Appeal from the United States District Court for the Eastern District of California. D.C. No. CR-92-00571-EJG. Edward J. Garcia, District Judge, Presiding. Original Opinion Previously Reported at:,.
Before: J. Clifford Wallace, Chief Judge, Procter Hug, Jr. and Jerome Farris, Circuit Judges. Opinion by Chief Judge Wallace; Concurrence by Judge Farris.
Order AMENDING OPINION AND DENYING REHEARING
Katherine Pappadopoulos appeals from her convictions for conspiracy, 18 U.S.C. § 371, arson, 18 U.S.C. § 844(i), arson to commit another felony, 18 U.S.C. § 844(h)(1), mail fraud, 18 U.S.C. § 1341, and interstate transportation of property taken by fraud, 18 U.S.C. § 2314. The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand.
Pappadopoulos and her husband, who were experiencing severe financial trouble, conspired with Orfanos to burn the Pappadopouloses' 10,000 square foot home in Sacramento, California. In August 1992, the Pappadopouloses went to Greece, where they received numerous telephone calls from Orfanos. Two of these calls, taped by Orfanos, pertained to the method Orfanos would use to burn the home. On September 1, Orfanos entered the home, poured lacquer thinner throughout, and set fire to the residence. After the fire, Orfanos called a friend, Marshall, and explained that the house was on fire and that his car was still in the garage of the home and that he needed a ride. Orfanos called the Pappadopouloses at least three times that day, borrowed $2,500 from Marshall for a plane ticket to Greece, and, on the way to the airport, gave Marshall a copy of the two recorded conversations, telling her that it was his "insurance" to show the fire was not his idea.
After the fire, the Pappadopouloses returned from Greece, retained the services of a public insurance adjuster and submitted a claim to their insurer for over $4 million, including living expenses of over $20,000 per month. The Pappadopouloses both were subsequently indicted by the grand jury. Orfanos fled the country and remains a fugitive. The Pappadopouloses were tried together and convicted, but Mr. Pappadopoulos fled the country before sentencing.
We first discuss Pappadopoulos's conviction under 18 U.S.C. § 844(i), which provides:
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 more than ten years or fined not more than $10,000, or both . . . .
(Emphasis added.) Thus, an essential element of the crime of arson under section 844(i) is that the property was "used in" or "used in any activity affecting" interstate or foreign commerce. See United States v. Karlic, 997 F.2d 564, 571 (9th Cir. 1993) (Karlic). Like other elements of the offense, this "jurisdictional element" must be proved to the jury beyond a reasonable doubt. See United States v. Nukida, 8 F.3d 665, 669-73 (9th Cir. 1993) ( Nukida) (jurisdictional elements of offenses must be determined by the finder of fact at trial).
To establish this jurisdictional element, the government relied exclusively on one theory: that the Pappadopoulos residence was "used in" or "used in an activity affecting" interstate commerce because it received natural gas from out-of-state sources. The government introduced evidence sufficient to permit the jury to find that the Pappadopoulos residence received natural gas from Pacific Gas & Electric which was derived, at least in part, from out-of-state sources.
The district court correctly instructed the jury that the government had to prove that the house was "used in interstate commerce or in an activity affecting interstate commerce." The district court further instructed the jury: "'Interstate commerce' means commerce or business between any place in one state and another place outside the state. It also means commerce between places within the same state, but passing through any place outside that state." Finally, the court stated: "A building, including a private residence, is used in interstate commerce, or in an activity affecting interstate commerce, if it is supplied with natural gas which has moved in interstate commerce."
Pappadopoulos contended at trial that the district court lacked subject matter jurisdiction over the arson-related counts on the theory that the residence's receipt of natural gas from out-of-state sources was insufficient as a matter of law to establish the requisite nexus to interstate commerce. She presented this argument by means of a pretrial Rule 12(b) motion to dismiss, which was deferred and then renewed at the close of the government's case-in-chief. Pappadopoulos also objected to the jury instructions on the same theory - that they effectively eliminated an essential (and jurisdictional) element of the offense. Pappadopoulos presents the same arguments on appeal.
To answer these questions, we turn to the Supreme Court's recent watershed opinion in United States v. Lopez, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995) (Lopez). At first blush, the question whether a private residence is sufficiently connected to interstate commerce within the meaning of section 844(i) by virtue only of its receipt of natural gas from a company that derives that gas from out-of-state sources might appear to be solely a matter of statutory construction - whether such a house is "used in" or "used in any activity affecting" interstate commerce. See United States v. Mennuti, 639 F.2d 107 (2d Cir. 1981) (concluding that Congress did not intend in section 844(i) to federalize the arson of a private residence but assuming that Congress had the power to do so).
However, the Supreme Court has held that the statutory language in section 844(i) "expresses an intent by Congress to exercise its full power under the Commerce Clause." Russell v. United States, 471 U.S. 858, 859, 85 L. Ed. 2d 829, 105 S. Ct. 2455 (1985) (Russell). Therefore, the question we must decide is whether Congress could constitutionally prohibit the destruction of the Pappadopoulos residence under the power vested in it by the Commerce Clause "to regulate commerce . . . among the several States." U.S. Const., Art. I, § 8, cl. 3. See United States v. Stillwell, 900 F.2d 1104, 1107-10 (7th Cir.) (concluding that Russell 's interpretation of the pertinent legislative history precludes reliance on Mennuti 's holding that, as a matter of statutory construction, section 844(i) does not cover any private residence not used for business purposes), cert. denied, 498 U.S. 838, 112 L. Ed. 2d 81, 111 S. Ct. 111 (1990). Russell left open the question whether all ...