Opinion
Crim. No. 01-236 (JRT/FLN)
April 17, 2003
Joan D. Humes and Michael Cheever, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, MN, for plaintiff.
Virginia G. Villa, Assistant Federal Defender, FEDERAL PUBLIC DEFENDER, Minneapolis, MN, for defendant.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL
On June 25, 2002, a jury found defendant Gary S. Corum ("Corum") guilty of three counts of intentionally obstructing or attempting to obstruct the free exercise of religious beliefs by threat of force in violation of 18 U.S.C. § 247(a)(2), and three counts of using a telephone to threaten to injure members or damage or destroy property of three area synagogues in violation of 18 U.S.C. § 844(e). Corum now moves for a judgment of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure.
BACKGROUND
Corum was found guilty of leaving threatening messages on the voice mail systems of three Twin Cities area synagogues: Mt. Zion Temple, Bet Shalom Congregation, and Bais Yisroel Synagogue/Bais Yaakov School. The voice messages, which were received on July 28, 2001, threatened the use of explosives, fire and/or a dangerous weapon to burn down or blow up the synagogues. The messages also threatened to harm synagogue members.
Corum was found guilty of violating two statutes. Counts 1-3 of the indictment alleged that Corum violated 18 U.S.C. § 247(a)(2). This statute makes it a crime to intentionally obstruct or attempt to obstruct, by force or threat of force, any person's enjoyment of her free exercise of religious beliefs, where the offense is in or affects interstate commerce. 18 U.S.C. § 247(a)(2). Counts 4-6 of the indictment alleged that Corum violated 18 U.S.C. § 844(e), which punishes anyone who
through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce, or in or affecting interstate or foreign commerce, willfully makes any threat, or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive. . . .18 U.S.C. § 844(e).
Corum now moves for acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure on Counts 1-3, arguing that the Government did not meet its burden of proving beyond a reasonable doubt that the offense was in or affected interstate commerce as required in 18 U.S.C. § 247(b). Corum also moves for acquittal on Counts 4-6, arguing that he did not use an instrumentality of interstate commerce to make his threats.
ANALYSIS
"Jury verdicts are not lightly overturned." United States v. Hood, 51 F.3d 128, 129 (8th Cir. 1995). The Court must deny Corum's motion if the Court finds that a reasonable jury, viewing the evidence in the light most favorable to the Government, could have found each of the essential elements of the crime beyond a reasonable doubt. United States v. Moyer, 182 F.3d 1018, 1021 (8th Cir. 1999).
I. Counts 1-3
Corum was found guilty on Counts 1-3 of violating the Church Arson Prevention Act of 1996, 18 U.S.C. § 247(a)(2). This statute prohibits a person from intentionally obstructing or attempting to obstruct, by force or threat of force, any person in the enjoyment of that person's free exercise of religious beliefs, provided that "the offense is in or affects interstate or foreign commerce." 18 U.S.C. § 247(a)(2). The offense in this case is the intentional obstruction of or attempt to obstruct the enjoyment of the free exercise of religious beliefs of the members of each of the area synagogues.
Corum contends that the "offense established in § 247 is making threats directed at obstructing another in the free exercise of his or her religion." (Def. Br. at 5.) This reading is at odds with the plain language of the statute, which states that it applies to anyone who "intentionally obstructs, by force or threat of force, any person in the enjoyment" of that person's free exercise of religion. 18 U.S.C. § 247(a)(2) (emphasis added). It is clear from this passage that the offense is to "obstruct." Force and threats of force are simply the two ways that a person may carry out this offense. The Court recognized this in its Order denying Corum's pre-trial motions. See United States v. Corum, Civ. No. 01-236, 2002 WL 1285078 at *3 (D.Minn. June 5, 2002).
Corum first argues that he must be acquitted because the Government did not prove that his actions had any actual effect on interstate commerce. Although Corum is correct that the government must show some effect on interstate commerce, Corum is wrong that the government must show that anyone's rights were actually obstructed. Corum's argument ignores the fact that § 247(a)(2) punishes not only actual obstruction of the free exercise of religion, but also punishes attempts to do so. See 18 U.S.C. § 247(a)(2). Thus, the jury could have found Corum guilty under Counts 1-3 even if it determined that nobody's right to free exercise was obstructed, as long as Corum took a substantial step toward such obstruction. Jury Instruction Numbers 15-17 reflect this principle.
Corum also misconstrues the quantum of effect on interstate commerce required by § 247. Corum cites the United States Supreme Court's decision in United States v. Morrison, 529 U.S. 598 (2000), and suggests that the Government must show a "substantial connection" between his offense and interstate commerce. Corum contends that the Government has not done so. The Court notes that the jury was specifically instructed that it did not need to find a substantial connection with interstate commerce, but only that Corum's acts "affected interstate commerce to some extent, however slight." (Jury Instr. No. 14.) The present formulation of § 247 is relatively new, and the Eighth Circuit has not yet analyzed the degree of effect required to establish federal jurisdiction under the statute. The little authority that does exist is split between requiring a "substantial connection," which Corum favors, and the approach in this Court's jury instructions, which required only a de minimis connection with interstate commerce.
Two recent Court of Appeals cases have addressed this question. The most recent is the Eleventh Circuit's decision in United States v. Ballinger, 312 F.3d 1264 (11th Cir. 2002), in which a split panel reversed the district court's ruling that a de minimis connection to interstate commerce could sustain federal jurisdiction. Id. at 1273. The district court in Ballinger had followed the holding in United States v. Grassie, 237 F.3d 1199 (10th Cir. 2001), in which the Tenth Circuit upheld a jury instruction similar to Instruction Number 14 here, providing that if the jury found even a slight effect on interstate commerce, the defendant could be convicted under § 247. Id. at 1208-09. The majority opinion in Ballinger noted, but disagreed with Grassie.
In Ballinger, the Eleventh Circuit considered whether the destruction of several churches could be prosecuted under § 247. The churches in that case had a variety of dealings in interstate commerce. The majority held that in order to satisfy the jurisdictional nexus of § 247, an offense must, by itself, substantially affect interstate commerce, and that a de minimus effect on interstate commerce was not sufficient to exercise federal jurisdiction over the defendant's crimes. Id. at 1271.
Here, Corum does not dispute that the Government presented evidence that all three synagogues were involved in interstate commerce to some degree. For example, Mount Zion Temple pays dues to a central organization with offices in other states, has members who reside in other states and in other countries, regularly hosts guest speakers from other states and from Israel, and runs a gift shop that sells merchandise from around the world. Bet Shalom Congregation is a member of a national organization to which it pays dues, hosts visitors from other states, and purchases religious articles across state lines. Bais Yisroel/Bais Yaakov frequently hosts guests from other states, and sponsors students who attend camp in other states. Although most of these dealings appear to be more significant than those of the churches in Ballinger, for purposes of argument the Court assumes that the contacts are equally significant. See United States v. Ballinger, 312 F.3d 1264,1266-67 (11th Cir. 2002).
The majority opinion in Ballinger is contrary to this Court's Instruction Number 14, which told the jury it need only find that Corum's acts "affected interstate commerce to some extent, however slight." (Jury Instr. No. 14.) This instruction is based upon the "aggregation" principle, under which Congress may regulate individual intrastate activities that alone may not substantially affect interstate commerce, but that in the absence of national regulation, "would undercut a larger regulatory scheme affecting interstate commerce." Id. at 1270. See Wickard v. Filburn, 317 U.S. 111 (1942). Aggregation applies when a "general regulatory statute bears a substantial relation to commerce, and the de minimis character of individual instances arising under that statute is [thus] of no consequence." Ballinger, 312 F.3d at 1270 (quoting Maryland v. Wirtz, 392 U.S. 183, 196 n. 27 (1968), overruled on other grounds, National League of Cities v. Usery, 426 U.S. 833 (1976)) (emphasis added). The Supreme Court has held, however, that aggregation applies only to intrastate activities that are commercial or economic in nature. Wickard v. Filburn, 317 U.S. 111 (1942); Ballinger, 312 F.3d at 1270.
In holding that aggregation does not apply under § 247, the Ballinger majority relied heavily on the U.S. Supreme Court's decisions in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000). In Lopez, the Court found that the Gun Free Schools Act exceeded Congress's authority under the Commerce Clause by making the knowing possession of a firearm in a school zone a federal offense. Lopez, 514 U.S. at 567-68. The Lopez opinion rested on four primary reasons. First, the offense had "nothing to do with commerce or any sort of economic enterprise." Id. at 561. Second, the statute contained no jurisdictional element tying the regulation to Congress's Commerce Clause power. Id. at 562. Third, Congress made no findings regarding the effects upon interstate commerce of possession of a gun in a school zone. Id. at 562-63. Fourth, the Court found that any links between gun possession and a substantial affect on interstate commerce were highly attenuated. Id. at 563-67; Morrison, 529 U.S. at 612.
In Morrison, the Court held a provision of the Violence Against Women Act unconstitutional. Morrison, 529 U.S. at 617-18. The Court recognized that Congress had made "numerous" findings about the effect of violence against women on interstate commerce, but noted that such findings alone were not sufficient to uphold the statute. Id. at 614. Even with such findings, the Court still held the provision unconstitutional because it was a non-economic crime and because the statute contained no jurisdictional element. Id. at 612-18.
The Ballinger majority held that despite legislative findings and a jurisdictional restriction in § 247, that statute may constitutionally apply only where each offense has a substantial effect on interstate commerce. Ballinger, 312 F.3d at 1270. The majority stated that to hold otherwise would be contrary to the Supreme Court's mandate in Lopez and Morrison that Congress cannot regulate non-economic crimes of violence unless they have a substantial effect on interstate commerce. Id. at 1272. In other words, Ballinger held that a de minimis connection to interstate commerce is sufficient only for offenses that are economic or commercial in nature. Id. The Ballinger majority concluded that the offense of arson under § 247 is non-economic, so a de minimis effect is insufficient under that statute. Id. at 1271.
This Court disagrees, and finds that Lopez and Morrison do not prohibit convictions under § 247 based upon a de minimis effect on interstate commerce. See id. at 1281 n. 1 (Hall, C.J., dissenting).
Because § 247 has an express jurisdictional element and is supported by congressional findings on interstate commerce, see Grassie, 237 F.3d at 1209, the only ground upon which the Ballinger majority can claim support from Lopez and Morrison is its finding that § 247 is a purely non-economic statute. Indeed, the Supreme Court's decisions in those cases rested significantly upon the fact that the statutes they overturned were completely non-economic. See Morrison, 529 U.S. at 612 (stating that the "non-economic, criminal nature of the conduct at issue" was "central" to the Court's decision in Lopez and is vital in the Court's Commerce Clause analysis).
The Ballinger majority asserted that "§ 247 regulates the activity of arson. . . ." Ballinger, 312 F.3d at 1271 (emphasis original). The majority thus concluded that because arson — like violence against women and possession of guns near schools — is not an economic matter, the offense under § 247 "itself [must] substantially affect interstate commerce," and a de minimis effect is not sufficient. Id. (emphasis original). This is where the majority's logic falters.
Section 247 does not mention arson at all, only mentioning intentional obstruction of free exercise of religion. See 18 U.S.C. § 247(a)(2). Without explanation, the Ballinger majority interpreted this provision to mean simple "arson." One explanation may lie in the cases upon which the Ballinger majority relies for its holding that the government must show a substantial effect on interstate commerce, Jones v. United States, 529 U.S. 848 (2000), and United States v. Odom, 252 F.3d 1289 (11th Cir. 2001). Both of these cases held that arson is a particularly non-economic and intrastate offense, and that a substantial connection to interstate commerce is needed to bring arson under federal purview. Jones, 529 U.S. at 854-55; Odom, 252 F.3d at 1296. Both Jones and Odom, however, dealt with 18 U.S.C. § 844(i), a different statute than the one at issue here and in Ballinger. Section 844(i) is explicitly devoted to arson, and federalizes the offense when it is committed upon property "used in" interstate commerce. 18 U.S.C. § 844(i). Section 247 contains no such specific references (does not even mention arson), and, in the view of this Court, the Ballinger majority was wrong to conclude that § 247, a statute designed to protect houses of worship, regulates nothing more than the local crime of arson. Indeed, the statute's purpose and legislative history indicate that the opposite is true.
It is well established that when Congress employs a phrase such as "used in" interstate commerce, rather than "affecting" interstate commerce, it intends to exercise less than its full power under the Commerce Clause. Jones, 529 U.S. at 854. The Court notes that § 247 employs the broader formulation "in or affects" interstate commerce, and therefore signals Congress's intent to exercise its full regulatory authority under the Commerce Clause. 18 U.S.C. § 247(b); Jones v. United States, 529 U.S. 848, 854 (2000); United States v. Grassie, 237 F.3d 1199, 1209 (10th Cir. 2001).
Section 247 was amended to its present form by the Church Arson Prevention Act of 1996, Pub.L. No. 105-155, 110 Stat. 1392 (1996), and was enacted to counter a rash of arsons and attacks on houses of worship across the nation. See Grassie, 237 F.3d at 1209 (discussing the legislative history and purpose of § 247). For the Ballinger majority to identify the offense targeted by § 247 as mere "arson" thus ignores the purpose of the statute and the facts of its own case. It is clear to this Court that, contrary to the conclusion in Ballinger, § 247 is distinct from § 844(i) in that it does not regulate the general "activity of arson," but — in this case — regulates the activity of arson of a synagogue.
This distinction is significant because mere arson, as the Ballinger majority notes, is not necessarily an offense related to commerce. Ballinger, 312 F.3d at 1271-72. Arson of a church or synagogue, however, may be an economic offense. Houses of worship do engage in economic activity that effects interstate commerce, as the Eleventh Circuit itself has noted. See Odom, 252 F.3d at 1294-95 (stating that "churches can and do engage in commerce" when they engage in activities related to their "business" as churches). See also Camps Newfoundland/Owatonna v. Town of Harrison, 520 U.S. 564 (1997) (holding that Congress may regulate charitable and non-profit entities under its Commerce Clause power). Thus, because synagogues are involved in commerce, an attack upon them can be an economic offense under § 247, even if it may not be so under § 844(i). This is consistent with Congress's intention that § 247 would expand federal jurisdiction over attacks to houses of worship. See Grassie, 237 F.3d at 1209.
Although the Court in Odom found the connection between a church and interstate commerce to be too attenuated, Odom dealt with an explicitly intrastate, non-economic crime, arson, under § 844(i). See United States v. Odom, 252 F.3d 1289, 1297 (11th Cir. 2001). Thus, Morrison and Lopez did require a substantial connection to interstate commerce in that case.
Comparing the facts of this case with Supreme Court precedents also shows that the Ballinger majority incorrectly assumed that the offense described in § 247 is non-economic. In Lopez, the Supreme Court observed that the prohibition on possessing a gun in a school zone had "nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." Lopez, 514 U.S. at 561. In Morrison, the Court found that "[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity." Morrison, 529 U.S. at 613. The Supreme Court has noted that determining "whether an intrastate activity is commercial or noncommercial may in some cases result in legal uncertainty." Lopez, 514 U.S. at 566. That uncertainty is clearly present in this case, and may have resulted in the Ballinger majority's determination. Nevertheless, § 247's prohibition of acts that threaten houses of worship in or affecting interstate commerce clearly has a far stronger connection to commercial activity than the statutes it held unconstitutional in Lopez and Morrison. As discussed above, precedent establishes that houses of worship do engage in commerce. See Ballinger, 312 F.3d at 1282 (Hall, C.J., dissenting) ("Churches . . . facilitate the interchange of ideas, goods and services across a religious community that may span multiple states, as well as between that community as such and the outside world. This is paradigmatic `commerce'."). This Court therefore finds that attacks or threats to attack houses of worship are commercial or economic in nature. See United States v. Furrow, 125 F. Supp.2d 1178, 1182 (C.D. Calif. 2000) (holding that violent conduct that interferes with a person's civil rights "necessarily implicates commerce"). In keeping with Lopez and Morrison, the Court finds that the aggregation principle does apply here, and that the instruction permitting a conviction based upon a de minimis affect on interstate commerce was correct. Because Corum does not dispute that the three synagogues in this case were involved in interstate commerce, his motion for acquittal must be denied on this ground.
II. Counts 4-6
Corum next challenges his conviction for willfully making threats to use fire or explosives "through the use of the telephone" or other instrument of interstate commerce, in violation of 18 U.S.C. § 844(e). Corum argues that because his threatening telephone calls were all intrastate, they do not meet the requirements of § 844(e). Corum alternatively argues that if § 844(e) extends to regulate purely intrastate telephone use, the statute is unconstitutional as an abuse of Congress's authority under the Commerce Clause. The Court rejected these arguments prior to trial, and the passage of time has not added to their merit.
Corum first argues that § 844(e) requires the Government to establish a nexus between his threat and interstate commerce. Because it has failed to do so, he contends, his conviction must be reversed. Corum principally relies upon United States v. Rea, 300 F.3d 952 (8th Cir. 2002), which held that the Government did not establish a sufficient nexus between a bombed church and interstate commerce. Id. at 959-60. Rea, however, is inapposite here because that case dealt with a different statute, 18 U.S.C. § 844(i). That statute punishes the destruction of property that is "used in" interstate commerce, and thus requires a showing in each case that the offense was connected to interstate commerce. 18 U.S.C. § 844(i). See Jones, 529 U.S. at 854. Section § 844(e), however, requires no such showing; the statute's very text contains the essential nexus to interstate commerce, mandating that the offense be committed "through the use of the . . . telephone . . . or other instrument of interstate commerce." 18 U.S.C. § 844(e). Indeed, as Corum notes, under § 844(e), the "federal nexus is . . . the means of communicating [the] threat." (Def. Br. at 8.) The statute thus requires no nexus beyond a showing that Corum used a telephone to make his threat. The evidence clearly shows this, and Corum's contention that § 844(e) is unsatisfied must therefore fail.
Corum next argues that Congress does not have the authority to regulate purely intrastate telephone calls. Corum correctly notes that Congress may regulate "instrumentalities" of interstate commerce, but argues that because his phone calls were all intrastate, "there is no evidence that the telephone, as used in this case, was an `instrumentality of interstate commerce.'" (Def. Br. at 8.) Corum's argument fails because no evidence needs to be introduced on this point. As the Government notes, it is axiomatic that telephones, even when used intrastate, are instrumentalities of interstate commerce. United States v. Weathers, 169 F.3d 336, 341 (6th Cir. 1999); United States v. Gilbert, 181 F.3d 152, 157-59 (1st Cir. 1999); United States v. Marek, 238 F.3d 310, 318 (5th Cir. 2001) (en banc) (finding that intrastate use of wire transfer constituted use of interstate commerce for federal murder-for-hire statute, and noting that intrastate use of telephones, bank ATMs, automobiles, and airplanes have all provided a jurisdictional nexus for federal crimes); United States v. Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997).
Corum's use of a telephone to make his threats, even if the calls were made intrastate, were sufficient to grant federal jurisdiction over his crime pursuant to Congress's power under the Commerce Clause.
ORDER
Based on the foregoing, and all of the records, files and proceedings herein, IT IS HEREBY ORDERED that defendant's motion for judgment of acquittal [Docket No. 96] is DENIED.