NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0246n.06
Nos. 10-1626; 11-1577
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Mar 02, 2012
UNITED STATES OF AMERICA, )
) LEONARD GREEN, Clerk
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
JASON TIMOTHY VARNES (10-1626); ) MICHIGAN
JEFFREY WILLIAM VARNES (11-1577), )
)
Defendants-Appellants. )
)
)
)
Before: KEITH, MARTIN, and GIBBONS, Circuit Judges.
PER CURIAM. Jason Timothy Varnes and Jeffrey William Varnes, who are represented by
counsel, appeal their convictions for arson and conspiracy to commit arson.
On February 23, 2009, brothers Jason and Jeffrey Varnes attended a late night party at which
they arranged to purchase $130 worth of cocaine from two men. Jason left the party and paid the
men, but subsequently realized that he had been cheated after the men did not return with the
cocaine. Jason found the men at an apartment. The apartment was part of a four unit complex.
Jason returned to the party, telling Jeffrey that they had been the victims of a fraud. Several hours
later, Jason and Jeffrey left the party. They drove to a gas station, filled a portable container with
gasoline, returned to the men’s apartment, and set the back porch on fire.
Jason and Jeffrey were indicted for arson and conspiracy to commit arson. At Jason’s trial,
the district court instructed the jury that the government must prove beyond a reasonable doubt that
Nos. 10-1626; 11-1577
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“the property which was damaged or destroyed was property used in or affecting interstate
commerce.” Additionally, “[r]ental residential property is included as property affecting interstate
commerce.” The jury sent a note asking whether, as a matter of law, residential rental property
affected interstate commerce, and the district court answered affirmatively. The jury convicted
Jason, and the district court sentenced him to sixty-eight months of imprisonment. Jason then filed
his timely appeal.
At Jeffrey’s trial, the district court similarly instructed the jury. The jury convicted Jeffrey,
and the district court sentenced him to eighty-seven months of incarceration. Jeffrey also appealed
his convictions. The cases were consolidated because Jason and Jeffrey raise the identical issues of
whether the district court properly instructed the jury regarding the interstate commerce element of
the offenses and appropriately declined to give their proposed instruction regarding that element.
We review the legal accuracy of the jury instructions de novo, United States v. Blanchard,
618 F.3d 562, 571 (6th Cir. 2010), and the district court’s refusal to give a proposed jury instruction
for an abuse of discretion. Id. at 573. Arson is prohibited on “any building, . . . used in interstate
or foreign commerce or in any activity affecting interstate or foreign commerce.” 18 U.S.C. § 844(i).
The Supreme Court has held that § 844(i) applies to apartment buildings used as rental property
because the rental of real estate is an activity that affects interstate commerce. Russell v. United
States, 471 U.S. 858, 862 (1985). However, in Jones v. United States, 529 U.S. 848, 855-59 (2000),
the Supreme Court held that arson of an owner-occupied private residence was not subject to
prosecution under § 844(i) because the family dwelling was not actively used for commercial
purposes. We have concluded that Jones does not affect Russell’s applicability of the arson statute
to rental property. United States v. Hang Le-Thy Tran, 433 F.3d 472, 477 (6th Cir. 2006).
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Therefore, under the circumstances of this case, the district court appropriately instructed the jury
that a residential rental property affects interstate commerce as a matter of law.
Jason and Jeffrey submitted a proposed jury instruction, based on United States v. Laton, 352
F.3d 286 (6th Cir. 2003), and United States v. Williams, 299 F.3d 250 (3d Cir. 2002), requiring that
the jury first determine the function of the building and then determine whether that function affected
interstate commerce. Laton and Williams are not applicable. Laton concerned whether a municipal
fire station qualified as a building affecting interstate commerce. Laton, 352 F.3d at 288. In
Williams, the Third Circuit used a two-step approach to conclude that the arson of a vacant rental
property affected interstate commerce. Williams, 299 F.3d at 254. Even if the Varnes’s interstate
commerce instruction had been given, the outcome would have been the same as no reasonable juror
could fail to find that the rental of the apartment affected interstate commerce. See United States v.
Khalil, 279 F.3d 358, 364-66 (6th Cir. 2002). Accordingly, the district court did not abuse its
discretion in refusing to give the proposed jury instruction.
The district court’s judgments are affirmed.