WILLIAM STILLWELL AND WILLIAM STEVENS, PETITIONERS V UNITED STATES OF AMERICA No. 89-7750 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-19) is reported at 900 F.2d 1104. The opinion of the district court is reported at 690 F. Supp. 641. JURISDICTION The judgment of the court of appeals was entered on April 25, 1990. The petition for a writ of certiorari was filed on June 14, 1990. The jurisdiction of the Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the receipt of out-of-state gas by a private residence constitutes a sufficient nexus with interstate commerce to bring an attempt to burn down the residence within the reach of the federal arson statute, 18 U.S.C. 844(i). STATEMENT After a jury trial in the United States District Court for the Northern District of Illinois, petitioners were convicted on one count of arson, in violation of 18 U.S.C. 844(i); one count of mail fraud, in violation of 18 U.S.C. 1341; and one count of conspiring to commit the above offenses, in violation of 18 U.S.C. 371. Petitioner Stillwell was also convicted of two additional counts of mail fraud. Petitioner Stevens was sentenced to five years' probation; petitioner Stillwell was sentenced to a prison term of one year and one day, to be followed by five years' probation. The court of appeals affirmed. Pet. App. 1-3; 690 F. Supp. at 642; Gov't C.A. Br. 4. 1. The evidence is summarized in the opinion of the court of appeals. Pet. App. 1-2. It showed that, in the summer of 1983, petitioner Stevens and Raymond Schultz agreed to accept $5,000 from petitioner Stillwell to burn down his house in Alsip, Illinois. Petitioner Stevens, in turn, hired someone he met at a bar to set the fire. Id. at 1-2. In the early morning hours of July 3, 1983, a fire was set at petitioner Stillwell's house. The fire department quickly extinguished the fire before the house was destroyed. Petitioner Stillwell later told Schultz that petitioner Stevens had arranged for the house to be set on fire but that the house "didn't hardly burn." Petitioner Stillwell then asked Schultz if he would do the job right and burn the house down completely. Schultz declined the offer and instead reported petitioners' arson activities to the FBI. Pet. App. 2. Following the July 3 fire, petitioner Stillwell submitted a claim to his insurance company. Three mailings were made in connection with the claim. Petitioner Stillwell hired an insurance adjuster who mailed a proof of loss to the insurance company, and on two occasions petitioner Stillwell mailed to the insurance company various documents that the company required in order to adjust the claim. Pet. App. 2. 2. At trial, the parties stipulated that the only nexus between petitioner Stillwell's house and interstate commerce was that Northern Illinois Gas Company supplied the house with natural gas it obtained from sources outside Illinois. Pet. App. 3. Petitioners moved for a judgment of acquittal on the ground that a private residence receiving interstate natural gas does not satisfy the interstate commerce requirement of the arson statute. /1/ The district court denied the motion. 690 F. Supp. 641. 3. On appeal, petitioners contended that the arson and conspiracy counts should be reversed. They renewed their contention that arson of a private residence receiving interstate natural gas does not satisfy the interstate commerce requirement of the arson statute; they also argued that, if it does satisfy the statutory requirement, the statute is beyond Congress's power under the Commerce Clause. The court of appeals rejected these claims. The court first held that "Congress intended Section 844(i) to reach a private residence which is supplied with interstate natural gas." Pet. App. 5. The court noted that the plain language of the statute does not exclude residences, and that, as this Court held in Russell v. United States, 471 U.S. 858 (1985), Congress intended to exercise its full power under the Commerce Clause. Pet. App. 6-10. The court of appeals recognized that the pre-Russell decision in United States v. Mennuti, 693 F.2d 107 (2d Cir. 1981) had reached a contrary result, but concluded that "the Supreme Court squarely rejected the rationale of Mennuti in Russell." Pet. App. 9. The court of appeals then went on to hold that the application of the arson statute in this case was constitutionally permissible because "Congress could rationally believe that, in the aggregate, arson of private residences supplied with interstate natural gas has more than a de minimis effect on interstate commerce." Pet. App. 13. /2/ ARGUMENT Petitioners contend that the receipt of out-of-state gas by a private residence constitutes an insufficient nexus with interstate commerce to bring an attempt to burn down the residence within the reach of the federal arson statute, 18 U.S.C. 844(i). The courts below correctly rejected this claim. As the court of appeals determined, arson of a private residence receiving interstate natural gas is within the scope of the arson statute. The statute proscribes the arson of "any building" used in an activity affecting interstate commerce; it is not limited to non-residential buildings. In Russell v. United States, 471 U.S. 858 (1985), this Court held that "(t)he reference (in the statute) to 'any building . . . used . . . in any activity affecting interstate or foreign commerce' expresses an intent by Congress to exercise its full power under the Commerce Clause." Id. at 859. See also id. at 859 n.4("Congress is aware of the distinction between legislation limited to activities 'in commerce' and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce.") (internal quotation marks omitted). Thus the language of the statute includes a private residence which is used in an activity affecting interstate commerce. /3/ As the court of appeals also concluded, moreover, application of the arson statute to residences receiving interstate natural gas is clearly within Congress's power under the Commerce Clause. Congress may regulate an activity if Congress has a rational basis for finding that the regulated activity affects interstate commerce (Hodel v. Virginia Surface Mining & Reclamation Assn, 452 U.S. 264, 276 (1981)); the relevant consideration, moreover, is the "class of activities" at issue, and courts "have no power to excise, as trivial, individual instances of (a) class" where the class is within the reach of federal power. Perez v. United States, 402 U.S. 146, 154 (1971) (internal quotation marks omitted). In light of these settled principles, the court of appeals correctly concluded that Congress had a rational basis for concluding that arson of private homes supplied with interstate natural gas has the required effect on interstate commerce. Pet. App. 13. Petitioners argue that the decision below conflicts with United States v. Mennuti, 639 F.2d 107 (2d Cir. 1981). There, the defendants were charged under Section 844(i) with destroying two private residences with explosives. Conceding that the residences were not used for commercial purposes, the government attempted to satisfy the interstate commerce requirement by showing that the residences received out-of-state electrical power, financing, insurance, and building materials. 639 F.2d at 108 n.1, 112. The Second Circuit rejected that argument, holding that, in enacting Section 844(i), Congress did not intend to reach any private residence that was not used for commercial purposes. 639 F.2d at 111-112. In so holding, the court focused on the word "used" in the statute. Id. at 109-110. The court reasoned that "Congress did not define the crime described in Section 844(i) as explosion of a building whose damage or destruction might affect interstate commerce as we assume it constitutionally could have done." Id. at 110. Instead, according to the court, Congress "chose to require that the damaged or destroyed property must itself have been used in commerce or in an activity affecting commerce." Ibid. The court concluded that a private residence that serves no commercial purpose cannot be said to be so "used." Id. at 109-110. As the court of appeals correctly concluded, the Mennuti decision cannot survive this Court's subsequent decision in Russell. In contrast to the Mennuti decision's restrictive reading of the phrase "used * * * in any activity * * * affecting interstate * * * commerce," this Court concluded that, through that language, Congress intended to exercise its full power under the Commerce Clause. 471 U.S. at 859. Indeed, contrary to the Mennuti conclusion that Section 844(i) is limited to business property, the Court in Russell stated explicitly that Congress intended to protect all business property "as well as some additional property that might not fit that description." 471 U.S. at 862. This Court's decision in Russell thus "squarely rejected the rationale" of Mennuti (Pet. App. 9), and the Second Circuit has not revisited the issue since this Court's ruling. Accordingly, petitioners' claim does not present a current conflict warranting review. /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General JOEL M. GERSHOWITZ Attorney AUGUST 1990 /1/ The arson statute makes it a crime to "maliciously damage() or destroy(), * * * by means of fire or an explosive, any building * * * used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce * * *." 18 U.S.C. 844(i). /2/ The court also rejected petitioners' contention that the prosecutor's comments during closing argument required reversal. Pet. App. 14-19. They do not seek further review of that contention in this court. /3/ In Russell, this Court also reviewed the legislative history and noted that the statute was initially limited to property used "for business purposes," and was amended to eliminate that requirement. 471 U.S. at 860-861. Although one Congressman stated that the burning of a private home would not be covered by the statute, he rested that statement on a concern about Congress's authority under the Constitution (see id. at 861-862); as the court of appeals concluded, "(t)he inference is that if a private residence did have a sufficient connection with interstate commerce to satisfy the commerce clause, the statute would cover that residence." Pet. App. 8. See also Russell, 471 U.S. at 862 ("(T)he legislative history suggests that Congress at least intended to protect all business property, as well as some additional property that might not fit that description, but perhaps not every private home."). /4/ Petitioners also rely (Pet. 4) on United States v. Vinnie, 683 F. Supp. 285 (D. Mass. 1988), in which a district court granted a motion to suppress evidence obtained from a search of a defendant's business. The warrant application had relied on probable cause to believe that the defendant had violated 18 U.S.C. 844(i) in burning his residence; the district court concluded that the claimed interstate nexus (use of the house as "payment of a debt" to an out-of-state company) could not have satisfied the jurisdictional requirement of the statute and thus the magistrate lacked jurisdiction to issue the search warrant. 683 F. Supp. at 287. Petitioners' reliance is misplaced. In addition to the fact that receipt of interstate natural gas may be distinguishable from the use of property as collateral, the Vinnie decision erroneously relies on the Second Circuit's decision in Mennuti. See Pet. App. 9. Cf. United States v. Patterson, 792 F.2d 531, 535 (5th Cir.) ("(T)he Russell analysis casts doubt on the Mennuti reasoning that the property involved must be devoted to commercial purposes before Section 844(i) applies."), cert. denied, 479 U.S. 865 (1986). But cf. United States v. Voss, 787 F.2d 393, 396-400 (8th Cir.) (citing Mennuti and holding that insurance of residence by out-of-state insurer was insufficient interstate basis for Section 844(i), but noting that different jury instruction, resting on rehabilitation of residence for resale, would have sufficed), cert. denied, 479 U.S. 888 (1986).