United States v. Odom: the Eleventh Circuit Substantially Affects Federal Criminal Law Through Its Constitutional Analysis of the Jurisdictional Element of Section 844(i) - Alex Khoury

• Jurisdiction: United States,Federal
• Publication year: 2002
• Citation: Vol. 53 No. 4

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United States v. Odom: The Eleventh Circuit Substantially Affects Federal Criminal Law Through Its Constitutional Analysis of the Jurisdictional Element of Section 844(i)

In United States v. Odom,¹ the Eleventh Circuit Court of Appeals reversed a conviction under 18 U.S.C. Sec. 844(i)² for the arson of a rural African-American church because the Government failed to establish a sufficient nexus between the church and interstate commerce.³ The court of appeals held that because arson was not an economic activity, the Government could not rely on the aggregate effects of church burning in order to show a substantial effect on interstate commerce.⁴

I. Facts

On June 30, 1997, appellants Alan Odom and Brandy Boone attended a party in Little River, Alabama. Appellants and others left the party to search for an abandoned car they could set on fire, and they pur- chased gasoline from a local gas station for that purpose. Unable to find a car to burn, Boone suggested they "burn the nigger church."⁵

The partygoers broke into St. Joseph's Baptist Church and "set fire to a sofa and some curtains."⁶ Another partygoer persuaded the group to put out the fire. After extinguishing the fire, the group left the church. Odom and another partygoer later returned and burned down the church.⁷

A grand jury charged Odom, Boone, and others with the following:

[C]onspiracy to commit an offense against the United States, damaging religious property because of the religious character of the property, use of fire or explosive to commit a felony prosecutable in federal court, damage or destruction by means of fire or explosive of any property used in interstate commerce or in any activity affecting interstate commerce and aiding and abetting an offense against the United States.⁸

At trial the Government established St. Joseph's connection to interstate commerce by showing that (1) the church had purchased one Bible, three hymnals, and other Sunday School materials from Tennessee; (2) natural gas used to heat the building was supplied from Mississippi; (3) the church received donations from two out of state residents; and (4) the church paid dues to a church association with interstate affiliations.⁹

The jury convicted Odom of violating, attempting to violate, and conspiracy to violate 18 U.S.C. Sec. 844(i).¹⁰ The jury convicted Boone of conspiring to violate 18 U.S.C. Sec. 844(i).ⁿ On appeal, the Eleventh Circuit reversed the appellants' convictions under Sec. 844(i) because the Government failed to establish a sufficient nexus with interstate commerce to satisfy the jurisdictional element of the section.¹²

II. Legal Background

A. A Brief History of Commerce Clause Interpretation

Article I, section 8 of the United States Constitution provides that "Congress shall have the Power . . . [t]o regulate Commerce . . . among the several States . . . ."¹³ The extent of Congress's grant of power from this clause has fluctuated through the years, cycling between periods of expanded and restricted legislative power.¹⁴

In 1824 the Supreme Court began defining the scope of Commerce Clause power in Gibbons v. Ogden.^u In that case, Chief Justice Marshall broadly defined "[c]ommerce . . . among the several states" to allow Congress to regulate virtually any commercial activity that affected more than one state.¹⁶

The Court's position on the extent of Congress's power under the Commerce Clause began to change toward the end of the nineteenth century. For fifty years, beginning in 1887, a conservative Supreme Court limited Congress's power to enact economic regulations by narrowly defining commerce as a distinct phase in business, separate from mining, manufacturing, or production.¹⁷ The Court also curtailed Congress's control of commerce by redefining "among the States" to include only activities having a direct effect on interstate commerce.¹⁸ The Court went further in limiting Congress's ability to regulate commerce by reserving certain activities for state regulation and disallowing congressional intervention in those activities, even if that intervention was otherwise within the legislature's power.¹⁹

Between the late 1930s and early 1940s, the Court made a drastic reversal in its strict interpretation of the Commerce Clause. Seeking to broaden Congress's ability to enact economic regulations, the Court relaxed its scrutiny of Congress's power under the Commerce Clause by giving the legislature the ability to regulate production and manufacturing through the regulation of interstate shipping.²⁰ Shortly thereafter, in 1942, the Court abandoned the "direct effect on interstate commerce" requirement and began to allow Congress to regulate commerce when the aggregate effect of the local economic activity to be regulated had a substantial effect on interstate commerce.²¹

During this return to an expansive interpretation of Congress's power under the Commerce Clause,²² many federal criminal statutes were passed and upheld by the Court, including 18 U.S.C. Sec. 844(i), which was enacted in 1970.²³ Congress used its ability to aggregate the effects of local activities to show an effect on interstate commerce and justify its regulation of disparate, noneconomic activities such as loan sharking,²⁴ racial discrimination,²⁵ and arson.²⁶

Then, in 1995, the Supreme Court decided United States v. Lopez.²⁷ In a surprising five to four decision, the Court struck down the Gun-Free School Zones Act²⁸ because the Act exceeded Congress's Commerce Clause authority.²⁹ The case involved Alfonso Lopez, a twelfth grade student who carried a concealed handgun to school in Texas. Lopez was arrested and charged with violating the Gun-Free School Zones Act. He moved to dismiss the charge on the ground that the Act was unconstitutional, but the district court denied the motion. Lopez was later convicted and sentenced to six months imprisonment.³⁰ On appeal, the Fifth Circuit held that the Gun-Free School Zones Act was beyond Congress's authority under the Commerce Clause and reversed the conviction.³¹

The Supreme Court affirmed the Fifth Circuit decision, holding that the Act was a "criminal statute that by its terms ha[d] nothing to do with 'commerce' or any sort of economic enterprise . . . ."³² Also fatal to the Act was the lack of a jurisdictional element that would "ensure, through case by case inquiry, that the firearm possession in question affects interstate commerce."³³ This decision marked the end of over five decades of expansive Commerce Clause interpretation.³⁴

Five years later, the Supreme Court decided United States v. Morrison³⁵ and ended any doubt that the Court intended to reign in Congress's authority under the Commerce Clause. Morrison was charged with raping a fellow student at Virginia Polytechnic Institute. Morrison successfully challenged the constitutionality of 42 U.S.C. Sec. 13981,³⁶ which provided a federal remedy for victims of gender motivated violence. The Government maintained that the statute was constitutional because the aggregate effects of gender motivated violence substantially affected interstate commerce.³⁷

The Supreme Court held that Sec. 13981 was unconstitutional because Congress lacked the authority under the Commerce Clause to regulate violent, intrastate criminal conduct.³⁸ The Court agreed with the Fourth Circuit's rationale that the case was controlled by the Court's decision in Lopez.³⁹ Most significant in Morrison, however, was the Court's rejection of the long standing practice of aggregating the effects of noneconomic activity as a basis for congressional Commerce Clause authority.⁴⁰

The Supreme Court's decisions in Lopez and Morrison marked the end of the most recent cycle of expansive interpretation of the Commerce Clause and signaled the beginning of a period of stricter requirements for federal statutes enacted pursuant to the Clause. As a result of these two cases, many of the federal criminal statutes passed in the twentieth century, including Sec. 844(i), are now being challenged on constitutional grounds.⁴¹ More interestingly, the decisions in Lopez and Morrison have affected jurisdictional challenges to Sec. 844(i) that are based on statutory construction, even though the constitutionality of the section has been upheld.⁴²

B. 18 U.S.C. Sec. 8440)

Section 844(i) provides in pertinent part:

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 less than 5 years and not more than 20 years . . . .⁴³

Section 844(i) was passed as part of Title XI of the Organized Crime Control Act of 1970.⁴⁴ Although initially only covering the destruction of buildings by explosives, it was amended in 1982 to include arson.⁴⁵

The legislative history of Sec. 844(i) reveals that Congress intended the section's jurisdictional reach to be as broad as possible under the Commerce Clause.⁴⁶ Further, Congress altered the wording of Sec. 844(i), as proposed, so that the destruction of churches, synagogues, and other religious buildings would be punishable under the section.⁴⁷ The legislative history also reveals that Congress recognized the potential Commerce Clause problems that might arise from applying the section to such buildings, and the subcommittee relied, at least in part, on the fact that the Supreme Court had not challenged Congress's Commerce Clause authority since the 1930s when it crafted the expansive jurisdictional element of Sec. 844(i).⁴⁸

C. Commerce Clause Scrutiny and the Statutory Construction of Sec.844(1)

Initially, courts interpreted the jurisdictional reach of Sec. 844(i) expansively. In 1979 the Fourth Circuit heard a jurisdictional challenge to Sec. 844(i) in United States v. Grossman,⁴⁹ a case of first impression for that circuit.⁵⁰ Grossman was charged...