United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 4, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
_____________________ Clerk
No. 02-10932
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BYRON DAWES,
Defendant-Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CR-288-1-P
_________________________________________________________________
Before JOLLY, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Byron Dawes was convicted on a three-count indictment for mail
fraud (18 U.S.C. § 1341), arson (18 U.S.C. § 844(i)), and using a
fire to commit a felony (18 U.S.C. § 844(h)) in connection with a
fire that destroyed Dawes’s dry cleaning business. Dawes was
sentenced to 171 months’ imprisonment, five years’ supervised
release, and restitution. Dawes appeals this conviction asserting
four points of error. We AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
First, Dawes alleges that the jury instruction was erroneous
because it required jurors to find only an “effect” on interstate
commerce under 18 U.S.C. § 844(i). Instead, he argues that United
States v. Lopez, 514 U.S. 549, 559 (1995), requires that the jury
should have been instructed that a substantial effect on commerce
must be found. “Challenges to jury instructions are reviewed to
determine whether the court’s charge, as a whole, is a correct
statement of the law and clearly instructs jurors on the legal
principles at issue.” United States v. Jennings, 195 F.3d 795, 801
(5th Cir. 1999). Contrary to Dawes’s assertions, this Court
requires only an effect on interstate commerce, not a substantial
effect. See id.; United States v. Robinson, 119 F.3d 1205, 1212-15
(5th Cir. 1997). Moreover, arson fires involving commercial rental
properties, like Dawes’s business, affect interstate commerce.
Jones v. United States, 529 U.S. 848, 852-53 (2000); Russell v.
United States, 471 U.S. 858, 859-62 (1985). As such, the district
court committed no error; its instructions constituted “a correct
statement of the law” and “clearly instruct[ed] jurors on the legal
principles at issue.” Jennings, 195 F.3d at 801.
Second, Dawes argues that his convictions for mail fraud and
use of fire to commit a felony under 18 U.S.C. §§ 1341 and 844(h)
should be reversed because the district court lacked jurisdiction.
A claim that the district court lacked jurisdiction may be raised
for the first time on appeal and is reviewed de novo. United
States v. Henry, 288 F.3d 657, 660 (5th Cir. 2002), cert. denied,
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123 S.Ct. 224 (2002). Specifically, Dawes contends that the arson
conviction, upon which these convictions are based, is purely a
state offense and, as such, lacks the requisite nexus to federal
jurisdiction. This claim is without merit. As discussed supra,
jurisdiction over the arson count is established as a result of its
effect on interstate commerce.
Third, Dawes argues that 18 U.S.C. § 844(i) and (h) are void
for vagueness under Lopez. This Court reviews whether a statute is
void for vagueness de novo. United States v. Monroe, 178 F.3d 304,
308 (5th Cir. 1999). Specifically, Dawes asserts that he was not
on notice that conduct having a “de minimis” effect on interstate
commerce violated federal law. However, this argument is
predicated on the notion that Lopez altered the analysis of the
extent to which an individual act of arson must have affected
interstate commerce for federal jurisdiction to attach, which we
have rejected earlier. This argument is similarly meritless.
Finally, Dawes argues that the search of his home was
unconstitutional and evidence thus seized should have been
suppressed. When reviewing the denial of a motion to suppress,
factual findings are reviewed for clear error and the sufficiency
of the warrant is reviewed de novo. United States v. Cherna, 184
F.3d 403, 406 (5th Cir. 1999); United States v. Cavazos, 288 F.3d
706, 709 (5th Cir. 2002), cert. denied, 123 S.Ct. 253 (2002).
Dawes argues that the evidence should have been excluded because
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the affidavit supporting the warrant omitted the fact that an
accelerant-detecting dog had not detected chemical accelerants on
Dawes’s person. In cases where the officers have a search warrant,
the district court must be affirmed if the good faith exception to
the exclusionary rule applies. Cavazos, 288 F.3d at 709. Only if
this exception does not apply will a court determine if the
magistrate had a substantial basis for finding probable cause. Id.
In this case the district court properly applied the good faith
exception because the omission was not intentional and the omitted
information was not material or dispositive. See United States v.
Davis, 226 F.3d 346, 351 (5th Cir. 2000)(requiring the omitted
information to be relevant and dispositive); United States v.
McCarty, 36 F.3d 1349, 1356 (5th Cir. 1994) (requiring omission
from affidavit to be intentional).
Second, because Dawes did not request an opportunity to
present evidence, the district court did not err in failing to hold
an evidentiary hearing. See Franks v. Delaware, 438 U.S. 154, 155-
156 (1978). Lastly, the search was not unreasonable under FED. R.
CRIM. P. 41, because that rule is inapplicable considering the
search warrant was issued by a state judge at the request of a
state officer. United States v. Rivas, 99 F.3d 170, 176 (5th Cir.
1996) (citing United States v. McKeever, 905 F.2d 829, 832 (5th
Cir. 1990)).
For the foregoing reasons, the judgment is AFFIRMED.
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