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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. 11th Cir. Reverses Church Arson Statute Conv


In U.S. v. Ballinger (PDF), No. 01-14872, (Nov. 21, 2002), the Eleventh Circuit Court of Appeals reviewed the defendant's conviction under the federal church arson statute. It reversed them.

Jay Scott Ballinger pled guilty to four counts of church arson in violation of 18 U.S.C. 247(a)(1). He also pled guilty to one count providing for enhanced penalties for violation of the statute "if death results from [the defendant's] acts," 18 U.S.C. 247(d)(1) or "if bodily injury results to any person . . . and the violation is by means of fire . . . ." 18 U.S.C. 247(d)(2). Pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, Ballinger conditioned his plea upon a judicial determination of the constitutionality of 247, both on its face and as applied to him. The district court upheld the constitutionality of the statue in both respects, an appeal followed.

The district court recited the following facts, stipulated to by Jay Scott Ballinger and the government, as relevant to the constitutional issues. Jay Scott Ballinger deliberately set fire to five churches in the Northern and Middle Districts of Georgia between December 22, 1998, and January 16, 1999. Ballinger's fires completely destroyed the Amazing Grace Baptist Church in Chatsworth, Georgia ("Amazing Grace"), the New Salem United Methodist Church in Commerce, Georgia ("New Salem"), and the fellowship hall of the Sardis Full Gospel Church in Monroe, Georgia ("Sardis Full Gospel"). The New Salem fire resulted in the death of one volunteer firefighter and bodily injury to three other firefighters. Ballinger's two additional fires badly damaged the Johnson United Methodist Church in Watkinsville, Georgia ("Johnson United") and the fellowship hall of the Mountain View Baptist Church in Chatsworth, Georgia ("Mountain View").

Prior to its destruction, Amazing Grace had purchased song books from Knoxville, Tennessee, pew coverings and hymnals from Cleveland, Tennessee, and fund-raising supplies (candy) from Montgomery, Alabama. Its 300-member congregation, some of whom resided in neighboring Tennessee, had recently purchased the church building and one acre of land from the North Georgia Conference of the United Methodist Church, headquartered in Evanston, Illinois. To finance this acquisition and repair storm damage, the congregation held yard sales, bake sales, and sold cookbooks. The congregation commissioned the printing of these cookbooks in Collierville, Tennessee. Amazing Grace also collected donations for the poor, some of which were provided to needy travelers in the form of food, household items, and hotel or motel lodging.

Mountain View, a 372-member congregation, had acquired Bible school materials from California, building supplies from Alabama and other out-of-state vendors, and plumbing and electrical supplies from Collierville, Tennessee. The church belonged to the 14-member Coosawattee Baptist Association and donated money to the Georgia Baptist Children's Home, which provided housing, clothing, food, and classroom instruction to foreign children intercepted by the United States Immigration and Naturalization Service, as well as children from other domestic states. In 1998, Mountain View donated $ 1,536 in such funds. The church contributed an additional $ 1,536 to Georgia Baptist Hospital's indigent-care fund which, in part, provided medical services to children whom its doctors brought to Georgia from the Dominican Republic, Russia, and various South American countries. At the time of the fire, at least one of Mountain View's members was living out-of-state; this member was serving in the United States military but returned to the church while on leave. Mountain View also used a fifteen-passenger van shipped from Orlando, Florida to transport its youth choir and elderly women's groups.

Sardis Full Gospel, a 60-member congregation, regularly held week-long revivals, hosting visiting pastors from Canada, Florida, Mississippi, Ohio, and South Carolina. These out-of-state pastors would either stay with church members, in a local hotel, or in the church itself, which was equipped with showers and sleeping facilities. Further, the congregation prepared and served meals to the visiting pastors in its fellowship hall, which defendant destroyed on December 25, 1998. The church had also acquired, via donation, a fax machine/copier from Panasonic, Inc., a donation that was approved by the company's New Jersey headquarters.

Like Amazing Grace, New Salem was a member of the North Georgia Conference of the United Methodist Church, whose national headquarters were in Evanston, Illinois. Through this conference, New Salem, which had roughly 120 members at the time of its destruction, regularly sent money to the national office. The national office used these funds for a variety of purposes, including foreign and domestic missions. To subsidize its pastor's pension, New Salem also contributed, through the conference, to the Illinois-based pension administrator. The church property itself was held in trust for the General Conference of the United Methodist Church in Illinois.

Prior to its destruction, New Salem had acquired office supplies from Ottawa, Illinois; Bible school materials from Grandview, Missouri; banners from Nashville, Tennessee; church bulletin and newsletter-making materials from Canton, Ohio; and a steeple from Alabama. The congregation had several out-of-state members and several out-of-state recipients of its monthly newsletters. To finance youth group trips and outings, including trips to Orlando, Florida and Chattanooga, Tennessee, New Salem members held fund-raising barbeques, bake sales, car washes and sold candy.

Johnson United, a 132-member congregation, also belonged to the North Georgia Conference of the Evanston, Illinois-based United Methodist Church, to which it regularly sent monetary apportionments. Like New Salem, Johnson United subsidized its pastor's pension plan and health insurance by contributing, through the conference, to the United Methodist Church's General Board of Pension and Health Benefits. The church property itself was held in trust for the General Conference of the United Methodist Church in Illinois. Several of Johnson United's members lived in other states, including Illinois, yet continued to attend services. Additionally, the congregation purchased Sunday school and Bible school materials from Nashville, Tennessee; Boy Scout and Girl Scout troops used the church for meetings; and the church served as a voting precinct for citizens in its district.

All five of the damaged or destroyed churches received annual visits from the Nashville, Tennessee-based Gideon Bible Ministry, which conducted worship services and collected monetary donations used for placing Bibles throughout the United States and in 175 different countries. Further, all five of the churches purchased all of their propane gas from out-of-state suppliers, though local services delivered it. Mountain View was also insured by an out-of-state carrier, Church Mutual Insurance Company of Wisconsin.

Finally, the parties agreed that Ballinger and his girlfriend, Angela Wood, traveled in interstate commerce to commit the arsons, purchasing goods and services en route, including the gasoline used to start the fires.

Title 18 U.S.C. 247(a)(1) provides that whoever "intentionally defaces, damages, or destroys any religious real property, because of the religious character of that property, or attempts to do so" is guilty of a federal crime. Ballinger concedes that he committed the church arsons with which he was charged, but contends that the district court should have, nevertheless, dismissed the indictments against him because 247 is unconstitutional both on its face, and as applied to him.

Ballinger claims that the statute is unconstitutional on its face because its enactment exceeded Congress' authority under the Commerce Clause. The court disagreed.

Congress' authority under the Commerce Clause extends to the regulation of activities which are in or affect interstate commerce. United States v. Lopez, 514 U.S. 549, 559, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995). Congress included within 247 a jurisdictional element which expressly requires the government to prove this interstate commerce nexus. 18 U.S.C. 247(b). The statute applies only when "the offense is in or affects interstate or foreign commerce." Id. In the absence of sufficient proof of the interstate commerce connection, the statute does not apply to the arson charged. Id. The court previously held that a statute enacted under the Commerce Clause is constitutional on its face if it contains a jurisdictional element that "ensures, through case-by-case inquiry, that the activity in question affects interstate commerce." United States v. Cunningham, 161 F.3d 1343, 1346 (11th Cir. 1998) (quoting Lopez, 514 U.S. at 562). The court concluded, therefore, that Congress did not exceed its authority under the Commerce Clause when it enacted 18 U.S.C. 247, and the statute is constitutional on its face.

Ballinger claims that 247 does not apply to the acts for which he was convicted, namely the arson of five small, rural churches in Georgia, because there was an insufficient connection between these arsons and interstate commerce, as required by the Constitution. If so, the Constitution forbids the application of the statute to him.

The court had to decide all statutory issues, however, before addressing constitutional ones. United States v. Odom, 252 F.3d 1289, 1293 (11th Cir. 2001) ("A fundamental and long-standing principle of judicial restraint requires that a court avoid reaching constitutional questions in advance of the necessity of deciding them") (citing Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 99 L. Ed. 2d 534, 108 S. Ct. 1319 (1988)). Since 247 contains an express jurisdictional element requiring that the charged arson be "in or affect interstate commerce," whether the statute applies to Ballinger's arsons, is, in the first instance, an issue of statutory interpretation. The court must decide what burden the jurisdictional element of 247 places upon the government, and whether the government met this burden. If the government did so, then and only then, should the court address any remaining constitutional issues.

Section 247(b) extends federal jurisdiction to the arson of religious real property when the "offense is in or affects interstate commerce." Ballinger contends that this language requires the government to prove that his arsons had a substantial effect on interstate commerce. The government contends that by using these words Congress intended to invoke its full power under the Commerce Clause, so that even a de minimis connection between Ballinger's arsons and interstate commerce satisfies the statute. As the court had not previously construed the jurisdictional element of 247, this is an issue of first impression in the 11th Circuit.

Under the authority of the Commerce Clause, Congress may always regulate the instrumentalities and the use of the channels of interstate commerce. Lopez, 514 U.S. at 558-59. The instrumentalities of interstate commerce are those "persons or things" that move in interstate commerce, including all cars and trucks, ships, aircraft and anything else that travels across state lines, as do interstate shipments. Id. The channels of interstate commerce include interstate highways, shipping lanes, rivers, lakes, canals, railroad track systems, the mail, telegraph lines, air traffic routes electronic and all other modes of interstate or foreign movement of commerce. Id. The instrumentalities and channels of interstate commerce encompass the concept of movement of commerce across state lines, and there has never been any serious question about Congress' authority to regulate and protect them. Id.

Arson, however, is a an activity. Furthermore, it is a purely intrastate activity. Therefore, it is neither an instrumentality nor a channel of interstate commerce. For a long time in our jurisprudence, congressional authority to regulate such intrastate activities was not recognized by the Supreme Court. United States v. E.C. Knight Co., 156 U.S. 1, 12, 39 L. Ed. 325, 15 S. Ct. 249 (1895) ("Commerce succeeds to manufacture and is not part of it"). Later, the Court recognized the necessity to protect interstate commerce from the burdens and obstructions that might be imposed by intrastate activities that have a "close and substantial relation" to it. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 81 L. Ed. 893, 57 S. Ct. 615 (1937). Under such circumstances, the Court held, the regulation of intrastate activities that "affect" interstate commerce is within Congress' commerce power. Id. at 37.

Recently, the Court has acknowledged that, within this last category of regulation, its "case law has not been clear whether an activity must 'affect' or 'substantially affect' interstate commerce in order to be within Congress' power to regulate it under the Commerce Clause." Lopez, 514 U.S. at 559. The Court concluded, however, that the "great weight" of its decisions make clear that a "substantial effect" on interstate commerce is constitutionally required. Id. See also United States v. Robertson, 514 U.S. 669, 671, 131 L. Ed. 2d 714, 115 S. Ct. 1732 (1995) ("the 'affecting commerce' test . . . defines the extent of Congress's power over purely intra state commercial activities that nonetheless have substantial inter state effects") (emphasis in original)).

Thus, Congress' power to regulate intrastate activities is more limited than is its power to regulate the instrumentalities and channels of interstate commerce. Whereas Congress may regulate any instrumentality or channel of interstate commerce, the Constitution permits Congress to regulate only those intrastate activities which have a substantial effect on interstate commerce, and such regulation of purely intrastate activity reaches the outer limits of Congress' commerce power.

To hold otherwise, the Court noted, would "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Lopez, 514 U.S. at 567. This the Constitution does not permit. Id.; see also Maryland v. Wirtz, 392 U.S. 183, 197, n. 27, 20 L. Ed. 2d 1020, 88 S. Ct. 2017 (1968) (the Constitution does not permit Congress to use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities).

It is in this sense that the government is correct when it says that 247(b)'s punishment of church arsons that "affect" interstate commerce invokes Congress' full power under the Commerce Clause. Such regulation of a purely intrastate activity - arson - invokes Congress' full authority under the Commerce Clause not because it may, but because it must.

The talismanic repetition over the years of the phrase "fullest extent" of congressional commerce power has led some to confuse this concept of the outer limits of congressional authority for an independent grant of authority. Somewhere along our jurisprudential way, the mantra developed that "de minimis" effects are sufficient when Congress invokes its "full authority" through regulation of an activity "in or affecting" interstate commerce. In fact, just the opposite is true. When Congress pushes its commerce power to its constitutional limit by seeking to regulate a purely intrastate activity, only a substantial effect on interstate commerce by that activity will do.

Perhaps this confusion springs from a failure to distinguish between regulation of economic as opposed to non-economic activity. When the regulated intrastate activity is a commercial or economic one, the Constitution permits the required substantial effect on interstate commerce to be located in the aggregate impact of the regulated activity upon interstate commerce. Wickard v. Filburn, 317 U.S. 111, 87 L. Ed. 122, 63 S. Ct. 82 (1942). The Court has held that "where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence." Wirtz, 392 U.S. at 197, n. 27. The Constitution permits such aggregation of effects to justify congressional regulation of purely intrastate economic activity when the absence of such regulation would undercut a larger regulatory scheme affecting interstate commerce. Lopez, 514 U.S. at 561.

No such aggregation of local effects is constitutionally permissible in reviewing congressional regulation of intrastate, non-economic activity. United States v. Morrison, 529 U.S. 598, 617, 146 L. Ed. 2d 658, 120 S. Ct. 1740 (2000). Where such regulation is at issue, the Constitution requires that the activity, by itself, have economic consequences that substantially affect interstate commerce. Lopez, 514 U.S. at 561. No aggregation of local effects is permissible to elevate a non-economic activity's insubstantial effect on interstate commerce into a substantial one in order to support federal jurisdiction. Id.

This is especially true when Congress seeks to federalize common-law state crimes. Morrison, 529 U.S. at 617. In Morrison, the Court explicitly "rejected the argument that Congress may regulate non-economic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce." Id. n4 The Court made clear that "a fair reading of Lopez shows that the non-economic, criminal nature of the conduct at issue was central to our [rejection of such regulation] in that case." 529 U.S. at 610. n5 Recently, we have recognized and applied the Court's clarification of this distinction. United States v. Gray, 260 F.3d 1267, 1273-74 (11th Cir. 2001) (reaffirming that a de minimis effect is sufficient under Hobbs Act because "the Supreme Court's rejection of an aggregation theory" for regulation of non-economic activity is "wholly inapposite" to Hobbs Act which "plainly and undeniably regulates economic activity").

To allow Congress to regulate local crime on a theory of its aggregate effect on the national economy would give Congress a free hand to regulate any activity, since, in the modern world, virtually all crimes have at least some attenuated impact on the national economy. Morrison, 529 U.S. at 615. Furthermore, it would transfer to Congress a general police power that the Constitution denies the federal government and reposes in the states. Id. at 618 ("The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved interstate commerce has always been the province of the States).

The court concluded that 247 regulates the activity of arson and applies to the church arson, which, by itself, substantially affects interstate commerce. See Lopez, 514 U.S. at 559-61; Morrison, 529 U.S. at 617.

Support for the conclusion is in two recent decisions rejecting the government's expansive view of Congress' authority to regulate local, non-economic, criminal activities. In Jones v. United States, 529 U.S. 848, 859, 146 L. Ed. 2d 902, 120 S. Ct. 1904 (2000), the Court was called upon to interpret the federal omnibus arson statute, 18 U.S.C. 844, which extends federal jurisdiction over the burning of any real property "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce."

The government, seeking to prosecute the arson of an owner-occupied, private residence, invoked the mantra that Congress' use of the words "affecting" interstate commerce signaled Congress' intent to exercise its full authority under the Commerce Clause. The Court, however, held that the receipt of natural gas, a mortgage and an insurance policy from out-of-state were insufficient to establish that the residence was used in an activity affecting interstate commerce. Id. at 857. The Court rejected these connections as too de minimis, holding that 844 "does not reach an owner-occupied residence that is not used for any commercial purpose." Id. "Given the concerns brought to the fore in Lopez," the Court wrote, "it is appropriate to avoid the constitutional question that would arise were we to read 844(i) to render the 'traditionally local criminal conduct' in which petitioner Jones engaged 'a matter for federal enforcement.'" Id. at 858. (quoting United States v. Bass, 404 U.S. 336, 350, 30 L. Ed. 2d 488, 92 S. Ct. 515 (1971)). n7 The Court concluded that 844 is not "soundly read to made virtually every arson in the country a federal offense." Id.

In Odom, the court was asked to interpret the constitutional reach of 844. The government sought to apply the statue to the arson of a church. As did the Jones Court, we asked first whether 844 could ever apply to the arson of such property. Unlike the private residence in Jones, however, we recognized that, although a church is not ordinarily considered a business enterprise, "churches can and do engage in commerce." 252 F.3d 1289, 1294.

Since 844 might apply to a church, we were required to determine what quantum of interstate commerce connection would satisfy the statute's jurisdiction element. The court observed, first, that, in view of Lopez and Morrison, the "mere engagement in commercial activities may not necessarily provide the requisite nexus between the function of the [church] and interstate commerce." 252 F.3d 1289, 1295. In order to avoid the constitutional problem that would arise were 844(i) interpreted to apply to criminal conduct without a sufficient interstate commerce nexus, the court concluded that its jurisdictional element had to be construed in accord with the requirements of the Commerce Clause, as explained in Lopez, Morrison, and Jones. Id. Thus, it held that 844 requires the government to prove that the burned churches activities had a "substantial effect" on interstate commerce." 252 F.3d 1289, 1297:

Allowing the government to meet the interstate commerce requirement through only a nominal showing of a connection to interstate commerce would do as much to 'completely obliterate' the distinction between national and local authority as if no jurisdictional requirement existed at all. The presence of a jurisdictional element may preserve the constitutionality of the statute so long as a case-by-case analysis requires sufficient proof of a connection to interstate commerce. Otherwise, Congress could circumvent the requirement of the constitution's interstate commerce clause by inserting a jurisdictional element into every statute and allowing the government to rely on the most minimal proof of that element. (emphasis added)

252 F.3d 1289, 1296 (citations omitted).

The court rejected the government's argument that it could rely on the aggregate effect on interstate commerce of local church arsons in order to justify federal jurisdiction under 844. 252 F.2d 1289, 1297. It held that "the Morrison court clearly rejected Congress' ability to 'regulate [non-economic criminal ] conduct based solely on that conduct's aggregate effect on interstate commerce.'" Id.

After reviewing the evidence, it concluded that "the Government has failed to set forth sufficient evidence establishing that St. Joseph's Baptist Church, the building destroyed by Defendants' act of arson, was used in or affected interstate commerce according to the requirements of 844(i)," and it reversed the defendants' convictions. Id.

As the court did with 844, it avoided construing 247's jurisdictional element in a way that would bring it into conflict the Constitution. Since the Constitution requires a substantial interstate commerce nexus before Congress can regulate an intrastate activity, 247(b) requires the government to prove that each of Ballinger's church arsons had a substantial effect on interstate commerce.

The only issue remaining in this case was whether the stipulated facts were sufficient to establish that each of Ballinger's arsons had a substantial effect on interstate commerce. If not, the trial court should not have accepted Ballinger's guilty plea and entered a judgment of guilty.

The arson of a church has a substantial effect on interstate commerce if its activities prior to the arson substantially affected interstate commerce and the arson of that church terminated those activities. The final issue in this case, then, is whether each of these churches' activities substantially affected interstate commerce.

The government argues that the stipulated facts recited above attest to the many and varied connections between these churches and interstate commerce. The problem with this argument, however, is that we have previously rejected many of these connections as insufficient to establish the requisite substantial effect.

In Odom, the court specifically considered many of these same putative interstate connections: donations from out-of-state donors; use of Bibles and prayer books that were purchased from out-of-state vendors; and contributions to out-of-state church organizations through membership in intrastate church organizations. It held that "these 'connections' to interstate commerce are too passive, too minimal and too indirect to substantially affect interstate commerce." 252 F.3d at 1297.

The Fifth Circuit has also rejected some of the government's other theories of the interstate connection in this case: membership in an intrastate church organization that contributed financially to the national church organization that then redistributes the money throughout the world; receipt of insurance proceeds from an out-of-state insurer. United States v. Johnson, 246 F.3d 749, 752 (5th Cir. 2001). These connections were not substantial enough to provide factual support for a guilty plea. Id.

Similarly, in United States v. Rea, the Eight Circuit held that the churches use of materials and natural gas purchased in interstate commerce were insufficient to prove the requisite effect on interstate commerce. 223 F.3d 741 (8th Cir. 2001).

At least one district court has found connections similar to those posited here to be insufficient. United States v. Rayborn, 138 F. Supp. 2d 1029, 1036 (W.D. Tenn. 2001) (money spent on goods and services including radio broadcasts, food, flowers, and groceries).

The only remaining evidence of an interstate connection offered by the government is attendance at the churches by out-of-state members and hosting of out-of-state guests such as visiting pastors. The dissent argued that the provision of spiritual services to out-of-state members and guests "demonstrates active employment in interstate commerce." Although the court did say in Odom that the "business" of a church might involve the provision of spiritual services, n10 these out-of-state memberships, like the churches' other connections to interstate commerce, are too insubstantial to support federal jurisdiction. At most, the evidence was that three of the five churches had some out-of-state members. One of these had only one such member - a military man whose permanent residence was in-state. Of the other two, the evidence was only that they had "some" out-of-state members. These memberships do not substantially affect interstate commerce.

Taken separately, the connections of each church to interstate commerce are too insubstantial to satisfy the jurisdictional element of 247. Nor can we aggregate the effects of all five arsons in order to reach the level of effect on interstate commerce required by the statute. Morrison, 529 U.S. at 617; Odom, 252 F.3d at 1297. Although the destruction of these churches undoubtedly had economic consequences, the mere existence of such consequences does not trigger 247. While Ballinger's crimes are heinous, they are state crimes. To allow the government to prosecute him for these arsons would be to obliterate the distinction between national and local authority that undergirds our federal system of government. Lopez, 529 U.S. at 617-18. 247 did not apply to Ballinger's arsons. Section 247 required proof of a substantial affect on interstate commerce by each charged church arson. That proof being insufficient in this case, Ballinger's convictions were reversed.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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