No. 99-1283
In the Supreme Court of the United States
SURESH KUMAR, AKA SAM KUMAR, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
DAVID S. KRIS
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether 18 U.S.C. 844(i) (Supp. IV 1998), which prohibits the destruction
by fire of a building or other property "used in interstate or foreign
commerce or in any activity affecting interstate or foreign commerce,"
was properly applied to a hotel that served interstate guests, had a franchise
contract with an out-of-state franchiser, and was insured by an out-of-state
insurance company.
In the Supreme Court of the United States
No. 99-1283
SURESH KUMAR, AKA SAM KUMAR, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-38a) is unpublished, but
the decision is noted at 187 F.3d 639 (Table).
JURISDICTION
The judgment of the court of appeals was entered on July 19, 1999. A petition
for rehearing was denied on September 3, 1999 (Pet. App. 39a). The petition
for a writ of certiorari was filed on December 2, 1999. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court for the Western
District of Kentucky, petitioner was convicted of conspiracy, in violation
of 18 U.S.C. 371; arson resulting in death and injuries, in violation of
18 U.S.C. 844(i) (Supp. IV 1998) and 18 U.S.C. 2; and mail fraud, in violation
of 18 U.S.C. 1341. He was sentenced to life imprisonment and was ordered
to pay $28,506.92 in restitution. C.A. App. 74-80 (Judgment). The court
of appeals affirmed. Pet. App. 1a-38a.
1. In March 1995, petitioner formed a corporation for the purpose of purchasing
a Howard Johnson hotel in Bowling Green, Kentucky. The corporation purchased
the hotel for $960,000. Pursuant to its license agreement, the corporation
was given 90 days to make $431,000 in improvements to bring the hotel up
to quality assurance standards. The hotel suffered financial problems, and
by May 1995 it was listed for sale. Petitioner and his brother-in-law hired
a man to burn down the hotel. The fire was set on January 6, 1996. It resulted
in the deaths of four people and injuries to 15 others. Petitioner filed
an insurance claim for more than $4.5 million against an insurance company
located outside the State. Pet. App. 1a-3a, 37a.
Petitioner was convicted of violating (inter alia) 18 U.S.C. 844(i) (Supp.
IV 1998). Section 844(i) establishes criminal penalties for any person who
"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." Section 844(i) provides
for increased penalties (including the death penalty or life imprisonment)
if death results from the offense.
2. The court of appeals affirmed. Pet. App. 1a-38a. Petitioner contended,
inter alia, that the evidence was insufficient to establish the nexus between
the victimized property and interstate commerce that Section 844(i) requires.
The court of appeals rejected that claim, explaining that "[t]he 'used
in interstate commerce' element [of the statute] is satisfied if the government
proves that the building in question has some relationship to an activity
of a commercial nature." Id. at 37a. The court found that the Howard
Johnson hotel bore the requisite relationship to commercial activity:
In this case, the government introduced evidence that guests staying at
the hotel traveled in interstate commerce, as the Howard Johnson operated
as a commercial business, providing temporary services to people traveling
in interstate commerce, that the hotel had an insurance contract with an
out-of-state insurance company, and that the hotel had a franchise contract
with an out-of-state franchiser, which resulted in regular mail and telephone
communication. The law required only a minimal connection between the property
and some aspect of interstate commerce, and the government produced adequate
proof at trial to show that the hotel had a substantial effect on interstate
commerce. We therefore find that sufficient evidence supports [petitioner's]
§ [844(i)] conviction.
Ibid.
ARGUMENT
Petitioner contends (Pet. 13-23) that the connections to interstate commerce
in this case are insufficient to satisfy Section 844(i) and the Constitution.
He also observes (Pet. 21) that the Court recently granted certiorari in
Jones v. United States, No. 99-5739 (argued Mar. 21, 2000), to decide whether
"Section 844(i) applies to the arson of a private residence; and if
so, whether its application to the private residence in the present case
is constitutional." 120 S. Ct. 494 (1999). Petitioner's legal arguments
are without merit, and the Court's decision in Jones is unlikely to affect
the proper disposition of this case. The petition for a writ of certiorari
should be denied.
Section 844(i) applies to the arson of any building or other property "used
in interstate or foreign commerce or in any activity affecting interstate
or foreign commerce." In Russell v. United States, 471 U.S. 858 (1985),
this Court upheld a federal conviction for arson involving a two-unit apartment
building used as rental property. The Court recognized that Section 844(i)'s
"reference 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. The Court observed
that "the legislative history [of Section 844(i)] 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." Id. at 862. Consistent with the decision in Russell, the courts
of appeals have uniformly recognized that the destruction of commercial
or business property is within the reach of Section 844(i) and the commerce
power. See, e.g., United States v. Serang, 156 F.3d 910, 913-914 (9th Cir.),
cert. denied, 525 U.S. 1059 (1998); United States v. Ruiz, 105 F.3d 1492,
1499-1500 (1st Cir. 1997).
The petition for certiorari need not be held pending the decision in Jones.
The question presented in Jones, as formulated by this Court, specifically
concerns the application of Section 844(i) to the destruction of residential
property. See 120 S. Ct. 494 (1999). The decision in Jones is therefore
unlikely to affect the disposition of this case or to upset the settled
law that now prevails in the courts of appeals concerning the application
of Section 844(i) to business property.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
DAVID S. KRIS
Attorney
APRIL 2000