concurring in part and dissenting in part.
I concur in Parts II.A, B, C.3, C.4, D, and E of the Court’s opinion. I also concur in the result reached in part C.2, but dissent with respect to its holding that the increased sentencing provisions of 18 U.S.C. § 844(i) define a sentencing factor and not an element of the offense. I respectfully dissent from the Court’s holding in part C.l that the interstate-commerce requirement of § 844(i) is satisfied by the mere showing that the building either was supplied with natural gas or was owned by an out-of-state resident. The statute’s language, Supreme Court precedent, and precedent of this Court make clear that the structure in question must either be used in interstate commerce or in an activity affecting interstate commerce. Since there was no showing that the defunct Ryan Fun and Fitness Center was engaged in an activity affecting interstate commerce at the time it was burned, I dissent.
*674I.
Today the Court concludes that the portion of 18 U.S.C. § 844(i) that begins, “and if death results to any person is a sentencing factor and not an element of the offense. I cannot agree with this conclusion.
The first step in determining the import of a statute is to look at the language of the statute itself. United States v. Rush, 840 F.2d 574 (8th Cir.) (en banc), cert. denied, 487 U.S. 1238, 108 S.Ct. 2908, 101 L.Ed.2d 940 (1988). The statute reads in pertinent part as follows:
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 more than ten years or fined not more than $10,000, or both ...; and if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall also be subject to imprisonment for any terms of years, or to the death penalty or to life imprisonment. ...
As the Court has recognized, Section 844(i) is far from clear. It lacks the traditional indicia of a sentence enhancement; as the Court notes, the increase in punishment upon a finding that a death has occurred is infinitely more severe, and that increase is not a multiple or a derivative of the original sentence (either of which might indicate Congress intended a sentence enhancement). The Court nonetheless concludes, in the face of the ambiguity in the statute, that its language “militates” in favor of interpreting the “if death results” provision to be a sentencing factor. This conclusion is inconsistent with the settled rule that ambiguities in criminal statutes are to be resolved in favor of the defendant, under the Rule of Lenity. Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971).
The Court attempts to support its conclusion that the “if death results” provision is a sentencing factor by pointing to legislative history. This reliance is misplaced. The Court refers to the remarks of a single Congressman, Representative Schadeberg of Wisconsin, as showing that Section 844(i) was “consistently” referred to as a “proposal to punish.” In context, the Congressman, who was neither the committee chairman nor the ranking minority member, was merely attempting to convince his colleagues that Section 844(a)-(i) was an important part of the Organized Crime Act as a whole. All discussion of penalty found in the legislative record was designed only to convince fellow members that federalization of certain classes of bombings was necessary to bring the perpetrators to justice. 116 Cong.Rec. 35298-99 (1970). The Court’s reference to Senator Thurmond’s 1984 Report for the Senate Judiciary Committee is similarly unavailing. Once again, the Court has chosen a single sentence out of context to demonstrate that the “if death results” provision is a punishment provision; the Senate Report was discussing punishment in the context of including firefighters and police within the definition of “any person.” In neither case does the legislative history address whether the “if death results” language was intended to be an element of the offense or just a sentencing factor. Finally, the legislative history is not as clear as the Court suggests. The House Judiciary Committee Report on the proposal that became the Organized Crime Act states in its reference to Section 844(i): “Existing penalties are increased and the death penalty is extended to new offenses added by the title.” H.R.Rep. No. 91-1549, 91st Cong., 2d. Sess. 5 (1970), 1970 U.S.Code Cong. & Admin.News 4011 (emphasis added).
Ultimately, the legislative history is far from clear, and, as Chief Justice Rehnquist stated in Regan v. Wald, 468 U.S. 222, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984), the statements of individual Congressmen, “unless very precisely directed to the intended meaning of particular words in a statute,” cannot take precedence over the statute’s own language. Id., at 237, 104 S.Ct. at 3055.
Since Section 844(i) is ambiguous as to whether the “if death results” provision is a sentencing factor or an element of the offense, and since the legislative history does not directly speak to and clarify this question, the Rule of Lenity requires this Court to interpret the statute in favor of the defendant. Therefore, the “if death results provi*675sion” defines an element of the offense. I nonetheless concur in the Court’s rejection of defendant’s arguments based on the failure to charge the jury that it must find that death resulted as an element of the offense, because any error on that count was cured by the District Court’s submission of the question to the jury on special interrogatories. The jury found beyond a reasonable doubt that the deaths of Firefighters Wilt and Klein resulted as a consequence of the arson; therefore, the jury in fact passed on all the elements of the crime.
II.
The Court today holds that the mere receipt of natural gas or out-of-state ownership of property is an activity sufficient upon which to base jurisdiction under 18 U.S.C. § 844(i). The Court grounds its holding on language from Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985), and United States v. Foss, 787 F.2d 393 (8th Cir.), cert. denied, 479 U.S. 888, 107 S.Ct. 286, 93 L.Ed.2d 261 (1986). The Court correctly states that these cases stand for the proposition that Section 844(i) is to be read broadly, and that Congress intended to exercise its full Commerce Clause power to protect commercial property. Russell, 471 U.S. at 860, 105 S.Ct. at 2456; Voss, 393 F.2d at 397. However, the Court bends this precedent out of shape to conclude that mere receipt of natural gas or out-of-state ownership, without any additional showing as to the use of the structure itself, satisfies the activity requirement of Section 844(i).
In Russell, the Supreme Court did say that the legislative history of Section 844(i) “suggests” that Congress intended to protect at least all business property, as this Court states; nonetheless, the Supreme Court also pointed out that “[b]y its terms, however, the statute only applies to property that is ‘med’ in an ‘activity’ that affects interstate commerce.” Russell, 471 U.S. at 862, 105 S.Ct. at 2457 (emphasis added); see also Foss, 787 F.2d at 397 (the use of the building itself must have a de minimis connection to interstate commerce). In other words, there must be a showing that there is “some interstate character to the property involved.” United States v. Mayberry, 896 F.2d 1117 (8th Cir.1990).
Ryan Fun and Fitness Center was no longer a going concern at the time it was burned. Had the business been in operation, then its use of natural gas or the fact of out-of-state ownership might be relevant to the inquiry of whether its use affected interstate commerce. Nonetheless, an inquiry into its use would still be necessary for Section 844(i) to apply. The Court relies on several cases involving businesses that had either been temporarily closed or were no longer in use to justify its holding; however, in each of these cases the business was still operational. United States v. Mayberry, 896 F.2d at 1120 (logging mill temporarily closed due to lumber shortage but ready to operate once lumber was received); United States v. Hansen, 755 F.2d 629 (8th Cir.), cert. denied, 474 U.S. 834, 106 S.Ct. 105, 88 L.Ed.2d 85 (1985) (apartment building held to be used in interstate commerce); 1 United States v. Hermes, 847 F.2d 493 (8th Cir.1988), (saloon was no longer in use but was held out by its owner as available for lease for commercial purposes).2 When the Ryan Fun and Fitness Center closed, it closed permanently and was no longer available for commercial use. Ryan had not placed the building up for sale, nor was he attempting to lease it to anyone out of state. Therefore, the building’s receipt of natural gas, without more, is insufficient to establish the necessary use in an activity that affects interstate commerce. Similarly, out-of-state ownership alone does not establish that the building’s use at the time it was burned had an effect on interstate commerce. The proper inquiry is into the function of the building itself, and then a determination of whether that function affects interstate commerce.
Further, the Court’s holding disturbs the balance between the state and federal governments by allowing federal prosecutors to bring almost any arson prosecution — tradi*676tionally a state crime — -without a clear expression of Congress’s intent to do so. Arson is a traditional common-law state crime; therefore, any federalization of arson laws must be clearly stated. United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1981) (“unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance” in the prosecution of crimes). Taken to its logical conclusion, the Court’s holding would allow the federal courts to reach almost all arson cases, regardless of whether the structure in question was business or residential. The Court’s refusal to acknowledge this fact demonstrates the fundamental flaw in its reasoning. Without an inquiry into the use of the structure, arson committed against any building, even a private home, would be a federal crime, as the Seventh Circuit recognized in United States v. Stillwell, 900 F.2d 1104 (7th Cir.), cert. denied, 498 U.S. 838, 111 S.Ct. 111, 112 L.Ed.2d 81 (1990). Congress may have the power under the Commerce Clause to reach arson committed against a private home; however, it has not chosen to exercise that power.3 I therefore respectfully dissent, and would remand this case for a new trial with proper instructions on the issue of interstate commerce.
APPENDIX
COUNT 1
Form No. 1
We, the jury, find the defendant, Dale Lynn Ryan, guilty of malicious destruction of a building by fire as charged in Count 1 of the indictment.
(s) Thomas R. Johnston FOREPERSON
Form No. 2
We, the jury, find the defendant, Dale Lynn Ryan, not guilty of malicious destruction of a building by fire as charged in Count 1 of the indictment.
FOREPERSON
QUESTIONS
(To be answered only if you have found the defendant guilty.)
(1) Do you find that the government has proved beyond a reasonable doubt that defendant’s conduct of setting the fire resulted in the death of William Klein?
Yes X No _
(2) Do you find that the government has proved beyond a reasonable doubt that defendant’s conduct of setting the fire resulted in the death of Joseph Wilt?
Yes X No _
(3) Do you find that the government has proved beyond a reasonable doubt that at the time of his death, William Klein was a volunteer firefighter in the West Burlington Volunteer Fire Department?
Yes X No _
(4) Do you find that the government has proved beyond a reasonable doubt that at the time of his death, William Klein was performing his duties as a volunteer firefighter as a direct or proximate result of defendant’s conduct of setting the fire?
Yes X No _
(5) Do you find that the government has proved beyond a reasonable doubt that at the time of his death, Joseph Wilt was a volunteer firefighter in the West Burlington Volunteer Fire Department?
Yes X No _
(6) Do you find that the government has proved beyond a reasonable doubt that at the time of his death, Joseph Wilt was performing his duties as a volunteer firefighter as a direct or proximate result of defendant’s conduct of setting the fire?
Yes X No _
(s) Thomas R. Johnston FOREPERSON
. In Russell, the Supreme Court stated that the rental of an apartment building satisfied the requirement of Section 844(i) that the building be used in an activity affecting interstate commerce. 471 U.S. at 862, 105 S.Ct. at 2457.
. The Court's reliance on the Seventh Circuit decision in United States v. Zabic, 745 F.2d 464 (1984), is also misplaced. That case, decided before Russell, held that the receipt of natural gas by a 43-unit apartment building "used exclusively for commercial purposes” provided the necessary effect on interstate commerce. But once again, the primary inquiry into the building's use had already been made, and it was determined that the building was currently in use as a commercial enterprise. It was that use that *676then affected interstate commerce. This Court today omits the necessary initial inquiry into whether the building was used in a way that affects interstate commerce.
. This conclusion is in accord with other circuits that have addressed the issue. See United States v. Mennuti, 639 F.2d 107 (2d Cir.1981) (because Congress did not exercise its commerce power to include private residences, it is limited by the language of Section 844(i)); United States v. Monholand, 607 F.2d 1311, 1316 (10th Cir.1979) (there is no indication in the statute that Congress, although it intended to have the statute broadly construed, intended everybody and everything to be included).