin, Jones is factually inapposite. Consequently,

the Jones Court's language cannot be transplanted root and branch

into the much different terrain of this case. Nevertheless, we can

derive guidance from that language. The Jones Court expressed

concern that, were it to find a private residence subject to the

federal arson statute, it would "make virtually every arson in the

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country a federal offense." Id. at 859. We share the same concern

about avoiding a reading of section 844(i) that reaches too far.

This brings us to the appellant's invitation to adopt a

strict and mechanical reading of the language employed by the Jones

Court. We decline this invitation: we do not read Jones as

suggesting that all commercial establishments, once closed for

business for any period or purpose, move beyond the reach of section

844(i).

The reading suggested by the appellant would produce

ludicrous results. The phrases "currently used" and "active

employment" cannot sensibly be read to mean "open for business at

the precise moment in time when the match is struck." Under such

a forced reading, a building used for prototypically commercial

purposes would, if closed for business overnight, fall beyond the

reach of the statute during off hours. So, too, would a building

that houses a business that routinely closes on weekends or for

vacation periods. We cannot accept the proposition that Jones

requires such a crabbed reading of the interstate commerce element

of the statute.

The better interpretation, we believe, is that a building

that is temporarily closed may still remain in active commercial

use. Each case must be evaluated on its own facts, and the answer

to the active use inquiry is likely to turn on matters of degree.

If a commercial building has been temporarily closed for business

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and there is objective evidence of substantial, definite, and

ongoing efforts by the responsible party to bring it back into

active use in the stream of commerce, the interstate commerce

element of section 844(i) is satisfied.

The approach that we favor places sensible limits on the

reach of section 844(i) without adopting a reading so literal as to

deny the statute practical effect. In construing the statute in

this common-sense way, we emphasize that subjective intent to return

a facility to the stream of commerce, without evidence of

substantial, definite, and ongoing steps taken toward that end, will

not satisfy the interstate commerce element of section 844(i).

Other courts have hewed to this line, concluding that

when a commercial building is temporarily vacant, that building

nonetheless continues to be "used" in interstate commerce for

purposes of satisfying section 844(i) as long as there is sufficient

evidence of an intent to return the building to the stream of

commerce. See, e.g., United States v. Iodice, 525 F.3d 179, 184-85

(2d Cir. 2008) (declining to "adopt an overly literal reading of the

'active employment' phrase in Jones" and holding that buildings do

not relinquish their relationship to interstate commerce merely

because temporarily vacant); Martin v. United States, 333 F.3d 819,

821-22 (7th Cir. 2003) (holding that "the temporary suspension of

commercial activity in a building that otherwise meets the

interstate commerce requirements" does not "remove that building

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from the scope of the arson statute"); United States v. Estate of

Parsons, 314 F.3d 745, 751-52 (5th Cir. 2002) (holding that closing

of hotel for winter season did not permanently remove the building

from interstate commerce for purposes of section 844(i)), vacated

on other grounds, 367 F.3d 409 (5th Cir. 2004) (en banc); United

States v. Williams, 299 F.3d 250, 255 (3d Cir. 2002) (finding

evidence sufficient to sustain a conviction under section 844(i)

when "a reasonable trier of the facts could have concluded that

Williams intended the building, at the very least, to return to the

stream of commerce").

The evidence here, taken in the light most favorable to

the verdict, is sufficient to ground the convictions. It showed

that, after the nightclub and bar had closed, the appellant took

substantial and definite steps to preserve the value of the

business. Golenski testified that after Rox's closed on December

31, 2006, the appellant told her not to cancel bands that had been

booked for performances at Rox's later in 2007. Indeed, the

appellant told Golenski to "continue booking bands" for future

engagements. The government also presented evidence that the

appellant hired a structural engineer in early 2007 to make repairs

to Rox's floor. Then, too, there was evidence that several other

repairs were effected in response to defects reported by the fire,

electrical, and building inspectors in January of 2007. These

included the installation of new signage, the replacement of

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outdated safety equipment, and modernization of the building's

electrical system.

In addition, the appellant took actions aimed at

obtaining a valid liquor license for Rox's following the revocation

of the original license at the end of 2006. She filed an

application for a new license. She also filed suit against the Town

in an effort to recoup the original license. The logical conclusion

to be drawn from these efforts is that she was trying to position

Rox's for reopening.

In cumulation, these pieces of evidence and the

reasonable inferences that a factfinder could draw therefrom are

sufficient to support a finding that, on the dates of the described

arson, the appellant was taking meaningful, definite, and ongoing

steps to return the building at 124 Main Street to the stream of

commerce. No more is exigible to satisfy the interstate commerce

element of the federal arson statute. It follows that the district

court acted appropriately in denying the appellant's end-of-case

motion for a judgment of acquittal.

We turn next to a related claim: that the district court

incorrectly instructed the jurors with respect to the interstate

commerce element of section 844(i). Because the appellant did not

object to the instructions given at trial, see Fed. R. Crim. P. 30,

our review is for plain error. United States v. Alicea, 205 F.3d

480, 484 (1st Cir. 2000). In applying that standard, we look at the

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instructions as a whole to ascertain the extent to which they

adequately explain the law without confusing or misleading the jury.

See United States v. Griffin, 524 F.3d 71, 76 (1st Cir. 2008);

United States v. González-Vélez, 466 F.3d 27, 35 (1st Cir. 2006).

"Review for plain error entails four showings: (1) that

an error occurred (2) which was clear or obvious and which not only

(3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation of

judicial proceedings." United States v. Duarte, 246 F.3d 56, 60

(1st Cir. 2001); see also United States v. Marcus, 130 S. Ct. 2159,

2164 (2010). This standard is so demanding that we have

characterized it as "cold comfort to most defendants pursuing claims

of instructional error." United States v. Medina-Martinez, 396 F.3d

1, 8 (1st Cir. 2005) (quoting United States v. Gomez, 255 F.3d 31,

37 (1st Cir. 2001)).

As to the interstate commerce element, the district court

instructed:

[A] temporarily vacant building may qualify as
a building that 'was used in or affected
interstate commerce' if the owner or
leaseholder intended, at the time it was
damaged or destroyed, to return the building
to an active commercial or business use or
purpose. A building that is permanently
vacant or removed from use is not a building
that is used in or affects interstate
commerce.

This instruction describes, at least generally, the evidentiary

showing needed to establish the interstate commerce element in a

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section 844(i) case. We discern no clear or obvious error and,

thus, the challenge founders.

B. The Indictment.

The appellant asserts that the indictment was defective

because it failed adequately to allege section 844(i)'s interstate

commerce element. At the threshold, this remonstrance runs headlong

into a question of waiver: Under the Criminal Rules, objections to

the sufficiency of an indictment ordinarily must be raised prior to

trial. See Fed. R. Crim. P. 12(b)(3)(B). Here, however, the

appellant did not challenge the sufficiency of the indictment below.

Be that as it may, the Criminal Rules carve out a

specific exception for certain types of defects in indictments.

"[A]t any time while the case is pending, the court may hear a claim

that the indictment or information fails to invoke the court's

jurisdiction or to state an offense." Id. Because the appellant

asserts that the indictment fails adequately to allege a necessary

element of the offenses charged, we will assume, for argument's

sake, that her claim of error survives the government's waiver

argument. Even so, her failure to raise the point below constitutes

a forfeiture, which confines appellate review to plain error. See,

e.g., United States v. Teh, 535 F.3d 511, 515-16 (6th Cir. 2008)

(reviewing claim that indictment failed to state an offense, not

raised at trial, for plain error) (citing United States v. Cotton,

535 U.S. 625, 631-32 (2002)); United States v. Sutton, 961 F.2d 476,

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478-79 (4th Cir. 1992); cf. United States v. Stein, 233 F.3d 6, 22-

23 (1st Cir. 2000) (stating that "[b]ecause [the appellant] did not

challenge the sufficiency of the indictment below, we review for

plain error only," but not specifically invoking Rule 12(b)(3)(B),

with respect to claim that indictment failed adequately to indicate

controlling paragraph of statute).

It is common ground that an indictment "must be a plain,

concise, and definite written statement of the essential facts

constituting the offense charged." Fed. R. Crim. P. 7(c)(1). An

indictment that tracks the language of the underlying statute

generally suffices to meet this standard; provided, however, that

the excerpted statutory language sets out all of the elements of the

offense without material uncertainty. See United States v. Serino,

835 F.2d 924, 929 (1st Cir. 1987); see also United States v. Wells,

766 F.2d 12, 22 (1st Cir. 1985) ("Viewed in its entirety, an

indictment is sufficient if it describes all of the elements of the

charged offense using the words of the relevant criminal statute.").

In other words, the statutory language may be used in the indictment

to describe the offense, "but it must be accompanied with such a

statement of the facts and circumstances as will inform the accused

of the specific offence, coming under the general description, with

which he is charged." Hamling v. United States, 418 U.S. 87, 117-18

(1974) (quoting United States v. Hess, 124 U.S. 483, 487 (1888)).

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 Here, counts one and two of the indictment charge the

appellant with solicitation of a crime of violence (arson). The

statute describes the solicitation offense as follows:

Whoever, with intent that another person
engage in conduct constituting a felony that
has as an element the use . . . of physical
force against property . . . in violation of
the laws of the United States, and under
circumstances strongly corroborative of that
intent, solicits, commands, induces, or
otherwise endeavors to persuade such other
person to engage in such conduct, shall be
[punished as provided].

18 U.S.C. § 373(a). The first count of the relevant version of the

indictment states in pertinent part that:

Roxanne Troy, the defendant herein, with the
intent that another person known to the grand
jury engage in conduct constituting a felony
that has as an element the use of physical
force against the property of another in
violation of the laws of the United States,
and under circumstances strongly corroborative
of that intent, did solicit, command, induce,
or otherwise endeavor to persuade such person
known to the grand jury to engage in such
conduct, that is, to commit arson of Rox's
. . . .

The material language of count two is identical to that of count

one.

With respect to both of these counts, the indictment

faithfully tracks the language of the statute. It notifies the

appellant not only of the elements of the crimes charged but also

of the relevant factual scenario. Neither count is vulnerable to

the appellant's attack.

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 Count three alleges that 124 Main Street was, during the

relevant time frame, "a building used in interstate . . . commerce

and in activities affecting interstate . . . commerce." This

language mirrors the text of section 844(i). This count, too,

sketches the factual predicate of the offense. On its face, then,

count three — like counts one and two — appears to meet the

applicable standards of adequacy.

The appellant counters that all three counts should have

contained language from Jones, 529 U.S. at 855, 859, relating to

"active employment" and "current[]" use in interstate commerce. But

although those catch phrases inform an interpretation of the

statute, they are not part of the language of the statute; they are

simply a judicial gloss on the statutory text. A judicial gloss,

though helpful in interpreting a criminal statute, need not be

included verbatim in the charging document. See, e.g., United

States v. Renteria, 557 F.3d 1003, 1006-07 (9th Cir.), cert. denied,

130 S. Ct. 314 (2009); United States v. Hill, 386 F.3d 855, 859 (8th

Cir. 2004).

The short of it is that the indictment describes the

statutorily defined elements of the charged crimes, the general

factual scenario on which the charges rest, and the connection

between the elements and the facts. It plainly identifies the

building that was the target of the planned arson and the time frame

in which the criminal conduct allegedly occurred. We find no

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infirmity in the wording of the indictment and, therefore, reject

this assignment of error.

C. Sentencing.

The district court recognized that it could not impose a

stand-alone sentence of probation for a violation of section 844(i).

The appellant challenges this conclusion. Her assignment of error

presents questions of statutory interpretation, which entail de novo

review. United States v. Leahy, 473 F.3d 401, 405 (1st Cir. 2007).

This argument immediately runs up against a high hurdle:

the decision in United States v. Hebshie, 549 F.3d 30 (1st Cir.

2008). There, we held squarely that section 844(i) imposes a

mandatory minimum term of five years in prison. Id. at 46

(explaining that the statutory language "stating that a violator of

§ 844(i) 'shall be imprisoned' is mandatory . . . , thus requiring

a minimum five-year term of imprisonment").

The significance of Hebshie vis-à-vis the case at bar

hardly can be overstated. As a baseline proposition, newly

constituted panels of a multi-panel federal appellate court are

bound by prior panel decisions closely on point. San Juan Cable LLC

v. P.R. Tel. Co., ___ F.3d ___, ___ (1st Cir. 2010) [2010 WL

2776909, at *7]; Rodríguez-Vélez, 597 F.3d at 46; United States v.

Rodriguez, 311 F.3d 435, 438-39 (1st Cir. 2002); United States v.

Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991). Although this is not

an ironclad rule, it is subject to only narrowly cabined exceptions,

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rarely encountered. See San Juan Cable, ___ F.3d at ___ [2010 WL

2776909, at *7]; Carpenters Local Union No. 26 v. U.S. Fid. & Guar.

Co., 215 F.3d 136, 142 (1st Cir. 2000). A departure from the rule

is warranted only when the earlier holding is "contradicted by

controlling authority, subsequently announced (say, a decision of

the authoring court en banc, a Supreme Court opinion directly on

point, or a legislative overruling)," United States v. Rodríguez,

527 F.3d 221, 225 (1st Cir. 2008), or in the "rare instances in

which authority that postdates the original decision, although not

directly controlling, nevertheless offers a sound reason for

believing that the former panel, in light of fresh developments,

would change its collective mind," Williams v. Ashland Eng'g Co.,

45 F.3d 588, 592 (1st Cir. 1995).

Hebshie is a recent precedent, and the appellant has

failed to identify any controlling or persuasive authority

suggesting that it is unsound. The appellant's invocation of the

general principle that a court should consider all available

sentencing alternatives, see, e.g., United States v. Vidal-Reyes,

562 F.3d 43, 49 (1st Cir. 2009); Rodríguez, 527 F.3d at 227-28, begs

the question of whether a stand-alone sentence of probation is, in

fact, available in a prosecution under section 844(i). We think

that our holding in Hebshie necessarily eliminates lesser

punishments from the universe of available sanctions.

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 The appellant's citation of case law interpreting

similarly structured sentencing provisions lacks force. These cases

predate Hebshie, see, e.g., United States v. Martin, 363 F.3d 25,

35 (1st Cir. 2004), and thus are impuissant against the law of the

circuit rule. So, too, the pre-Hebshie Supreme Court cases cited

by the appellant. See, e.g., Jones, 529 U.S. at 857; United States

v. Ron Pair Enters., 489 U.S. 235, 240-41 (1989).

Of course, the appellant also cites Supreme Court case

law that post-dates our decision in Hebshie. These cases, however,

stand for general canons of statutory construction. See, e.g.,

Flores-Figueroa v. United States, 129 S. Ct. 1886, 1891 (2009);

Carcieri v. Salazar, 129 S. Ct. 1058, 1066 (2009). None of them

calls Hebshie into legitimate question.

The law of the circuit rule is "one of the building

blocks on which the federal judicial system rests." San Juan Cable,

___ F.3d at ___ [2010 WL 2776909, at *7]. The rule "promotes

important virtues, including humility, stability, and predictability

of outcomes within a judicial circuit." Id. at ___ [2010 WL

2776909, at *8]. There is no principled basis for disregarding the

rule here. Consequently, Hebshie controls.

The appellant advances a related contention: that a

stand-alone sentence of probation is not inconsistent with Hebshie's

holding that section 844(i) imposes a mandatory minimum five-year

incarcerative sentence. This contention was not addressed in

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Hebshie and, thus, is fair game. Nevertheless, we find it

unconvincing.

In promoting this alternative claim, the appellant relies

on 18 U.S.C. § 3561(a)(2), which authorizes a district court to

impose a sentence of probation for any defendant convicted of a

Class C or D felony unless the penalty-prescribing statute

"expressly preclude[s]" a probationary sentence. In the appellant's

view, section 844(i) does not "expressly preclude[]" probation.

This proposition is smoke and mirrors, and we repudiate

it. Accepting the notion that a stand-alone sentence of probation

can coexist, as an alternative disposition, with a mandatory minimum

term of imprisonment would be at cross purposes with congressional

intent. Any reading of a "mandatory minimum" statute that admits

of the possibility of a stand-alone sentence of probation

necessarily consigns to oblivion the obligatory prison sentence that

Congress plainly intended. A statute that prescribes a mandatory

minimum term of imprisonment necessarily (and, thus, expressly)

precludes an alternative sentence of probation. Because section

844(i) is such a statute, the appellant's argument fails.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we uphold both the convictions and the sentence in this case.

Affirmed.

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