Opposition Brief — Moore v. United States

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In the Supreme Court of the United States

OCTOBER TERM, 1994

LARRY EUGENE MOORE, ET AL., PETITIONERS

e.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. Days, III

Solicitor General

JOANN HARRIS

Assistant Attorney General

DAVID S. KRIS

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the private residence involved in this case

was used in an activity affecting interstate commerce

within the meaning of the federal arson statute,

18 U.S.C. 844(i).

2. Whether the district court erred in admitting

evidence of a witness’s prior consistent statement for

the limited purpose of rehabilitating that witness’s

credibility after it had been impeached on cross-

examination.

(1)

TABLE OF CONTENTS

Page

I ica 1

SARS ERIS colt fs 2 a ea 1

EINSTEIN REDRESS sev ER SCHED? SORE Ee 2

RRS iS SS ai OR A ay Re 4

ME ESRI GX Ae ie en ae ny Se ae 10

TABLE OF AUTHORITIES

Cases:

Russell v. United States, 471 U.S. 858 (1985) ......cccccccces 5, 6

United States v. Brennan, 798 F.2d 581 (2d Cir. 1986) .... 8, 9

United States v. Casoni, 950 F.2d 893 (3d Cir. 1991) ....... 8

United States v. DeMarrias, 876 F 2d 674 (8th Cir.

RR SESS REY SARE SPER STSCI SA Raa Reon ae ~

United States v. Harris, 761 F.2d 394 (7th Cir. 1985) ..... 8

United States v. Mennuti, 639 F.2d 107 (2d Cir. 1981) .... 6

United States v. Miller, 874 F.2d 1255 (9th Cir. 1989) ..... 9

United States v. Parodi, 703 F.2d 768 (4th Cir. 1983) ..... 8

United States v. Ramey, 24 F.3d 602 (4th Cir. 1994),

petition for cert. pending, No. 94-5755 .........ccccccceeeeeees 4,5, 7

United States v. Ryan:

9 F.3d 660 (1993), aff’d in part, reinstated in part,

No. 92-1357 (8th Cir. Oct. 31, 1994) (en bance) ........... 7

No. 92-1357 (8th Cir. Oct. 31, 1994) (en bane) .....0........ 7

United States v. Stillwell, 900 F.2d 1104 (7th Cir.), cert.

I, Ge TFT, Ge CRI vecscccncececcvcassccneceseecacesnsceneeccs 5, 6, 7

Youakim v. Miller, 425 U.S. 231 (1976) ....cccccccccccccccscccsoces 9

Constitution, statutes and rules:

U.S. Const. Art. I, § 8, Cl. 3 (Commerce Clause) ............. 5, 7

4 SE Ce AEA ae 2

ESERIES RLSM E ON Ree aa Ca a ee 2

ESSE SES SS a eI Re ee eam 2

I 2, 3, 4, 5, 6, 7

IV

Statutes and rules—Continued:

Be Rl i cibintindiitbineiieeeiips seats becmie ee eee

Fed. R. Evid.:

SEER ARIPER TY Me ne ev er rea RNS Np Ate Uy Bea

In the Supreme Court of the Gnited States

OCTOBER TERM, 1994

No. 94-642

LARRY EUGENE MOORE, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-11) is

unpublished, but the judgment is noted at 25 F.3d 1042

(Table).

JURISDICTION

The judgment of the court of appeals was entered on

June 10, 1994. A petition for rehearing was denied on

July 8, 1994. Pet. App. 12-13. The petition for a writ of

certiorari was filed on October 6, 1994. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

After a jury trial in the United States District Court

for the District of South Carolina, petitioners were

convicted on one count of conspiring to violate the

federal arson statute, to commit mail fraud, and to use

fire to commit a felony, in violation of 18 U.S.C. 371; five

counts of mail fraud and of aiding and abetting that

crime, in violation of 18 U.S.C. 1341 and 2; two counts of

violating the federal arson statute and of aiding and

abetting that crime, in violation of 18 U.S.C. 844(i) and 2;

and two counts of using fire to commit a felony and of

aiding and abetting that crime, in violation of 18 U.S.C.

844(h)(1) and 2. Petitioners Moore and McLamb were

each convicted on one additional count of violating the

federal arson statute and of aiding and abetting that

crime, in violation of 18 U.S.C. 844(i) and 2, and one

additional count of using fire to commit a felony and of

aiding and abetting that crime, in violation of 18 U.S.C.

844(h)(1) and 2. Petitioner Moore was sentenced to 48

months’ imprisonment, to be followed by three years of

supervised release, and ordered to pay $1,675,420.71 in

restitution. Petitioner McLamb was sentenced to 30

months’ imprisonment, to be followed by three years of

supervised release, and ordered to pay $1,675,420.71 in

restitution. Petitioner Gregory was sentenced to 84

months’ imprisonment, to be followed by three years of

supervised release. Pet. App. 14-37. The court of appeals

affirmed. Jd. at 1-11.

1. Daniel A. Vogel wanted to burn down his house in

Myrtle Beach, South Carolina, so that he could collect

the proceeds of his fire insurance. Vogel contacted

petitioner Moore and asked him to find someone to burn

down the house. Moore was in business with petitioner

McLamb and Charles Terry Norman, and the three of

3

them agreed to burn down the house for $100 “00. Gov’t

C.A. Br. 4.

Moore, McLamb, and Norman attempted to burn down

the house, but they were unsuccessful. Norman then

spoke to petitioner Gregory, and Gregory agreed to help

burn down Vogel’s house. Norman and Gregory then

attempted to burn down the house, but they too were

unsuccessful. Finally, Gregory succeeded in burning

Vogel’s house to the ground. Gov’t C.A. Br. 5-6.

2. At trial, petitioners stipulated that at the time of

the arson, Vogel’s house was connected to interstate gas

and telephone lines, the house had been renovated with

materials obtained through interstate commerce, the

house was subject to a mortgage held by a bank outside

South Carolina, the house was being marketed for sale

outside South Carolina, the house was under the control

of a Bankruptcy Court outside the State, and the house

was insured by an out-of-state insurance company. Pet.

App. 9. The district court determined that those facts

established that Vogel’s residence was used in an ac-

tivity affecting interstate commerce within the meaning

of the federal arson statute, 18 U.S.C. 844(i).

Norman testified for the government pursuant to a

plea agreement. He recounted the terms of the

conspiracy and the attempts to burn down Vogel’s house.

On cross-examination, petitioners triéd to suggest that

Norman was lying about the arson in return for having

received a lenient sentence under his plea agreement. In

response, the government called two agents of the

Bureau of Alcohol, Tobacco, and Firearms (ATF) who

testified that Norman had previously told them that

petitioners had been involved in the arson. When

petitioners objected to the testimony, the government

explained that the evidence was being offered to

4

rehabilitate Norman’s credibility. The district court

admitted the evidence. Gov’t C.A. Br. 16-17.

3. The court of appeals affirmed. Pet. App. 1-11. After

reciting the stipulated facts bearing on the connection of

the Vogel residence to interstate commerce, the court

noted that it had held in United States v. Ramey, 24 F.3d

602 (4th Cir. 1994), petition for cert. pending, No. 94-5755,

that the “connection of a house to an interstate power

grid constitutes a sufficient use in an activity that

affects commerce to satisfy the arson statute.” Pet. App.

A9. “The government has therefore shown,” the court

concluded, “that the Vogel residence was used in an

activity that affects interstate commerce.” Ibid.

The court also rejected Gregory’s argument that

Norman’s prior consistent statement to the ATF agents

was not admissible because it was made after Norman’s

alleged motive to fabricate evidence against petitioners

arose. Pet. App. A4. The court noted that the prior

statement “was made to law enforcement officers after

Norman had concluded an arrangement with the govern-

ment.” Jbid. It found, however, that “the statement was

not offered for the truth of the matter asserted, but to

rehabilitate Norman’s credibility after it had been

impeached.” Jd. at A4-A5. Accordingly, the court con-

cluded that there was “no abuse of the district judge’s

discretion in admitting Norman’s prior consistent

statement.” Jd. at A5.

ARGUMENT

1. Petitioners contend (Pet. 7-17) that Vogel’s

residence was not used in an activity affecting interstate

commerce within the meaning of the federal arson

statute, 18 U.S.C. 844(i). That contention is without

merit.

5

In Russell v. United States, 471 U.S. 858 (1985), this

Court held that the reference in Section 844(i) 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.” Jd. at 859. Under that standard, the Court

concluded that Section 844(i) reaches all business

property. Jd. at 862. The Court did not suggest,

however, that Section 844(i) is limited to business

property. To the contrary, the Court indicated that

Section 844(i) applies to private residences as well, so

long as those residences are within the reach of

Congress’s power to regulate interstate commerce.

Ibid.

Applying that analysis, the Fourth Circuit held in

United States v. Ramey, supra, that a residence that

receives electricity from an interstate power grid falls

within the scope of Section 844(i). 24 F.3d at 607. The

court explained that even though an individual residence

may consume only a small amount of energy, “its

consumption, combined with that of all similarly situated

buildings, has a most definite effect on interstate

commerce.” Ibid. That aggregate effect, the court held,

is sufficient to bring the entire class of residences

within the reach of Congress’s commerce power. Ibid.

In United States v. Stillwell, 900 F.2d 1104, cert.

denied, 498 U.S. 838 (1990), the Seventh Circuit reached

the same conclusion. Relying on Russell, the court held

that “Congress intended [Section 844(i)] to cover all

properties it has the power to reach under the commerce

clause.” Jd. at 1110. The court then held that Congress

has power under the Commerce Clause to reach private

residences that receive interstate natural gas. Jd. at

1111. The court explained that “Congress could ration-

ally believe that, in the aggregate, arson of private

REE SRE ren: Same O ee

6

residences supplied with interstate natural gas has more

than a de minimis effect on interstate commerce.” [bid.

Since Vogel’s residence was connected to interstate

gas and telephone lines, this case fits squarely within

the rationale of Ramey and Stillwell. Unlike those

cases, however, application of Section 844(i) does not

depend on that connection to interstate commerce alone.

As the court of appeals in this case noted, there were

several additional factors showing that Vogel’s resi-

dence was used in an activity affecting interstate

commerce: the house had been renovated with materials

that had moved in interstate commerce, an out-of-state

bank held a mortgage on the house, the house was being

marketed for sale in several States, the house was being

held under the authority of an out-of-state Bankruptcy

Court, and the house was insured by an out-of-state

insurance company. Pet. App. A9.

The fact that the house was being marketed for sale in

several States is particularly significant. In Russell,

this Court held that “[t]he rental of real estate is

unquestionably * * * an activity” that affects

interstate commerce within the meaning of Section

844(i). 471 U.S. at 862. The sale of real estate is simi-

larly an activity that unquestionably affects interstate

commerce. Indeed, in one respect, this case presents a

stronger nexus with interstate commerce than the

building in Russell because the Vogel house was being

marketed on the interstate rea! estate market, while the

apartment building in Russell was being rented in a locai

market. /bid.

Petitioners assert (Pet. 13) that the court’s decision in

this ease conflicts with United States v. Mennuti, 639

F.2d 107 (2d Cir. 1981). That asserted conflict does not

warrant this Court’s review. In Mennuti, the Second

Circuit held that Section 844(i) applies only to

7

residences used for commercial purposes. Mennuti,

however, was decided before this Court's decision in

Russell made clear that Section 844(i) also applies to

private residences, so long as Congress has the power to

reach them under the Commerce Clause. As the court of

appeals in Ramey explained, “Russell’s holding that the

full commerce power is exercised in § 844(i) saps

Mennuti of any vigor.” 24 F.3d at 607. See also

Stillwell, 900 F.2d at 1109 (“We believe the Supreme

Court squarely rejected the rationale of Mennuti in

Russell.”). The Second Circuit has not revisited the

scope of Section 844(i) since Russell, and there is no

reason to believe that it would adhere to Mennuti today.

Petitioners also seek to rely on the Eighth Circuit’s

decision in United States v. Ryan, 9 F.3d 660 (1993), but

as petitioners note (Pet. 11-12), that decision has been

vacated. The Eighth Circuit has now issued its en bane

decision in that case. United States v. Ryan, No. 92-1357

(Oct. 31, 1994). In that decision, the Eighth Circuit held

that a district court did not commit plain error in in-

structing the jury that a temporarily closed commercial

rental property that receives natural gas from outside

the State falls within the scope of Section 844(i). Slip op.

11-12. Because the court reviewed the district court’s

instruction under the plain error standard, the court had

no occasion to decide the precise scope of Section 844(i),

even in the context of commercial property. Jd. at 12.

And because Ryan involved commercial property, it did

not address the circumstances in which a private resi-

dence would be covered by Section 844(i). Id. at 8, 12.

Ryan is therefore not instructive here.

2. Petitioners contend (Pet. 17-18) that the district

court erred in admitting Norman’s prior consistent

statement implicating them in the arson because the

statement was made after Norman’s alleged motive to lie

8

arose. The question whether prior consistent state-

ments offered as substantive evidence to rebut a charge

of improper motive may be admitted pursuant to Fed. R.

Evid. 801(d)(1)(B) without a showing that the statements

were made before the motive to fabricate arose is

currently before the Court in Tome v. United States,

No. 93-6892 (argued Oct. 5, 1994).

That question is not presented here, however, because

Norman’s prior consistent statement was offered to

rehabilitate his credibility, not as substantive evidence.

See Pet. App. 4-5. As petitioners concede (Pet. 18), every

circuit that has adopted the pre-motive rule has also held

that it does not apply where (as here) the prior con-

sistent statement is admitted to rehabilitate a witness’s

credibility, rather than as substantive evidence. See -

United States v. Casoni, 950 F.2d 893, 905-906 (3d Cir.

1991); United States v. DeMarrias, 876 F.2d 674, 678 (8th

Cir. 1989); United States v. Brennan, 798 F.2d 581, 587-

588 (2d Cir. 1986); United States v. Harris, 761 F.2d 394,

399-400 (7th Cir. 1985); United States v. Parodi, 703 F.2d

768, 784-785 (4th Cir. 1983). Those decisions reason that

a prior consistent statement offered for rehabilitation

does not implicate the hearsay rule because it is not

being offered for the truth of the matter asserted in the

statement. See Fed. R. Evid. 801(c). Thus, the

statement need not be admitted under Rule 801(d)(1)(B).

Instead, such a statement is admissible if it is relevant to

* As we argued in our brief in Tome, Rule 801(d)(1)(B) does not

contain a “pre-motive” requirement. The language of the Rule

says nothing about the timing of the statement as a prerequisite to

its admissibility, and a pre-motive rule would be inconsistent with

the basic philosophy underlying the Federal Rules of Evidence,

which is to permit the trier of fact to consider all relevant

evidence. We are providing petitioners with a copy of our brief in

Tome.

9

rehabilitate the witness’s credibility. Fed. R. Evid. 402.

See, ¢.g., Brennan, 798 F.2d at 588 (“[A] prior consistent

statement may be used for rehabilitation when the

statement has a probative force bearing on credibility

beyond merely showing repetition.”).

Petitioners argue (Pet. 18-21) that those decisions

conflict with United States v. Miller, 874 F.2d 1255, 1272-

1273 (9th Cir. 1989), which rejected a distinction between

statements offered as substantive evidence and state-

ments offered for purposes of rehabilitation. But Miller

also rejected a pre-motive rule. Jd. at 1273-1274. Under

Miller, the timing of the statement is “simply one of

several factors to be considered in determining rele-

vancy.” Id. at 1274. Miller therefore provides no support

for petitioners’ claim that Norman’s prior statement

should have been excluded because it was made after

Norman’s motive to lie arose.

Petitioners argue (Pet. 21-23) that they should prevail

even under the more flexible relevancy standard adopted

in Miller. Petitioners, however, did not make that

argument in the court of appeals. Petitioners’ sole

contention was that Norman’s prior statement was

inadmissible because it was made after the motive to

fabricate arose. Appellants’ C.A. Br. 14-16. The question

whether the statement is admissible under the more

flexible Miller standard is therefore not properly before

this Court. Youakim v. Miller, 425 U.S. 231, 234 (1976)

(per curiam). Moreover, since the resolution of that

question is fact-bound and would affect only the parties

to this case, it does not warrant this Court’s review in

any event.

Nor is there any need to hold this petition pending

resolution of the issue presented in Tome. Even if this

Court were to decide in Tome that Rule 801(d)(1)(B)

contains a pre-motive requirement, it would not affect

10

the outcome in this case. Consistent with the courts of

appeals that have found a pre-motive requirement in the

Rule, the court below held that a prior consistent

statement, if relevant, is admissible apart from the Rule

to rehabilitate a witness whose credibility has been

impeached. As we noted in our brief in Tome (Br. 45

n.24), the Court’s resolution of the pre-motive issue

should not affect that principle.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREW S. DAYS, III

Solicitor General

JOANN HARRIS

Assistant Attorney General

DAVID S. KRIS

Attorney

JANUARY 1995