[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 96-3621 ELEVENTH CIRCUIT
Non-Argument Calendar 08/31/98
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 3:96-CR-21/RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER DASCENZO
a.k.a.
Christopher Marcus Dascenzo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 31, 1998)
Before EDMONDSON, BLACK and HULL, Circuit Judges.
EDMONDSON, Circuit Judge:
Defendant-Appellant Christopher Marcus Dascenzo appeals
his convictions for various firearms and explosives offenses,
violating 18 U.S.C. §844(i), 18 U.S.C. 924(c)(1), and 26 U.S.C.
§§5841, 5845, 5861(d), and 5871. Only Defendant’s challenges
about section 844(i) warrant discussion.1 No reversible error has
been shown; we affirm.
The government introduced evidence that three pipe
bombs, comprising the destructive device, were placed by
Defendant outside the front gate (near the front door) of a home.
One of the three bombs detonated while the bomb squad
attempted to render it safe. The resulting explosion destroyed
the fence, cracked the concrete area where it detonated, and
sent fragments through the wall of the house. The home was
1
Defendant raises several issues on appeal. All lack
merit, but most are not discussed in this opinion.
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used as a rental property and was being rented when the bomb
was found.
Section 844(i) makes it a crime maliciously to damage or
destroy, or attempt to damage or destroy, by an explosive, a
building “used in interstate or foreign commerce or in any
activity affecting interstate or foreign commerce.” Defendant
claims that the government failed to present sufficient evidence
that the home damaged by the pipe bomb had a sufficient effect
on interstate commerce.2
In Russell v. United States, 105 S.Ct. 2455, 2457 (1985), the
Supreme Court was faced with an issue of statutory
construction. In the course of construing section 844(i), the
Court took into account that Congress wished to use its full
2
Defendant also claims that the government failed to
establish that the pertinent home was rental property. But
the government introduced testimony from the owner of the
home that he rented the house to others. The government
also presented the testimony of the person renting the house
at the time of the criminal act. Defendant presented no
contrary evidence.
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powers under the Commerce Clause. The Court concluded that
Congress, in enacting section 844(i), “intended to protect all
business property, as well as some additional property that
might not fit that description, but perhaps not every private
home.” Deciding that a two-unit apartment used as a rental
property falls within section 844(i), the Supreme Court wrote:
By its terms, however, the statute only applies to
property that is “used” in an “activity” that affects
commerce. The rental of real estate is unquestionably
such an activity. . . . [T]he local rental of an apartment
unit is merely an element of a much broader
commercial market in rental properties. The
congressional power to regulate the class of activities
that constitute the rental market for real estate
includes the power to regulate individual activity
within that class.
Id.
Because the government in the present case introduced
evidence from which a rationale trier of fact could conclude that
the building where the bomb was placed was used as a rental
property, Russell points to an affirmance. Defendant argues,
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however, that United States v. Lopez, 115 S.Ct. 1624 (1995),
controls this case. He says that after Lopez a “substantial
effect” on interstate commerce must be proved for the property
involved in each criminal act.
In Lopez, the Supreme Court was confronted with a facial
challenge to the constitutionality of the Gun-Free School Zones
Act. Thus, by relying on Lopez, Defendant’s challenge to the
sufficiency of the evidence must necessarily include a
constitutional challenge: Defendant, in effect, challenges the
statute’s constitutionality as applied to him.3 As such, this
constitutional challenge is a question of law to be decided by the
Defendant frames his issue as one of sufficiency of the
3
evidence and asserts that he is not challenging the
constitutionality of the statute. But because of his reliance
on Lopez, we interpret Defendant, in effect, to be arguing
both (1) that insufficient evidence existed upon which the
court could conclude that the statute is constitutional as
applied to Defendant -- that is, Congress lacked the
constitutional authority under the Commerce Clause to apply
the statute to Defendant’s crime -- and (2) that insufficient
evidence existed to satisfy the statutory requirements of
section 844(i).
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court. See United States v. Hicks, 106 F.3d 187, 190 (7th Cir.),
cert. denied, 117 S.Ct. 2425 (1997). And, cases discussing Lopez
and relying upon its rationale are necessarily addressing the
constitutionality of the statute; Lopez establishes no rules of
statutory construction.
I. Constitutionality Under Lopez
Lopez was a constitutional law decision. It struck down the
Gun-Free School Zones Act, 18 U.S.C. §992(q)(1)(A), which
criminalized the knowing possession of a firearm in a school
zone. Lopez identified three broad categories of activities which
Congress could regulate pursuant to the Commerce Clause: (i)
the use of channels of interstate commerce; (ii) the
instrumentalities of interstate commerce or persons or things in
interstate commerce; and (iii) activities having a substantial
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relation to interstate commerce.4 Id. at 1629-30. Analyzing
section 992(q) under the third category, the Court concluded that
the activity regulated must “substantially affect” interstate
commerce to be within Congress’s power to regulate. Id. at
1630. The Supreme Court concluded that Congress exceeded
its Commerce Clause authority in section 922(q) because the
statute “neither regulates a commercial activity nor contains a
requirement that the possession [of the gun] be connected in
any way to interstate commerce.” Id. at 1626 (emphasis added).
Nothing in Lopez challenges Congress’s power to regulate
conduct, including non-economic conduct (such as arson), if
Congress has a rational basis to determine that the criminalized
conduct substantially affects interstate or foreign commerce.
4
Cases under section 844(i), given the statute’s
language, may fall within either category 2 or 3 of the kind of
regulation permitted under the Commerce Clause: regulation
of the instrumentalities of interstate commerce or regulation
of activities having a substantial relation to interstate
commerce. See United States v. Chowdhury, 118 F.3d 742,
745 (11th Cir. 1997).
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See id. at 1630. Post-Lopez challenges to the facial
constitutionality of section 844(i) have been rejected, apparently
concluding that Congress did have a rational basis for
determining that the arson of property used in commerce or in
an activity affecting interstate commerce substantially affects
interstate or foreign commerce. See United States v. Grimes,
142 F.3d 1342, 1346 (11th Cir. 1998) (collecting cases).
Also, in contrast to the Gun-Free School Zones Act, the
federal arson statute, section 844(i), does contain an element
expressly requiring connection to commerce, a connection like
that to which Lopez alluded. By its very terms, section 844(i) is
limited to property “used in interstate or foreign commerce or in
any activity affecting interstate or foreign commerce.” So, it
would seem that this statutory element removes section 844(i)
from the constraints of the “substantial effect” standard
established in Lopez. Lopez’s “substantial effect” standard has
been said to be inapplicable to other statutes with express
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effect-on-commerce requirements similar to section 844(i).5 See
United States v. Castleberry, 116 F.3d 1384, 1387 (11th Cir. 1997);
United States v. Chisholm, 105 F.3d 1357, 1358 n.3 (11th Cir.
1997); United States v. McAllister, 77 F.3d 387, 390 (11th Cir.
1996); see also United States v. Jackson, 111 F.3d 101 (11th Cir.
1997); Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995).
But to support the claim that constitutionally insufficient
evidence existed to prosecute him under section 844(i),
Defendant cites, in addition to Lopez, this court’s decision in
United States v. Denalli, 73 F.3d 328 (11th Cir.), modified, 90 F.3d
444 (11th Cir. 1996). In Denalli, the defendant’s conviction under
section 844(i) was reversed because the government proved no
substantial effect of the activity on interstate commerce:
Where a statute includes a requirement that, in each
5
case, some effect on commerce be shown, the Supreme
Court’s concern in establishing the “substantial effect”
standard in Lopez -- that is, that no connection to interstate
commerce might exist in a specific case -- is alleviated.
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Denalli involved the arson of a private home occupied by its
owners.
The decision in Denalli rested on the panel’s application of
Lopez. And Denalli seems to have read Lopez to impose -- for
constitutional law purposes -- an additional burden on the
government when enforcing legislation founded on Congress’s
authority to regulate activities that substantially affect interstate
commerce: the burden to establish that the property underlying
each case was used in an activity that substantially affects
interstate commerce.
We doubt Lopez requires this additional burden for statutes
-- like section 844(i) -- containing an express requirement that
the crime or the property involved in the crime be connected in
some way to interstate commerce.6 See Lopez, 115 S.Ct. at 1626.
6
Lopez, as a matter of constitutional law, only requires
that the entirety of the “activity” regulated by the statute
“substantially affect” interstate commerce. Lopez does not
require a substantial effect on interstate commerce to result
from each individual criminal act or from the specific
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Addressing other statutes with similar requirements as section
844(i) that an effect on commerce exist, this circuit has
consistently, except perhaps in Denalli, considered Lopez
inapplicable: Lopez does not affect the constitutionality of
statutes which expressly require an effect on commerce as an
element of the crime. See, e.g., Castleberry, 116 F.3d at 1387;
property involved in each criminal act.
Much of the confusion about section 844(i) and the
application of Lopez to that statute seems to stem from the
use of the term “activity.” In evaluating the connection to
interstate commerce in cases involving section 844(i), the
term activity can be used in two different contexts: (1) a
constitutional law context, and (2) a criminal law, statutory
context.
In the constitutional law context, Lopez used “activity”
to refer to the entirety of conduct sought to be regulated by
Congress in enacting a statute. In this context, the “activity”
regulated by section 844(i) is arson of property used in
commerce or used in an activity affecting commerce.
Because section 844(i) requires a connection to commerce,
the “activity” regulated by Congress in section 844(i) is
clearly within Congress’s constitutional authority.
In the criminal law context, section 844(i) itself also
expressly uses the term “activity.” But “activity” in the
statute is used in a different, narrower sense: to refer to the
actual property impacted on by the criminal act at issue.
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Jackson, 111 F.3d at 101; Chisholm, 105 F.3d at 1358 n.3;
McAllister, 77 F.3d at 390; see also Cheffner, 55 F.3d at 1520.
In Denalli, the court required, before application of section
844(i) to the defendant would be constitutional, a substantial
effect on interstate commerce by the criminal act at issue: arson
of a private home occupied by its owners.7 Subsequent section
844(i) cases have acknowledged (but questioned) Denalli’s
expansive application of the “substantial effect” standard. See,
e.g., United States v. Viscome, 144 F.3d 1365, 1369 n.9 (11th Cir.
1998). We question it, too.
Most important, Denalli dealt with a specific set of facts: a
purely private residence occupied by its owners. And the
decision was that the facts of Denalli, as a matter of
Again, we conclude because of the reliance on Lopez,
7
the panel in Denalli was deciding what they saw as an issue
of constitutional law and was reviewing the sufficiency of the
evidence of effect on commerce for constitutional defects.
Lopez did not involve 844(i) and could control no other issue
in Denalli.
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constitutional law, could not support a prosecution under
section 844(i). That decision may be correct.8 But whatever our
view may be on its correctness, we are bound by the decision.
So, in like cases, we will follow it to make sure that like cases
have a like result. But the case now before us is different.
Even under Denalli’s “substantial effect” standard, section
844(i) was constitutional as applied to Defendant in the case
before us. Our case presents a different factual setting than
Denalli: here, the arson of rental property. And, rental property,
in the aggregate, has a substantial effect on interstate
commerce. See generally Russell, 105 S.Ct. at 2457 (“[T]he local
rental of an apartment unit is merely an element of a much
broader commercial market in rental properties.”); see also
Chowdhury, 118 F.3d at 744-45; United States v. McMasters, 90
F.3d 1394, 1399 (8th Cir. 1996) (renting house is the sort of
Even a minimal effect on commerce may not have been
8
shown in Denalli.
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economic activity that might, through repetition elsewhere,
substantially affect interstate commerce); cf. Belflower v. United
States, 129 F.3d 1459, 1462 n.4 (11th Cir. 1997) (“Denalli simply
seems to represent the unusual and rare case envisioned by the
Supreme Court [in Russell] when it recognized that ‘perhaps not
every private home’” will be covered under section 844(i).).
Aggregation of the effects on commerce of a given activity
(such as, the renting of property) to determine whether a
substantial effect on commerce exists is an approach to
Commerce Clause legislation recognized by the Supreme Court.
See Lopez, 115 S.Ct. at 1631 (Congress’s constitutional authority
to regulate an activity will be upheld where the activity “arise[s]
out of or [is] connected with a[n act], which viewed in the
aggregate, substantially affects interstate commerce.”).
The arson of rental property in general has a substantial
effect on interstate commerce. Thus, criminalization and
punishment of the arson of such property is within Congress’s
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authority under the Commerce Clause. And, because sufficient
evidence shows that the home damaged by Defendant was rental
property, Defendant’s argument based on Lopez is rejected. The
Constitution was satisfied.
II. Statutory Requirements of Section 844(i)
While the regulated activity may, in the aggregate, be
required to have a substantial effect on interstate commerce,
this requirement is a condition to section 844(i)’s
constitutionality; as such, it presents an issue of constitutional
law for the court to resolve but is no element of the crime. See
Hicks, 106 F.3d at 190. As a matter of criminal law, the jury need
only find what the language of the statute requires to convict:
the use of the damaged property in commerce or in an activity
affecting interstate commerce. See United States v. Wing, 104
F.3d 986, 991-92 (7th Cir. 1997).
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The statute requires that the property involved in the arson
have some effect on interstate commerce: no requirement of
“substantial effect” is set out. Our judgment that a conviction
for a section 844(i) violation is sustainable with no individualized
finding for each act of “substantial effect” finds support in
decisions of other circuits. See, e.g., United States v. Tocco, 135
F.3d 116, 123-24 (2d Cir.), cert. denied, 118 S.Ct. 584 (1998);
Hicks, 106 F.3d at 190 (government only required to “establish
a minimal connection between the property at issue and some
aspect of interstate commerce”); United States v. Melina, 101
F.3d 567, 572-73 (8th Cir. 1996).
Where, as here, the pertinent property is being used as
rental property, it fits squarely within the teachings of Russell;
sufficient evidence was presented to satisfy the statutory
requirement that the property be used in an activity affecting
commerce. The criminal law was satisfied. Again, other circuits
have reached the same result. See, e.g., Tocco, 135 F.3d at 124
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(proof that building was rented at time of arson conclusively
establishes requisite connection between burned building and
interstate commerce); United States v. Gomez, 87 F.3d 1093,
1094 (9th Cir. 1996) (acknowledging Russell’s per se rule that all
rental property sufficiently affects interstate commerce to satisfy
section 844(i)).
In addition, the district court’s instruction to the jury that,
for purposes of the criminal statute, residential rental property
“is considered as being used in or affecting interstate commerce
even if it has a minimal effect on interstate commerce” is not
error. This statement is a correct statement of the statutory
requirement under section 844(i).
AFFIRMED.
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