Petition for Writ of Certiorari — Ryan v. United States

. Supreme Osurt, U.S.

fh *!' EL £EDp

941291 JAN 30 1995

No. 94-

QOFFICk UF [HE CLERK

In the Supreme Court of the Anited States

OCTOBER TERM, 1994

DALE LYNN RYAN, a

Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

RICHARD J. LAZARUS ANDREW L. FREY

Washington University LAWRENCE S. ROBBINS

School of Law Counsel of Record

St. Louis, MO 63130 JAMES G. DUNCAN

(314) 935-6495 Mayer, Brown & Platt

2000 Pennsylvania Ave., NW

Washington, D.C. 20006

F. THOMAS SCHORNHORST (202) 463-2000

Indiana University

School of Law

Bloomington, IN 47405

(812) 855-9198

QUESTION PRESENTED

Whether a permanently closed building at which, at the time

of the alleged arson (and for weeks before), no business activity

was being conducted, and which was not on the market for sale or

rental, was nevertheless “used * * * in any activity affecting

interstate * * * commerce,” within the meaning of 18 U.S.C.

844(i), because it was “potentially marketable,” received natural

gas from out of state, and was owned by an out-of-state resident

and leased by him to an out-of-state shell corporation.

(f)

ii

TABLE OF CONTENTS

Page

SABLE OF AUTHORITIES ................. ae

gs ec nu ove ak ca eecdwnk, l

eer es |

STATUTORY PROVISION INVOLVED ............ 2

RRR Ea te a 2

REASONS FOR GRANTING THE PETITION ........ 6

A. The Court Of Appeals’ Reliance On Receipt

Of Natural Gas Is In Conflict With Decisions

Of The Second And Tenth Circuits .......... 7

B. The Court Of Appeals’ Decision Cannot

Be Reconciled With The Text Of Section 844(i) .. 12

C. The Question Presented Is Both Recurring

I a ee eg eg ey fn 14

ge i has ck vn ee kek 17

iil

TABLE OF AUTHORITIES

Cases rage

McNally v. United States, 483 U.S. 350 (1987) ........ 15

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

Tanner v. United States, 483 U.S. 107 (1987) ......... 15

United States v. Bass, 404 U.S. 336 (1971) ......... 15, 16

United States v. Doby, 872 F.2d 779

CN I i ei gs Say ol a eae Bay 14

United States v. Hansen, 755 F.2d 629

(8th Cir.), cert. denied, 474 U.S.

I i eae a ee ws i ek en Ue 5

United States v. Kouwninski, 487 U.S. 931 (1988) ....... 15

United States v. Lake, 985 F.2d 265

I MI ee GT a tre ae aa 15

United States v. Mayberry, 896 F.2d 1117

Re ge a ee ere 15

United States v. Maze, 414 U.S. 395 (1974) .......... 15

United States v. Medeiros, 897 F.2d 13

STUN I a Sri ngs ae hea eagle ea 15

United States v. Mennuti, 639 F.2d 107

RUE MI at a i eae er 7-12

United States v. Menzer, 29 F.3d 1223

(7th Cir.), cert. denied, 115 S. Ct.

ST os al tr ee one a a a a ue SS 15

United States v. Miller, 24 F.3d 1357

I I Se ey ue oes 15

United States v. Monholland, 607 F.2d

Bae CoG, PPE. <6 sk Wk he ee ee wee 8, 10, 11

United States v. Montgomery, 815 F. Supp. 7

es SEE So Sia ce Gaeta a oa lk 11, 16

iV

TABLE OF AUTHORITIES - Continued

Pages

United States v. Parsons, 993 F.2d 38

(4th Cir.), cert. denied, 114 S. Ct.

pS Per area er com et Uecewaly aL) Sr pol | 14

United States v. Patterson, 792 F.2d 531

(Sth Cir.), cert. denied, 479 U.S. 865

(ROG cis «erence e eer es ea eee 10, 12

United States v. Ramey, 24 F.3d 602

ENE <4 scene ieee ee eee 9, 11, 13, 15

United States v. Shively, 927 F.2d 804

(Sth Cir.), cert. denied, 501 U.S.

Ee ee ree eee 10, 15

United States v. Shockley, 741 F.2d 1306

Fae as SE 6a Pk Sa eee ae ee 14

United States v. Stillwell, 900 F.2d

1104 (7th Cir.), cert. denied, 498

ak Bs a eS ee ee 8-1]

United States v. Turner, 995 F.2d 1357

(6th Cir.), cert. denied, 114 S. Ct.

PN eS eS RRC he Oe a 14, 15

Statutes

Pe eee 6a ae passim

PE sod oe a ke ee 15

SP A AEE i ks Re ee ae ke ee 15

Pe Oe TE. 3S 9 oe on eek ek eee iS

ee WE 64 oe eee Lee 15

oe Ws I i 6 os 6 he l

In the Supreme Court of the United States

OCTOBER TERM, 1994

DALE LYNN RYAN, Petitioner.

v.

UNITED STATES OF AMERICA, Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

Dale Lynn Ryan respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals for

the Eighth Circuit in this case.

OPINIONS BELOW

The opinion of the en banc court of appeals (App., infra, 1a-

17a) will be reported at 41 F.3d 361. The opinion of the panel of

the court of appeals (App., infra, 19a-5Qa) is reported at 9 F.3d

660.

JURISDICTION

The en banc court of appeals entered its judgment on October

31, 1994. App., infra, la. A petition for a writ of certiorari is

due on January 30, 1995. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

2

STATUTORY PROVISION INVOLVED

Section 844(i) of Title 18 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 more than ten years or fined not more

than $10,000, or both; * * * and if death results to any

person, * * * shall also be subject to imprisonment for

any term of years, or to the death penalty or to life

imprisonment * * *.

STATEMENT

Petitioner Dale Lynn Ryan was indicted on one count of

destroying by means of fire a building “used in * * * any activity

affecting interstate * * * commerce,” in violation of 18 U.S.C.

844(i). The evidence at trial established that at the time of the fire,

and for nearly a month beforehand, the building — a previously

functioning fitness center — had been permanently closed; was

performing no business functions; and was not on the market for

sale, rental, or other disposition. In light of those evidentiary

constraints, the government sought some other legal basis for

claiming that the fitness center was “used” in an “activity”

affecting interstate commerce at the time of the fire. At the

government’s request, the trial court instructed the jury that it could

find that the building was “used in an activity affecting interstate

commerce” if it found that the building either (i) was owned by an

out-of-state resident and leased by him to an _ out-of-state

corporation, or (ii) was supplied by natural gas from outside the

state. Petitioner was convicted and sentenced to a term of

imprisonment for 328 months. The court of appeals — recognizing

the substantial importance (and dramatic consequences) of the

instructions — reheard the case en banc, and, dividing 6-5,

affirmed the conviction.

1. During the evening of January 1, 1990, a fire destroyed

a fitness center in West Burlington, Iowa that had permanently

closed because of low membership. App., infra, 47a. Petitioner

3

Dale Ryan had managed the fitness center, which his father (a

resident of Kansas) owned. /d. at 20a. Tragically, two volunteer

firemen died while attempting to extinguish the fire. Their deaths

apparently occurred from oxygen deprivation after they left their

hose and became lost in the building. III Tr. 30-33, 97-106, 189-

192; IV Tr. 126. Although the building was permanently closed,

it still received natural gas from an out-of-state source. III Tr.

107.

State and local law enforcement officials immediately

investigated the cause of the fire. The fire marshal took 26 samples

from the burn patterns to test for the presence of accelerants.

App., infra, 22a. None of the samples, however, indicated that

accelerants had been used. Jbid. Presumably because of the

absence of sufficient evidence linking petitioner to the fire, state

and local authorities declined to bring charges.

2. Eighteen months after the fire, a federal grand jury

returned a one-count indictment charging petitioner with violating

the federal anti-arson law, 18 U.S.C. 844(i). Section 844(i)

prohibits the destruction by fire of any building “used * * * in any

activity affecting interstate * * * commerce.”

The evidence at trial showed that the fitness center had been

closed on December 6, and from that date through the date of the

fire conducted no further business. VI Tr. 147, 172. What is

more, the building was never put on the market for sale or rental.

Although one realtor testified that petitioner had taken her on a tour

of the facility some two weeks before the fire, she explained that

she never listed the property. Id. at 62-63, 65. A second realtor

testified that she had placed repeated calls to petitioner to obtain a

listing for the property, but that petitioner had failed to return the

calls. VII Tr. 6-9, 12-15. Indeed, the government emphasized that

petitioner’s faiiure to market the property was circumstantial proof

that he intended to burn it. As the prosecutor put it in summation,

petitioner did not attempt to sell the building “because he knows

what he’s going to do with that club, and it’s not sell it.” XV Tr.

32.

In light of that record, the government sought, and the trial

court gave, an instruction that told the jury that it could find that

the building was “used in an activity affecting interstate commerce”

4

if it found beyond a reasonable doubt either that “the [fitness

center] was owned by Ronald D. Ryan, a resident of Kansas, and

leased by him to Ryan Air Services, Inc., a Kansas Corporation,”

or that “the [fitness center] was supplied with natural gas used to

heat the building, and such natural gas was supplied from outside

of the state of Iowa.” App., infra, 27a. The government also

relied on those theories in its summation as the sole basis for

conviction on the commerce element of the offense. XV Tr. 10-11.

Inexplicably, petitioner’s trial counsel did not object to those

instructions. App., infra, 3a.

3. A divided panel of the court of appeals affirmed. App.,

infra, 19a-50a. The majority upheld both of the district court’s

alternative definitions of “used in an activity affecting interstate

commerce.” It opined that the out-of-state ownership of the fitness

center was sufficient to meet the statutory requirement, and that

“the receipt and use of natural gas from across state borders is an

activity directly affecting interstate commerce.” Jd. at 28a.

Chief Judge Arnold concurred in part and dissented in part.

App., infra, 43a-48a. He noted that Section 844(i) “only applies

to property that is ‘used’ in an ‘activity’ that affects interstate

commerce” (id. at 46a); accordingly, the “proper inquiry is into the

function of the building itself, and then [into] a determination of

whether that function affects interstate comunerce” (id. at 47a).

Because the fitness center was “closed permanently” (ibid.), Chief

Judge Arnold concluded that “mere receipt of natural gas or out-of-

state ownership, without any additional showing as to the use of the

structure itself,” could not satisfy “the activity requirement” of

Section 844(i). Jd. at 46a. The Chief Judge also noted that the

panel’s expansive interpretation of Section 844(i) conflicted with

decisions of the Second and Tenth Circuits and “disturbs the

balance between the state and federal governments” by federalizing

virtually all arsons — a traditional common-law state crime. /d. at

47a-48a & n.3.

4. On January 5, 1994, the Eighth Circuit vacated the panel

opinion and granted rehearing en banc. App., infra, 18a. Tue

court thereafter affirmed by a vote of 6-5. Jd. at la-17a.

The majority first held that the fitness center was “used in an

activity affecting interstate commerce” and was thus covered by

5

Section $44(i). It explained that “[t]here is manifold evidence that

the Fitness Center was about to be placed on the market for sale.”

App., infra, 7a. In particular, it cited evidence of efforts to clean

the facility and remove personal property from the premises -- all

of which, in the court’s view, “indicate[d] the marketable nature of

the property and its potential for ready reentrance as a functioning

business in the commercial marketplace.” Jbid. Apart from the

“potential[ly]” “marketable nature of the property,” the court also

pointed to the “continued receipt of natural gas” at the fitness

center, together with the fact that the building was owned by

petitioner’s father, an out-of-state resident, and was leased by him

to an out-of-state shell corporation. Jbid.

Having concluded that the fitness center fit within the ambit of

Section 844(i), the majority next turned to whether the jury

instructions on the commerce element were plainly erroneous and

concluded they were not. App., infra, 8a-1la. With respect to the

trial court’s first definition, the majority acknowledged that the

Eigith Circuit had “never held out-of-state ownership sufficient on

its own terms to satisfy the elements of section 844(i).” Jd. at 10a.

The majority added, however, that “that status, coupled with the

lease arrangement, is not a plainly inaccurate showing of sufficient

ties to interstate commerce.” Jbid.'

The majority also declined to reverse on the “natural gas”

instruction. It acknowledged that, in the prior decision in United

States v. Hansen, 755 F.2d 629 (8th Cir.), cert. denied, 474 U.S.

834 (1985), the court had “indicated that reliance on the use of

electricity ‘would seem to stretch the notion of interstate commerce

beyond the limits of logic.”” App., infra, 10a. The majority

noted, however, that Hansen was decided before this Court’s

decision in Russell v. United States, 471 U.S. 858 (1985) — which,

in the majority’s view, approved a “sweeping jurisdictional scope”

for Section 844(i). App., infra, 10a. Accordingly, the majority

‘ In particular, the majority explained, “[t]he Ryan lease, although

transacted through a corporate shell, indicates the marketable nature of the

property.” The court added that petitioner’s father “manifested his

ownership status through the exercise of direct, final control over the

property in a necessarily interstate manner.” App., infra, 10a.

6

concluded, in view of the unsettled state of the law, petitioner had

“failed to meet his burden of proving clear error under our

applicable circuit case law regarding the application of section

844(i)” (id. at 11a).?

Chief Judge Arnold — joined by Judges McMillian, Gibson,

and Magill — concurred in the judgment in part and dissented in

part, finding both alternative instructions on interstate commerce

plainly erroneous. App., infra, 12a-17a.* The Chief Judge noted

that Section 844(i) requires the government to show that the

building was “used” in an “activity” affecting interstate commerce.

But merely “[bJeing owned,” he explained, is not an “activity.”

Id. at 15a. After all, the Chief Judge observed, “[e]very building

is owned by someone” (ibid.). In this case, he noted, the fitness

center was not being “used” in any “activity” at all at the time of

the fire; it was simply “cumbering the ground.” /d. at 16a.

Moreover, Chief Judge Arnold explained, the receipt of natural gas

likewise is not an “activity.” J/bid. The Chief Judge also

concluded that the instructional error affected substantial rights. In

particular, he noted, the error implicated “an essential element of

the crime.” Jbid. Moreover, he explained, “f{hjad the jury been

properly instructed in this case, it could have reached a different

conclusion.” Jbid.

REASONS FOR GRANTING THE PETITION

There are two distinct holdings in the court of appeals’

decision in this case. First, the court held, by a closely divided

vote, that the fitness center — despite being permanently closed,

out of business, and off the market — was nevertheless “used in an

activity affecting interstate commerce” at the time of the fire.

Second, having decided that the evidence strongly showed that the

? jp all other respects, the court reinstated the panel’s opinion. App.,

infra, la, 12a. Judge Morris Amoid concurred in the judgment, stating

that, in his view, the instructions on the commerce element did not

constitute plain error. /d. at 12a-13a.

> Judge Loken also dissented in part. In his view, the natural gas

instruction was erroneous and affected petitioner’s substantial rights.

App., infra, 17a.

7

building was within the ambit of Section 844(i), as it construed the

Statute — and thus that valid jury instructions on the commerce

element could have been given — the court held that the trial

court’s actual instructions on the commerce element were not

plainly erroneous.

In short, the court of appeals’ plain error analysis hinged

critically on the logically prior holding that the fitness center fit

within the ambit of Section 844(i). That is, had the court

concluded — as the dissenters did — that the evidence of the

interstate use element was weak or nonexistent, it likely would have

reached a different result. Only after satisfying itself that there was

a sufficient basis for Section 844(i) coverage did the court conclude

that the actual instructions, even if containing erroneous elements.

were not plainly erroneous. But that threshold decision was

fundamentally wrong: the Ryan Fitness Center was simply not

“used in an activity affecting interstate commerce”: the court of

appeals’ contrary conclusion misconstrues the plain language of the

Statute, is in conflict with decisions in two other Circuits, and

presents a recurring and important question of federal statutory law.

Further review is warranted.

A. The Court Of Appeals’ Reliance On Receipt Of

Natural Gas Is In Conflict With Decisions Of The

Second And Tenth Circuits

The court of appeals rested its conclusion that the building

containing the former fitness center came within the ambit of

Section 844(i) in part on the ground that it received natural gas

from out of state at the time of the fire. Although that

extraordinarily broad view of the statute has been approved by the

Seventh and Fourth Circuits, it has been explicitly disapproved by

the Second Circuit, essentially rejected by the Tenth Circuit, and

implicitly rejected by this Court in Russell v. United States, 471

U.S. 858 (1985). This case provides an appropriate vehicle for

resolving that conflict and for rejecting the government’s long-held

(but erroneous) view that the receipt of interstate utilities constitutes

“use[] * * * in anf] activity affecting interstate * * * commerce”

under Section 844(i).

1. In United States v. Mennuti, 639 F.2d 107 (2d Cir.

1981), the Second Circuit upheld the dismissal of a Section 844(i)

8

indictment on the ground that the buildings at issue — two private

dwellings — were not “used” in an “activity” affecting interstate

commerce. Writing for the court, Judge Friendly noted that

Section 844(i) covered buildings that housed companies whose

business affected interstate commerce, and he emphasized that the

“property must itself have been used in commerce.” /d. at 110.

“The critical word here is ‘used.’” ifbid. Thus, the fact that the

private homes at issue contained materials that were produced out-

of-state was irrelevant for determining whether the home itself was

“used” in an “activity” affecting interstate commerce (ibid.):

a residence is not used in interstate or foreign commerce

simply because it was built in part with out-of-state

materials, its purchase was financed by a bank which

engages in or whose activities affect interstate commerce,

it was insured by a company engaged in such commerce,

[or] it received electric power and telephone service from

companies engaged in or affecting commerce * * *. It

would be altogether strained to say that such a dwelling,

although not used in commerce, is “used” in an activity

affecting commerce. (Emphasis added.)

The Tenth Circuit took the same view in United States v.

Monholland, 607 F.2d 1311 (10th Cir. 1979), reversing a Section

844(i) conviction for conspiracy to assassinate a judge by destroy-

ing his pickup truck with explosives. The court concluded that the

judge’s truck was not “used” in an activity affecting interstate

commerce, notwithstanding the fact that the vehicle traveled on

federal highways and transported a judge whose official activities

affected interstate commerce. /d. at 1315. Focusing on the

“activity” of the targeted “property,” the court reasoned that the

truck’s transportation function was independent of the judge’s

official functions; the two functions “[did] not blend into and

become a part of” each other. Jd. at 1316. Thus, the court held

that the interstate commerce element in Section 844(i), though

broad, “is not limitless,” and that use of the property “must bear

some real relationship to commerce.” Jd. at 1315.

2. By contrast, as the court below recognized, two other

courts of appeals have adopted a substantially broader interpretation

of the interstate commerce element of Section 844(i). In United

9

States v. Stillwell, the Seventh Circuit, relying principally on

legislative history, held that Section 844(i) applied to a private

residence that had “no connection to a commercial activity” but

“merely receive{d] natural gas from out of state.” 900 F.2d 1104,

1106, 1107 (7th Cir.), cert. denied, 498 U.S. 838 (1990). The

court found that the house had a “connection with interstate

commerce” because it received natural gas. Jd. at 1109. The court

held that connection to be more than de minimis because, “in the

aggregate,” the arson of private residences nationwide would have

an impact on the market for natural gas. Jd. at 1111. Unlike the

Second Circuit’s decision in Mennuti — which looked to the

function of the property at issue, and which explicitly rejected the

proposition that Section 844(i) could be satisfied by the receipt of

“electric power and telephone service” (639 F .2d at 110) — the

Seventh Circuit in Stillwell looked only for some “nexus” between

the property and interstate commerce and then multiplied that nexus

by the number of properties in the same “class” to determine

whether the impact on interstate commerce is sufficient.*

The Fourth Circuit adopted the same interpretation in United

States v. Ramey, holding that the burning of a private residence

deep in the woods of West Virginia affected interstate commerce

because the residence “receive[d] electricity * * * from an interstate

power grid.” 24 F.3d 602, 607 (1994). Like the home in

Stillwell, the residence itself was not used in any commercial

activity at all. As Judge Michael noted in dissent, the residence

was “‘used’ only as a dwelling where its occupants carry out the

general ‘activity’ of daily living.” Jd. at 610 (dissent).

Nevertheless, the court concluded that the interstate commerce

element was met (id. at 607):

Though the [residence] doubtless consumed but a pittance

of energy from the power company’s grid, its

consumption, combined with that of all similarly situated

buildings, has a most definite effect on interstate

commerce.

* This rationale might make some sense if the purpose of Section 844(i)

were to regulate the interstate distribution of natural gas, but it is an

unjustified stretch in the context of a statute that has no such purpose.

10

3. This Court’s decision in Russell provides significant

support for the narrower construction of Section 844(i) adopted by

the Second and Tenth Circuits and by the five dissenting judges in

the present case. In Russell, the United States advanced precisely

the same “natural gas” theory that the Stillwell court adopted and

that the court below invoked. See Brief for the United States,

Russell v. United States, No. 84-435, pp. 15-16. At oral

argument, judicial skepticism of that theory was expressed. See

Russell vy. United States, Oral Argument Tr. 23 (“[I]t would be

hard to imagine any building that would not fall under the coverage

of this section under the government’s test.”). Significantly, this

Court adopted a far narrower test that requires close examination

of the activity constituting the basic function of the building at

issue, and of the relationship of that activity to interstate commerce.

Thus, this Court emphasized that Section 844(i) “only applies to

property that is ‘used’ in an ‘activity’ that affects commerce.” 471

U.S. at 862 (emphasis added). That formulation, which locks to

the building’s “use” rather than to some nebulous “nexus” with the

outside world, accords closely with Judge Friendly’s opinion in

Mennuti and with the analysis urged by Chief Judge Arnold in

dissent in this case.°

Even so, the courts of appeals disagree about the meaning and

breadth of Russell. On the one hand, both Stillwell (900 F.2d at

* The Fifth Circuit has adopted something of a hybrid approach in its

interpretation of the scope of the interstate commerce element in Section

844(i). In United States v. Shively, the court suggested that the Mennuti

and Monholland decisions were “question[able]” “in the wake of Russell,”

but it expressly declined to go “so far” as the Seventh Circuit in Stillwell.

927 F.2d 804, 808 (Sth Cir.), cert. denied, 501 U.S. 1209 (1991). The

court did, however, require a showing that the properties themselves (a

house and car) were used in a commercial activity. Thus, the court

upheld the conviction because the house was used as a business office for

the defendant’s interstate trucking company, and the car was “a company

vehicle, leased in the name of [the defendant’s] company and not himself

personally.” Jbid.; see also United States v. Patterson, 792 F.2d 531,

533-534 (Sth Cir.) (the property must have “some relationship to an

activity of commercial nature”) (emphasis in original; internal quotation

marks omitted), cert. denied, 479 U.S. 865 (1986).

1]

1109) and Ramey (24 F.3d at 607) concluded that Russell has

deprived Mennuti and Monholland of continuing force. Converse-

ly, Chief Judge Arnold concluded in this case that the Russell

decision approved the decisions in Mennuti and Monholland,

inasmuch as Russell made clear that the inquiry under Section

844(i) must focus on the purported “activity” in which the subject

property is “used.” App., infra, 46a-48a & n.3. Similarly, the

dissenting judge in Ramey stated that the “better-reasoned decisions

such as Mennuti” should govern Section 844(i) analysis. 24 F.3d

at 612; see also United States v. Montgomery, 815 F. Supp. 7, 9

n.2 (D.D.C. 1993) (rejecting the “natural gas” theory, and noting

a conflict between Stillwell and the “better reasoned” opinion in

Mennuti). This case presents an appropriate vehicle for resolving

the conflict among the courts of appeals concerning the reach of

Section 844(i).

At the same time, the Court would have the opportunity to

resolve, once and for all, whether the government’s persistently

broad construction of Section 844(i) makes sense. Consistent with

its argument in Russell (see supra page 10), the government sought

a jury instruction in this case that treated the mere receipt of natural

gas as a “use” of the building in an “activity affecting interstate

commerce.” Thereafter, it defended that instruction at every turn,

arguing that it was a wholly permissible reading of the statute. See

Brief of Appellee, at 46-47; Response to Petition for Rehearing of

the United States of America, at 2; Supplemental Response to

Petition for Rehearing of United States of America, at 3-7. If the

government is correct, however, then every building — private and

public alike, from the mom-and-pop grocery to the smallest cabin

in the woods (provided it receives electricity or telephone service)

— is subject to Section 844(i) jurisdiction. The government

believes this, and took that position below (indeed, that is why it

submitted the instruction in the first place). This case provides the

Court a chance to examine that proposition.

B. The Court Of Appeals’ Decision Cannot Be Reconciled

With The Text Of Section 844(i)

1. The court of appeals’ conclusion that the fitness center

was “used in an activity affecting interstate commerce” makes hash

of the statutory text. By its terms, Section 844(i) requires the

12

government to show that, at the time of the fire, the building was

“used” in an “activity” and that the “activity” in question “affected

interstate commerce.” Under that language, as Chief Judge Arnold

explained, “[t]he proper inquiry is into the function of the building

itself, and then a determination of whether that function affects

interstate commerce.” App., infra, 47a; see also Mennuti, 639

F.2d at 110; Patterson, 792 F.2d at 533-534. None of the three

predicates relied on by the court below meets that statutory

standard. To say that this building was “used” in an “activity”

affecting interstate commerce because it received natural gas or was

owned by a non-resident of Iowa is about as true to the natural

meaning of words as to say that a baseball bat is used as a hickory

storage facility.

“[T]he marketable nature of the property” (App., infra, 7a) is

not an “activity” at all — it is a status. What is more, it is a status

enjoyed by every building in the United States. As Chief Judge

Arnold explained for the dissenters, “[aJll property will sell at some

price” (id. at 15a), and thus all property is “marketable.” If, as

the court of appeals supposed, Section 844(i) is satisfied by simple

“marketability” — by, what the court elsewhere termed, the

building’s “potential for ready reentrance as a functioning business

in the commercial marketplace” (id. at 7a) — there would, in short

order, be nothing left to the limitations contained in Section 844(i).

Moreover, if the mere “potential” for “reentrance as a functioning

business” were enough to satisfy Section 844(i), there would be

nothing left to the clear command of the statute that the building be

“used” in an “activity,” not at some future moment of

“reentrance,” but at the time of the fire. See Russell, 471 U.S. at

862.

Exactly the same is true of the “ownership” rationale invoked

by the court of appeals. Mere out-of-state ownership — even when

coupled with a lease to what the court below conceded was simply

“a corporate shell” (App., infra, 10a) — is not an “activity” at all,

much less an activity that “affects interstate commerce.” See id.

at 15a (Arnold, C.J., dissenting) (“what is the ‘activity’ that the

jury must find? Being owned?”). Like “marketability,”

“ownership” is a characteristic of the property, not an “activity”

in which it is “used.” And like marketability, “ownership” has no

13

logical stopping point. As Chief Judge Arnold explained, “[e]very

building is owned by someone” (ibid).

The “natural gas” theory for establishing Section 844(i)’s

interstate commerce element is equally defective. Being connected

to a gas line is not an “activity.” The ordinary meaning of the

“activity” in which a building is “used” requires an “inquiry * * *

into the function of the building itself.” App., infra, 47a (dissent).

The building in this case was not “used” to consume natural gas;°

indeed, it was not “used” at all. The building’s receipt of natural

gas was wholly incidental to the building’s former function, which

was to provide facilities for athletic recreation. By the time of the

fire, that function was long since over, and no new “activity

affecting interstate commerce” had taken its place.

2. The cour of appeals purported to base its “sweeping”

(App., infra, 10a) construction of Section 844(i) on this Court’s

decision in Russell, but Russell provides cold comfort. Far from

approving such nebulous concepts as “potential” marketability, the

Court rigorously insisted that the government prove a use of the

building in an activity “at the time [the defendant] attempted to

destroy it by fire.” 471 U.S. at 862. The Court upheld the

conviction in Russell only because the government succeeded in

carrying the burden of proving that the building in question was

rental property at the time of the fire.

Not so in the Eighth Circuit. For the Eighth Circuit, it is

enough that the market “fully expected [the fitness center] to

become productive again.” App., infra, 7a. No matter that the

building was closed down, unmarketed, conducting no business.

In the court of appeals’ view, so long as the property was

“marketable” (even if not marketed at the time of the fire), and had

a “potential for reentrance as a functioning business” (even if no

such “reentrance” had taken place at the time of the fire), Section

844(i) would cover the case.

° Cf. Ramey, 24 F.3d at 610 (Michael, J., concurring in part and

dissenting in part) (“electricity consumption is not the ‘activity’ for which

the [residence] is ‘used’”).

14

Russell does not extend that far. To the contrary, just as the

Court declined the government’s (inveterate) invitation to embrace

the “natural gas” theory, so too did the Court foreclose any

suggestion that mere “potentials” and “possibilities” are enough.

The words of the statute mean what they say: the building must be

“used” at the time of the fire “in anf] activity affecting interstate

* * * commerce.” The court of appeals’ decision cannot be

squared with that statutory command.’

C. The Question Presented Is Both Recurring And

Important

The courts of appeals are called on with increasing frequency

to articulate the parameters of the commerce element in Section

’ The court of appeals also purported to find support for its expansive

reading of Section 844(i) in a line of cases holding that a “temporary

cessation” of business activity does not remove a building from the ambit

of the anti-arson statute. See App., infra, 6a (citing cases). Those cases,

however, are sharply distinguishable. In none of them was the building

simply out of business, and permanently so, at the time of the fire.

Rather, in each instance there was a brief, and temporary, interruption in

business as usual. See, e.g., United States v. Parsons, 993 F.2d 38, 41

(4th Cir.) (property remained “rental property” even though it was

temporarily vacant at the time of the fire), cert. denied, 114 S. Ct. 266

(1993); United States v. Shockley, 741 F.2d 1306, 1307 (11th Cir. 1984)

(restaurant remained business property even though it was closed for

repairs at the time of the fire); United States v. Turner, 995 F.2d 1357,

1362 (6th Cir.) (rental property did not lose character as such even though

it had been vacant for two weeks at time of fire and evidence showed that

owner intended to re-rent the property), cert. denied, 114 S. Ct. 282

(1993); United States v. Doby, 872 F.2d 779, 780 (7th Cir. 1989) (per

curiam) (owner had never taken property off rental market, even though

it was vacant at time of fire). In the present case, by contrast, the fitness

center had been shut down for nearly a month at the time of the fire; had

never been placed on the rental or sales market; and was being used in no

activities of any kind -- except for such inert “activities” as “potential

marketability,” receipt of natural gas, and “being owned” by an out-of-

state owner.

15

844(i).° What is more, apart from its inherent importance as a

question of federal statutory construction, the question whether

Section 844(i) applies to otherwise private facilities — simply

because they are “marketable” in “nature,” receive interstate

utilities, or have an out-of-state owner — raises substantial issues

of federalism. Section 844(i) does not, after all, cover all arsons

of all buildings. It covers only those arsons of buildings “used in

interstate commerce” or “used * * * in anf] activity affecting

interstate * * * commerce.” The limitation effected by that

language is designed to prevent precisely the kind of wholesale

federalization of arson that is accomplished by the decision below,

which extends federal jurisdiction over every structure (and vehicle)

in the nation that is “marketable in nature,” uses natural gas,

electricity, or even gasoline, and has an owner who resides out of

State.

Such an incursion tramples established notions of federalism

and warrants further review.” This Court has admonished that,

“unless Congress conveys its purpose clearly, it will not be deemed

to have significantly changed the federal-state balance.” United

States v. Bass, 404 U.S. 336, 349 (1971). Because “Congress has

traditionally been reluctant to define as a federal crime conduct

readily denounced as criminal by the States,” this Court has

* See, e.g., United States v. Menzer, 29 F.3d 1223, 1229-1230 (7th

Cir.), cert. denied, 115 S. Ct. 515 (1994); United States v. Miller, 24

F.3d 1357, 1360-1361 (11th Cir. 1994); Ramey, 24 F.3d at 606-607;

Turner, 995 F.2d at 1361; United States v. Lake, 985 F.2d 265, 268-269

(6th Cir. 1993); Shively, 927 F.2d at 807-808; United States v. Medeiros,

897 F.2d 13, 15-17 (ist Cir. 1990); United States v. Mayberry, 896 F.2d

1117, 1120 (8th Cir. 1990).

* This Court has repeatedly reversed circuit court rulings adopting

overly broad constructions of federal criminal statutes. See, e.g., Tanner

v. United States, 483 U.S. 107, 131 (1987) (18 U.S.C. 371; conspiracy

to defraud the United States); McNally v. United States, 483 U.S. 350,

359-360 (1987) (18 U.S.C. 1341; mail fraud); United States v. Maze, 414

U.S. 395, 405 & n. 10 (1974) (same); see also United States v. Kozminski,

487 U.S. 931, 951-952 (1988) (18 U.S.C. 241, 1584; involuntary

servitude).

16

required a clear statement in the statutory language that indicates

that “the legislature has in fact faced, and intended to bring into

issue, the critical matters involved” in altering the relationship

between federal and state criminal jurisdiction. /bid. As demona-

strated supra, there is no such clear signal that Congress intended

to afford Section 844(i) the almost limitless reach given to it by the

court below."®

There is, finally, the importance to petitioner: As Chief Judge

Arnold explained, Dale Ryan “is in jail for life” (App., infra, 16a)

on a conviction arising from the burning of a building that, on this

record, was by no plausible reckoning “used in an activity affecting

interstate commerce.” Five judges of the Eighth Circuit concluded

that petitioner’s conviction should be reversed. That was assuredly

correct: By accepting “marketability,” out-of-state ownership, and

the receipt of natural gas as sufficient to satisfy the interstate

commerce element, the court of appeals completely misread

(indeed, ignored) the text of Section 844(i). It is “inconceivable

that the Framers of the Commerce Clause or even the Congress that

approved Section 844(i) contemplated” that Section 844(i) would

have such dramatic breadth. Montgomery, 815 F. Supp. at 11.

‘0 The costs to state sovereignty and to federal law enforcement posed

by this extension of federal jurisdiction are not merely theoretical. In

1991, for example, there were approximately 46,478 arsons involving the

burning of structures, and 21,917 arsons involving motor vehicles.

Federal Bureau of Investigation, Uniform Crime Reports for the United

States — 1991, 54-55 (1992). Under the approach adopted by the

majority below, virtually all of those arsons would likely become federal

offenses. The decision below — and the authorities it chiefly relied on —

completely ignore these significant federalism concerns. In contrast, Chief

Judge Armnold’s dissents recognize those concerns, and offer an

interpretation of Section 844(i)’s interstate commerce element that is

faithful to the language and history of the statute, and to the proper

balance between federal and state criminal jurisdiction.

17

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

RICHARD J. LAZARUS ANDREW L. FREY

Washington University LAWRENCE S. ROBBINS

School of Law Counsel of Record

St. Louis, MO 63130 JAMES G. DUNCAN

(314) 935-6495 Mayer, Brown & Platt

2000 Pennsylvania Ave., NW

Washington, D.C. 20006

F. THOMAS SCHORNHORST (202) 463-2000

Indiana University

School of Law

Bloomington, IN 47405

(812) 855-9198

JANUARY 1995

APPENDICES

la

APPENDIX A

No. 92-1357

UNITED STATES COURT OF APPEALS,

EIGHTH CIRCUIT

UNITED STATES OF AMERICA, APPELLEE,

V.

DALE LYNN RYAN, APPELLANT.

Submitted March 8, 1994

Decided Oct. 31, 1994

Before RICHARD S. ARNOLD, Chief Judge, JOHN R.

GIBSON, Senior Circuit Judge, McCMILLIAN, FAGG, BOWMAN ‘

WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN. and

MORRIS SHEPPARD ARNOLD, Circuit Judges, En Banc.!

WOLLMAN, Circuit Judge.

A divided panel of this court affirmed Dale Lynn Ryan’s

conviction of violating the federal arson Statute, 18 U.S.C.

§ 844(i). United States v. Ryan, 9 F.3d 660 (8th Cir.1993). We

granted rehearing en banc and vacated the panel opinion. Having

considered the issue raised by the Suggestion for rehearing en banc,

we now affirm, and we reinstate the panel Opinion as to the other

issues raised in Ryan’s initial appeal.

' MURPHY, Circuit Judge, took no part in the consideration or

decision of this case.

2a

I.

We recount only those facts relevant to the issue remaining in

this case, referring the reader to the panel opinion for the facts

giving rise to the charge against Ryan.

In January 1989, Ryan began managing the Ryan Fun and

Fitness Center (the Fitness Center), a business located in West

Burlington, Iowa, and owned by Ryan’s father, Ronald D. Ryan,

a Kansas resident. On December 6, 1989, after an unsuccessful

year, Ryan’s father ordered the Fitness Center closed. Ryan and

his father then began efforts to sell the business. Ryan took a

photographic inventory of the interior and had a real estate agent

inspect the property for purposes of conducting a market value

analysis. Ryan also removed his personal property from the

building on December 26 in anticipation of a quick sale.

On January 1, 1990, fire engulfed the Fitness Center. Two

volunteer fire fighters died fighting the blaze. A jury convicted

Ryan of violating the federal arson statute, 18 U.S.C. § 844(i), and

the district court sentenced him to 328 months in prison. Ryan

appealed, raising several issues. As set forth above, a divided

panel of this court rejected all of Ryan’s arguments and affirmed

his conviction.

II.

Title 18, section 844(i) of the United States Code makes arson

of any building or property used in interstate commerce or in any

activity affecting interstate commerce a federal crime, providing:

Whoever maliciously damages or destroys ... 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; ... and if death

results to any person, including any public safety officer

performing duties as a direct or proximate result of

conduct prohibited by this subsection, shall also be

subject to imprisonment for any term of years, or to the

death penalty or to life imprisonment as provided in

section 34 of this title.

i

4

3a

(emphasis added).

With respect to section 844(i)’s interstate commerce

requirement, the district court gave the jury the following

instruction:

“Interstate commerce” means trade, or business, or travel

between the states. “Used in an activity affecting

interstate commerce” means to affect in some way trade,

or business, or travel between the states.

If you find from the evidence beyond a reasonable doubt

that, on or about January 1, 1990, the Ryan Fun and

Fitness Center building was owned by Ronald D. Ryan,

a resident of Kansas, and leased by him to Ryan Air

Services, Inc., a Kansas Corporation, then the required

affect [sic] on interstate commerce has been proved; or

if you find from the evidence beyond a reasonable doubt

that on January 1, 1990, the Ryan Fun and Fitness Center

building was supplied with natural gas used to heat the

building, and such natural gas was supplied from outside

of the state of Iowa, then the required affect [sic] on

interstate commerce has been proved. If you do not so

find, then the required affect [sic] on interstate commerce

has not been proved and you must find the defendant not

guilty.

Jury Instruction Number 10. Ryan argues that neither of the bases

set forth in the instruction — the out-of-state ownership and lease

agreement, and the supply of natural gas from an out-of-state

source -— satisfies section 844(i)’s interstate commerce nexus

requirement.

Ryan did not object to this instruction at trial. Accordingly,

we review the challenge to Instruction Number 10 under the plain

error standard of review. Fed. R. Crim. Pro. 52(b); United States

v. Olano, --- U.S. ---, --, 113 §.Ct. 1770, 1776 (1993). Ryan

argues, however, that plain error review is inapplicable because the

interstate commerce element of the offense also describes the basis

for subject matter jurisdiction, which is not waivable and therefore

may be raised at any stage of the proceeding.

4a

Our cases have described the interstate commerce element of

section 844(i) as constituting a jurisdictional predicate of the

substantive offense. United States v. Voss, 787 F.2d 393, 396-97

(8th Cir.), cert. denied, 479 U.S. 888, 107 S.Ct. 286, 93 L.Ed.2d

261 (1986) (substantive element of offense also confers

jurisdiction); see United States v. Mayberry, 896 F.2d 1117, 1119-

20 (8th Cir. 1990); United States v. Hansen, 755 F.2d 629, 630-31

(8th Cir.), cert. denied, 474 U.S. 834, 106 S.Ct. 105, 88 L.Ed.2d

85 (1985); United States v. Michaels, 726 F.2d 1307, 1309-10 (8th

Cir.), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 38

(1984). See generally United States v. Bryant, 766 F.2d 370, 375

(8th Cir. 1985) (noting that an interstate commerce nexus

requirement “in criminal and civil statutes is most often for the

purpose of conferring federal jurisdiction rather than of defining

substantive elements of an offense“), cert. denied, 474 U.S. 1054,

106 S.Ct. 790, 88 L.Ed.2d 768 (1986). Other circuits also

recognize this element of the crime of arson as the basis for

jurisdiction under section 844(i). See United States v. Turner, 995

F.2d 1357, 1361-62 (6th Cir.), cert. denied, --- U.S. ----, 114

S.Ct. 282, 126 L.Ed.2d 232 (1993); United States v. Medeiros, 897

F.2d 13, 15-17 (1st Cir. 1990); United States v. Doby, 872 F.2d

779, 780 (7th Cir. 1989) (per curiam), aff’g, 684 F. Supp. 558

(N.D. Ind. 1988); United States v. Shockley, 741 F.2d 1306, 1307

(11th Cir. 1984) (per curiam); United States v. Grossman, 608

F.2d 534, 535-37 (4th Cir. 1979).

The district court had subject-matter jurisdiction in this case by

virtue of the fact that Ryan was charged with an “offense against

the United States.” 18 U.S.C. § 3231. The interstate commerce

aspect of this case arises merely as an element of the section 844(i)

Offense. If that element is not satisfied, then Ryan is not guilty;

but the court is not by the failure of proof on that element deprived

of judicial jurisdiction. Ryan could have raised the question

whether Congress had exceeded the power granted to it under the

Commerce Clause—a question of legislative jurisdiction. Having

not been raised, that constitutional question has no bearing on

whether we have jurisdiction to proceed in this case.

Sa

Il.

In enacting section 844(i), Congress intended to exercise its

full power under the Commerce Clause of the Constitution. Russell

v. United States, 471 U.S. 858, 859 & n.4, 105 S.Ct. 2455, 2456

& n. 4, 85 L.Ed.2d 829 (1985); Mayberry, 896 F.2d at 1119-20.

The statute is intended to protect all business property. Russell,

471 U.S. at 862, 105 S.Ct. at 2457; Mayberry, 896 F.2d at 1120.

Indeed, section 844(i) reaches arson of any property having even

a de minimis connection to interstate commerce. Mayberry, 896

F.2d at 1120; Voss, 787 F.2d at 397. This standard is easily met,

even when the property is temporarily closed or vacant. Mayberry,

896 F.2d at 1120; United States v. Hermes, 847 F.2d 493, 496 (8th

Cir. 1988) (per curiam).

In Voss, while acknowledging the de minimis standard as

sufficient to satisfy the statute, we recognized that limits do exist

on the reach of section 844(i). 787 F.2d at 397-400. Although we

held in Voss that the purchase of out-of-state insurance standing

alone was insufficient, we recognized that there were additional

facts in the record sufficient to satisfy the Russell standard under a

proper jury instruction. Jd. at 398.

Our subsequent cases have continued to acknowledge the

expansive scope of section 844(i). Thus, we have held that section

844(i) extends to temporarily closed businesses. In Mayberry, we

found that section 844(i) was applicable to a building containing a

sawmill that had been out of operation for a month because of a

lack of logs to cut. 896 F.2d at 1120. We noted that at the time

of the fire the mill would have been operational had there been logs

available to cut, that the mill still received electricity, and that there

was an ongoing lease between the owner of the premises and the

operator of the sawmill. Jd. at 1119. All things considered, the

sawmill still affected, and could affect, interstate commerce.

Likewise in the present case, had there been a sufficient number of

clients to serve at the Fitness Center, they could readily have been

served in keeping with the nature of the property.

In Hermes, we found that an unleased commercial building

was within the scope of section 844(i). 847 F.2d at 496. We

noted that the owner of the property had advertised its availability

for use and that the property was in fact available for commercial

6a

use. /d. We further stated that the fact that the building was not

“occupied by a tenant does not detract from its character as

commercial property.” Jd. The emphasis on the character of the

property warrants note because it acknowledges the importance of

the broader commercial market. As was true of the property in

Hermes, the Fitness Center constituted property having an available

use and thus was suited for the broader commercial market and

perforce fell within the broad scope of 844(i).

In United States v. Shriver, we found that a temporarily closed

nightclub being rehabilitated at the time of the arson was property

used in an activity affecting interstate commerce. We noted that a

“successful reopening would return the establishment to the market

place.” 838 F.2d 980, 983 (8th Cir. 1988).

Our broad interpretation of section 844(i) is fully in accord

with that of other circuits. In Turner, the Sixth Circuit, in

upholding a conviction for arson of vacant rental property, stated

that “property routinely used in interstate commerce activity does

not lose its interstate characteristics because of a temporary

cessation of that activity.” 995 F.2d at 1362. Likewise, in

Medeiros, the First Circuit found ample precedent for the

proposition “that strictly contemporaneous connections [are] not

required to meet the interstate commerce requirement.” 897 F.2d

at 17; see also Doby, 872 F.2d at 780 (vacant home with

advertised rental unit maintained sufficient nexus); Shockley, 741

F.2d at 1307 (building closed for repairs retained its interstate

character); Grossman, 608 F.2d at 536-37 (rejecting argument that

“844(i) requires a contemporaneous connection with interstate

commerce without regard to” other considerations). Cf. United

States v. Patterson, 792 F.2d 531, 533-34 (Sth Cir.) (finding

partially completed condominium units “‘used’ within the meaning

of” section 844(i)), cert. denied, 479 U.S. 865, 107 S.Ct. 220, 93

L.Ed.2d 149 (1986).

Prior to its closing, the Fitness Center was business property

with firmly established connections to interstate commerce. We

find pervasive evidence in the record that the Fitness Center

maintained a sufficient post-closing nexus with interstate commerce

to bring it within the reach of the statute. The property was

commercial in nature, and the totality of circumstances indicates

Ta

that it was embraced by the recognized meaning and intent of

section 844(i) despite a cessation of its operation as the Fitness

Center.

There is manifold evidence that the Fitness Center was about

to be placed on the market for sale. Both Ryan and his father

detailed their discussions with real estate agents, the elder Ryan

testifying that the property, while not formally listed, was “verbally

listed” in an attempt to sell it quickly before winter ended. Ronald

Ryan, VI. Tr. at 171, 157. Additional preparations for cleaning

the facility and Ryan’s removal of his personal property further

indicate the marketable nature of the property and its potential for

ready reentrance as a functioning business in the commercial

marketplace.

We need not rely solely on the preparations for the sale of the

property, because there is ample other evidence of a connection to

interstate commerce. The short duration of the closure, receipt of

utility services for much of the month and continued receipt of

natural gas, Ryan’s continued presence on his father’s payroll as

manager of the Fitness Center through January 28, 1990, and the

lease arrangement itself all lead to the conclusion that the Fitness

Center was an instrumentality of interstate commerce for purposes

of satisfying the requirements of section 844(i).

The Fitness Center was business property that the broader

commercial market continued to embrace despite its inefficiencies

with respect to the particular purpose for which it was operated.

The market fully expected it to become productive again. Neither

the building itself nor its commercial nature had been abandoned.

See Hermes, 847 F.2d at 496 (vacant rental property still retains

commercial character); Shockley, 741 F.2d at 1307 (closed

restaurant retained its “interstate character”). In short, the Fitness

Center was the type of property that Congress intended to include

within the ambit of section 844(i).

Ryan raises the concern that to uphold the application of

section 844(i) in this case would de facto federalize all arson cases.

This concern is misplaced. Our interpretation of section 844(i)

need not, and does not, go so far as those cases that have found the

receipt of electricity or natural gas by a purely private residence to

constitute a connection with interstate commerce sufficient to satisfy

8a

the requirements of section 844(i). See United States v. Ramey, 24

F.3d 602 (4th Cir.1994); United States v. Stillwell, 900 F.2d 1104

(7th Cir.), cert. denied, 498 U.S. 838, 111 S.Ct. 111, 112 L.Ed.2d

81 (1990). Suffice it to say that all of the circumstances of this

case, when viewed in the light of the Court’s holding in Russell and

of our prior decisions regarding temporarily closed commercial

property, lead to the conclusion that the Fitness Center was covered

by the broad reach of section $44(i).

IV.

A. Jury Instruction on Required Interstate Commerce Nexus

Satisfied that a sufficient factual basis existed to warrant the

application of section 844(i), we must determine if the jury

instructions sufficiently defined the interstate commerce nexus

required to fit the definition of the crime. Jury verdicts are not

supportable when based on instructions that do not require the

proper finding of facts to support each element of the crime. Voss,

787 F.2d at 398; see Sandstrom v. Montana, 442 U.S. 510, 99 S.

Ct. 2450, 61 L.Ed.2d 39 (1979). Additionally, a verdict based on

jury instructions that provided alternative bases for a finding, one

of which is legally inadequate, is presumed to have rested on the

insufficient basis. See Griffin v. United States, 502 U.S. 46, ----,

112 S. Ct. 466, 474, 116 L.Ed.2d 371 (1991); United States v.

Goodner Bros. Aircraft, Inc:, 966 F.2d 380, 384 (8th Cir. 1992),

cert. denied, -- U.S. —-, 113 S. Ct. 967, 122 L.Ed.2d 123

(1993); see also United States v. Wilkinson, 26 F.3d 623, 625 (6th

Cir. 1994) (jury instructions inaccurately defining elements of

offense may rise to level of plain error).

Each of the bases set out in Instruction Number 10 must be

reviewed for prejudicial error. Our analysis of the challenged

instruction is distinguished from that employed in Voss. We

analyze properly objected to jury instructions under the harmless

error standard of Federal Rule of Criminal Procedure 52(a). See

Voss, 787 F.2d at 398. Because Instruction Number 10 was not

objected to at trial, however, we analyze its validity in terms of

plain error in accordance with Federal Rule of Criminal Procedure

52(b). United States v. Young, 470 U.S. 1, 15-16, 105 S. Ct. 1038,

1046-1047, 84 L.Ed.2d 1 (1985); see United States v. Bettelyoun,

oleae —

9a

16 F.3d 850, 852 (8th Cir.1994) (reviewing jury instruction for

plain error).

Plain error review involves a three-step analysis: (1) the

district court must have committed an error, (2) that error must be

plain, i.e., it must be clear under current law, and (3) the error

must affect the defendant’s substantial rights. Olano, --- U.S. at

---- - ---, 113 S. Ct. at 1776-78; United States v. Montanye, 996

F.2d 190, 192 (8th Cir.1993) (en banc). We recently summarized

the plain error rule as follows:

The plain error standard affords a court of appeals the

discretion to provide a remedy for an aggrieved defendant

who demonstrates that there was an error, which is a

deviation from an unwaived legal rule; the error was

plain, meaning clear or obvious; and the error affected

the defendant’s substantial rights, which requires a

showing that the error was prejudicial and affected the

trial’s outcome.

United States v. Johnson, 12 F.3d 827, 835 (8th Cir.), cert.

denied, --- U.S. --, 114. S. Ct. 1860, 128 L.Ed.2d 482 (1994).

If a forfeited error meets the foregoing requirements, we have

discretionary authority to order its correction. Olano, --- U.S. at

~--, 113 S$. Ct. at 1778; Johnson, 12 F.3d at 835; Montanye, 996

F.2d at 192. We should exercise that discretion when the error

results in a miscarriage of justice or “seriously affect{s] the

fairness, integrity, or public reputation of judicial proceedings.”

Olano, --- U.S. at ----, 113 §. Ct. at 1779 (quoting United States

v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555

(1936)); Montanye, 996 F.2d at 192.

The burden of proving plain error is on the party asserting it.

See, e.g., United States v. Jennings, 12 F.3d 836, 838-39 (8th

Cir.1994); United States v. Ragan, 952 F.2d 1049, 1049 (8th

Cir.1992). We conclude that Ryan has failed to show that any

error in the district court’s instruction “is clear under current law.”

Olano, --- U.S. at ----, 113 S. Ct. at 1777.

To properly determine whether any error is clear under current

law, we must refer to our earlier overview of the required interstate

commerce nexus under section 844(i). It is clear that an instruction

10a

could have been formulated and presented under these facts

sufficient to allow a proper jury finding of the requisite interstate

nexus. It is not so clear, however, that the instruction actually

given was a plainly impermissible broadening of 844(i)’s scope.

Instruction Number 10 states that if the jury found that the

Fitness Center building was owned by Ronald Ryan, a Kansas

resident, and leased by him to Ryan Air Services, Inc., a Kansas

corporation, then the required effect on interstate commerce had

been proved. Although we have never held out-of-state ownership

sufficient on its own terms to satisfy the elements of section 844(i),

that status, coupled with the lease arrangement, is not a plainly

inaccurate showing of sufficient ties to interstate commerce.

Russell itself characterized a purely local lease as part of a broader

commercial market. 471 U.S. at 862, 105 S.Ct. at 2457. The

Ryan lease, although transacted through a corporate shell, indicates

the marketable nature of the property. Additionally, Ryan’s father

manifested his ownership status through the exercise of direct, final

control over the property in a necessarily interstate manner. In

light of how broadly the Russell Court, our decisions, and other

circuits have construed section 844(i), we cannot find that this

portion of the instruction constituted plain error.

The instruction alternatively states that a finding that the

Fitness Center was supplied with natural gas from outside lowa

sufficiently established the required effect on interstate commerce.

We have not ruled on whether receiving out-of-state natural gas by

itself satisfies section 844(i)’s interstate commerce requirement. In

Hansen, we indicated that reliance on the use of electricity

transported through interstate commerce to confer jurisdiction

“would seem to stretch the notion of interstate commerce beyond

the limits of logic.” 755 F.2d at 631 n.4. Hansen, however, was

decided before the Russell Court’s recognition of the sweeping

jurisdictional scope of the statute.

Although we find it unnecessary to determine whether the

receipt and use of natural gas or electricity transported in interstate

commerce is alone sufficient to satisfy the requirements of section

844(i), we note, without expressing any agreement with those

decisions, that two of our sister circuits, relying on Russell, have

gone beyond even the challenged instruction’s approach. In

lla

Stillwell, the Seventh Circuit held that section 844(i)’s reach

extends to private residences whose only nexus with interstate

commerce is the receipt of natural gas transported by an interstate

pipeline. 900 F.2d at 1107-10. More recently, in Ramey, the

Fourth Circuit found that the receipt by a private residence of

electricity furnished through an interstate power grid satisfied the

statute’s interstate commerce requirement. 24 F.3d at 607.

Putting aside Ramey, which was not decided until after Ryan

had been tried and convicted, and Stillwell, Ryan has still failed to

meet his burden of proving clear error under our applicable circuit

case law regarding the application of section 844(i) to temporarily

closed commercial properties. We cannot say that an unobjected-to

instruction on the sufficiency of the receipt of natural gas by a

temporarily closed commercial entity constitutes remediable plain

error. Accordingly, “[bJecause the district court did not violate our

current cases ..., the first two limitations on our appellate authority

under Rule 52(b) are not overcome.” Montanye, 996 F.2d at 193.

B. Jury Instruction Regarding Proximate Cause

Although we granted rehearing solely on the basis of the

interstate commerce nexus issue, Ryan also raised by way of a

footnote in his brief a challenge to Jury Instruction Number 13,

which set out the causal elements necessary for the jury to hold

Ryan responsible for the deaths of the fire fighters. Section 844(i)

provides that the deaths must be the “direct or proximate result of”

the arson. With respect to the proximate cause requirement, the

district court gave the following instruction:

The deaths of William Klein and Joseph Wilt resulted

from defendant’s conduct of setting the fire if his conduct

was a proximate cause of their deaths. Defendant’s

conduct was a “proximate cause” of their deaths if it was

a substantial factor in causing them to die on January 1,

1990, and they would not have died then except for

defendant’s conduct.

“Substantial” means that defendant’s conduct has such an

effect in producing the deaths as to lead a reasonable

person to regard his conduct as a cause of the deaths. An

event, such as the deaths of William Klein and Joseph

12a

Wilt, may have more than one proximate cause. The

government need not prove that defendant’s conduct was

the only proximate cause of their deaths; it needs to prove

only that defendant’s conduct was a proximate cause of

their deaths.

Jury Instruction Number 13. Ryan challenges this Instruction as

denying the jury an opportunity to determine whether the necessary

element of reasonable foreseeability was met. We conclude,

however, that the legal principle of proximate cause embodied in

section 844(i) was adequately presented to the jury. The panel

decision appropriately disposed of this matter, and we reinstate the

panel opinion on this issue as well.

The judgment of conviction is affirmed.

MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring

in the judgment.

I concur in the judgment in this case because I do not believe

that the district court’s error, if any, was plain, since the defendant

has not demonstrated that it “affected the outcome of the District

Court proceedings.” United States v. Olano, --- U.S. ----, ----, 113

S. Ct. 1770, 1778, 123 L.Ed.2d 508 (1993).

I write separately simply to express my regret that the court

passes up an opportunity explicitly to overrule those cases of ours

that hold (or say) that the statutory requirement of an interstate

commerce nexus in cases like this goes to the jurisdiction of the

federal courts. It does not. A connection to interstate commerce

is merely an element of the statutory offense, and, if proof of it is

missing, the defendant is entitled to an acquittal. But the federal

courts had statutory jurisdiction in the first place to try the case

because the government charged the defendant with a federal crime,

and they do not lose jurisdiction because of a failure of proof. A

failure to prove the interstate commerce element no more deprives

us (or the district court) of jurisdiction than would a failure to

prove that a building was burned down. Both these facts are merely

elements of the crime; neither is jurisdictional. The court seems to

recognize this legal proposition at one point in its opinion, yet it

also cites cases standing for the opposite proposition without

overruling them. Since I see the present configuration of the

|

13a

opinion as internally inconsistent, I respectfully dissent from so

much of it as implies the continued validity of the idea that an

interstate commerce nexus has jurisdictional significance in cases

like the present one.

RICHARD S. ARNOLD, Chief Judge, with whom

McMILLIAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit

Judge, and MAGILL, Circuit Judge, join, concurring in the

judgment in part and dissenting in part.

The appellant, Dale Ryan, advances three arguments as

possible bases for reversal of his conviction in his petition for

rehearing en banc. Each argument derives from his assertion that

Jury Instructions 10 and 13 are a misstatement of the law under 18

U.S.C. § 844(i). ‘First, he argues that instruction 10 was

inadequate to establish subject-matter jurisdiction. In a related

argument, he contends that the District Court failed to instruct the

jury properly on an essential element of section 844(i). Finally, he

suggests that Instruction 13 failed to present properly the issue of

reasonable foreseeability to the jury. I agree with the result

reached by the Court with regard to arguments one and three

presented by the appellant. However, with respect to argument

two, I am compelled to dissent from the Court’s conclusion that the

instruction was not plain error. In all other respects, I concur in

the decision to reinstate the panel opinion.

When conducting a plain-error review, this Court is guided by

Federal Rule of Criminal Procedure 52(b): “Plain errors or defects

affecting substantial rights may be noticed although they were not

brought to the attention of the [district] court.” A Rule 52(b)

review requires: 1) actual error; 2) plain under current law; 3)

that affects substantial rights. United States v. Olano, --- U.S. ----,

113 S. Ct. 1770, 123 L.Ed.2d 508 (1993).

Jury Instruction 10 stated in part:

“Interstate commerce” means trade, or business, or travel

between the states. “Used in an activity affecting

interstate commerce” means to affect in some way trade,

or business, or travel between the states.

If you find from the evidence beyond a reasonable doubt

that, on or about January 1, 1990, the Ryan Fun and

l4a

Fitness Center building was owned by Ronald D. Ryan,

a resident of Kansas, and leased by him to Ryan Air

Services, Inc., a Kansas Corporation, then the required

effect on interstate commerce has been proved; or if you

find from the evidence beyond a reasonable doubt that on

January 1, 1990, the Ryan Fun and Fitness Center

building was supplied with natural gas used to heat the

building, and such natural gas was supplied from outside

of the state of Iowa, then the required effect on interstate

commerce has been proved. If you do not so find, then

the required effect on interstate commerce has not been

proved and you must find the defendant not guilty.

I have already explained why I consider the instruction

incorrect. Ryan v. United States, 9 F.3d 660, 675-76 (8th Cir.

1993) (dissenting opinion). Interestingly, the panel did not mention

the fact that trial counsel (not the same lawyers as those now

representing Ryan) did not object to the instruction. The panel

opinion simply addresses the instruction on the merits and upholds

it. Jd. at 665-67. It says nothing about “plain error.” This

represents, I suppose, that the panel was holding, sub silentio, both

that the error, if there were one, would be “piain,” and that, in that

event, we should exercise our discretion to reach it. It seems

extraordinary to me that the Court en banc now shrinks from

deciding the merits. The panel opinion decided the issue on the

merits in such a way as to cause a majority of the Court to rehear

the case en banc. The Court en banc now decides the case on the

basis of a procedural default that was argued to the panel but

necessarily excused by the manner of the panel’s disposition.

Under our practice, however, the order granting the suggestion

for rehearing en banc automatically vacates the panel opinion. Sv

we now write on a clean slate, and I concede that the Court en banc

has power to adopt a position that the pane! seemingly rejected,

even though by doing so it arguably wastes on a procedural

discussion the scarce resource of an en banc proceeding, a

proceeding initiated in the first place with the thought of deciding

on the merits an important question of statutory construction

affecting the boundary between federal and state criminal

prosecutions. At least the en banc Court is not approving the

instruction that was given, and I take some comfort in that.

1Sa

I will not repeat here my reasons for believing an error

occurred. The question is whether the error was “plain,” in the

sense of clear or obvious. I believe this is true with respect to both

“prongs” (forgive the cliche) of the instruction, and, as the Court

notes, ante at 8, if either suggested basis of interstate nexus was

wrong, the conviction is infirm.

First, as to the ownership of the building by a Kansas resident

and its being leased to a Kansas corporation: As the Court Says,

ante at 10, “we have never held out-of-state ownership sufficient on

its own terms to confer jurisdiction....” On the contrary, we have

held virtually the opposite. In United States v. Voss, 787 F.2d

393, 396-98 (8th Cir.), cert. denied, 479 U.S. 888, 107 S.Ct. 286,

93 L.Ed.2d 261 (1986), we held that a building’s being insured by

an out-of-state company was not sufficient to bring it within the

statute. The interstate financial effect of out-of-state ownership and

that of out-of-state insurance coverage seem indistinguishable to

me. That the Kansas owner, for business purposes of his own,

leased the property to his controlled Kansas corporation adds

nothing. Of course the property is marketable. The owner can

lease it to himself. He can also sell it to someone else. All

property will sell at some price.

What the Court fails to take into account, I think, is the

phrasing of the statute. It refers not to a building whose

destruction will affect interstate commerce, but to the destruction

of a “building used ... in ... any activity affecting interstate ...

commerce....” Under the jury instruction in question, what is the

“activity” that the jury must find? Being owned? Every building

is owned by someone, though every building is not insured.

Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 85

L.Ed.2d 829 (1985), on which the Court relies, was decided before

our Voss decision, and Voss discusses Russell. Russell, in any

event, continues to stress that the statute “[b]y its terms ... only

applies to property that is ‘used’ in an ‘activity’ that affects

[interstate] commerce.” 471 U.S. at 862, 105 S.Ct. at 2457

(emphasis added). The building in Russell was being rented to

apartment dwellers at the time of the fire. The building here was

just cumbering the ground. Cf. Luke 13:7 (King James). It was

not being “used” in any “activity.”

16a

The instruction also permitted conviction upon a finding that

the building was being supplied with out-of-state natural gas. Is

being connected to a gas line an “activity”? We indicated to the

centrary in United States v. Hansen, 755 F.2d 629, 631 n.4 (8th

Cir.), cert. denied, 474 U.S. 834, 106 S. Ct. 105, 88 L.Ed.2d 85

(1985) (electricity). It is true that Russell was decided after Hansen

(by four months), but the point is that there must be an activity

affecting interstate commerce. Here there is none. I find

somewhat disturbing the Court’s attempt to bolster its holding by

citing cases from other circuits (one of which, United States v.

Stillwell, 900 F.2d 1104 (7th Cir.), cert. denied, 498 U.S. 838,

111 $.Ct. 111, 112 L.Ed.2d 81 (1990), was actually disapproved

by the panel in this case, 9 F.3d at 667). The district courts are

obligated to follow our cases, not divergent authorities from other

circuits. It is “our current cases” that we look to in plain-error

analysis. United States v. Montanye, 996 F.2d 190, 193 (8th

Cir. 1993) (en banc).

So I think there was plain error here. The next stage of the

inquiry is whether the error affected Ryan’s substantial rights. A

defendant’s substantial rights are affected when prejudice is shown.

The defendant “bears the burden of persuasion with respect to

prejudice.” Olano, --- U.S. at ----, 113 S. Ct. at 1778. Thus, “in

most cases,” a defendant must demonstrate that the error was

prejudicial in that it “affected the outcome of the District Court

proceedings.” Jbid. Here, the instruction was erroneous with

regard to an essential element of the crime. Had the jury been

properly instructed in this case, it could have reached a different

conclusion. Consequently, the judicial proceeding was

compromised, and Ryan was unavoidably prejudiced.

I discuss briefly the final step in plain-error analysis. Even

when there is “plain error,” we still have discretion whether to

decide the point. Several reasons convince me we should exercise

this discretion affirmatively. Ryan is in jail for life. He has an

obvious ineffective-assistance-of-counsel claim (failure to object to

instruction 10) which will be raised in the inevitable Section 2255

motion. Such a claim is, to say the least, not insubstantial. Why

not go ahead and decide it now, and save the District Court and

ourselves the trouble of enduring a collateral proceeding? And

finally, the issue is one of great public importance, transcending

17a

this particular case: How far did Congress intend to go in taking

over for the federal government an area of criminal justice

customarily handled by the States?

I respectfully dissent in part.

LOKEN, Circuit Judge, concurring in part and dissenting in

part.

I agree with Chief Judge Arnold that the district court

committed plain error in the supplied-with-natural-gas portion of its

Jury Instruction 10, that that error affected Ryan’s substantial

rights, and that we should exercise our discretion to decide this

issue on the merits. To that extent, J respectfully dissent in part.

In all other respects, I concur in the opinion of the Court.

18a

APPENDIX B

No. 92-1357SIDM

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH COURT

UNITED STATES OF AMERICA, APPELLEE

V.

DALE LYNN RYAN, APPELLANT

January 5, 1994, Decided

Original Opinion of October 26, 1993, Reported at: 1993

U.S. App. LEXIS 27707.

OPINION: Appellant’s petition for rehearing with suggestion

for rehearing en banc has been considered by the court and is

granted. The opinion and judgment of October 26, 1993, are

vacated. An order setting the time ard place for oral argument will

be entered on a later date.

January 5, 1994

19a

APPENDIX C

No. 92-1357

UNITED STATES COURT OF APPEALS,

EIGHTH CIRCUIT

UNITED STATES OF AMERICA, PLAINTIFF/APPELLEE,

V.

DALE LYNN RYAN, DEFENDANT/APPELLANT.

Submitted Oct. 12, 1992

Decided Oct. 26, 1993

Rehearing and Rehearing En Banc Granted;

Opinion and Judgment Vacated

Jan. 5, 1994

Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN,

Circuit Judge, and LARSON,” Senior District Judge.

LARSON, Senior District Judge.

Dale Lynn Ryan appeals from final judgment entered in the

district court’ upon a jury verdict finding him guilty of arson, in

” The Honorable Earl R. Larson, Senior United States District Judge

for the District of Minnesota, sitting by designation.

' The Honorable Harold D. Vietor, United States District Judge for the

Southern District of Iowa.

20a

violation of 18 U.S.C. § 844(i). As a result of the arson, two

volunteer firefighters died. Ryan was sentenced to 328 months of

imprisonment. On appeal, Ryan asserts a Brady violation, denial

of due process and his Sixth Amendment rights stemming from

references to his retention of counsel, and four distinct errors in

jury instructions. In addition, Ryan argues that the use of special

verdict interrogatories was improper, that he was convicted of

murder without a showing of culpability, that the sentencing

guidelines were misapplied, and that the evidence was insufficient

to support his arson conviction. We affirm the judgment of the

district court.

I.

On January 1, 1990, a fire destroyed the Ryan Fun and Fitness

Center (“the Center”) in West Burlington, Iowa. The Center,

recently closed due to financial difficulties, was managed by

appellant Dale Ryan, and owned by Ryan’s father, a successful

Kansas businessman. (Ryan’s father had previously backed Ryan

in two failed business ventures.) Ryan assumed management of the

center in January of 1989 and immediately began a major

remodeling effort. The ensuing year was fraught with difficulties,

financial and familial, and Ryan soon lost his enthusiasm for the

Center, while his relationship with his father became increasingly

strained. Ryan stated on several occasions that he wished the

Center would burn down. Ryan also expressed concern on several

occasions that his father did not hold him in high regard because of

his failures.

On December 6, 1989, Ryan’s father directed that the Center

be closed. Ryan had the locks changed, retaining the only two

keys in his possession. (He did not replace the key in the exterior

box, to be accessed by the fire department in an emergency.) Ryan

then began efforts to sell the Center. On December 15, Ryan took

a complete photographic record of the Center. On December 26,

he removed his personal property, and some property belonging to

the Center, ostensibly in an effort to ready the Center for sale.

(Ryan later made a false claim for insurance coverage on the

property belonging to the Center, claiming that it was lost in the

fire.) On December 20, Ryan requested that U.S. West disconnect

the Center’s dedicated fire alarm line, as well as the regular phone

2la

line. Ryan believed that the lines would be disconnected

immediately. In fact, the regular phone line was disconnected on

December 21 and the dedicated line disconnected on December 28.

Between December 20 and December 28, five trouble signals from

the center (caused by interruption in the electrical current or the

dedicated phone line) were received at the West Burlington law

enforcement center. In each instance, the alarm was reset at the

center’s fire alarm panel, generally within a few minutes. On

December 29, Ryan called U.S. West to verify the disconnection

of the dedicated line.

On December 29, at approximately 2:00 a.m., West

Burlington police officer Larry Garmoe made a routine check of the

Center. In the parking lot, he noticed a car loaded with containers,

including floor solvents, motor oil, and linseed oil. Officer

Garmoe could not identify the labels of several additional containers

located in the back seat. Ryan received a ticket in November, 1989

while driving a car with the same license number. Officer Garmoe

testified that he saw Ryan driving a car with the same license

number on January 10, 1990. (While the license number was never

in dispute, Officer Garmoe did note on the night of December 29,

that the car which he observed was a blue Ford Fairmont. In fact,

the car was a white Mercury Zephyr, owned by Ryan’s father.)

On December 30 and 31, Ryan was distraught and depressed,

apparently over a disagreement with his girlfriend. In late

December, 1989, Ryan made serious inquiries about the purchase

of a bar in Gulf Port, Illinois, indicating that money was no

problem. On January 2, 1990, Ryan again spoke with the owner

of the bar about the purchase, but failed to mention the fire at the

Center.

The fire at the Center was discovered at approximately 8:30

p.m. on January 1, 1990. Firefighters later testified that, upon

their arrival at the Center, all doors were locked and there were no

signs of forcible entry. Firefighters further testified that they

observed unusual fire behavior during the firefighting and rescue

effort, similar, in their experience, to other fires which had been

fueled by flammable liquids. Two distinct and separate red hot

areas, approximately 50 feet apart, glowed on the roof; low

bluish-colored flames which rekindled quickly when blackened with

22a

water danced on the floor; an intense wall of fire which did not

respond to water swept across the lounge area; an isolated, interior

fire confined to the sauna rekindled quickly when doused with

substantial quantities of water; an unusual fire in the wall of the

weight room also rekindled after being blackened with water.

Firefighters Wilt and Klein were the first firefighters to enter the

Center and were discovered missing ten to fifteen minutes later.

Apparently having left their hoses in panic, in response to the wall

of fire in the lounge, the bodies of the two men were discovered

approximately three hours later in the DJ booth of the lounge area.

Ryan arrived at the fire scene shortly after the fire started.

Firefighters later testified that Ryan, initially in a quiet mood,

began making inquiries about the origin of the fire, and stated that

he hoped they u.d not think it was arson. Ryan became very

agitated when he learned that two firefighters were missing.

Approximately four to five days later, Ryan wrote to his girlfriend,

stating that he did not start any “fires” at the Center. On January

2, 1990, Ryan hired an attorney.

Investigations by the Iowa Fire Marshal’s office and an

electrical engineer ensued. It was revealed that Ryan had the only

key at the time of the fire (the other having been lost in the snow),

the circuit breaker for the fire alarm panel had been turned off, and

the battery backup to the alarm had been disconnected before the

fire. The fire marshal examined the debris and the number,

location, and type of burn patterns, and concluded that the fire was

caused by arson. The fire marshal also concluded that flammable

liquids hed been used and that there were at least six separate areas

of fire origin. An electrical engineer also examined the fire scene

and ruled out electrical cause and origin. Laboratory tests for

flammable liquids, conducted on 26 samples taken from the fire

scene, were negative. However, two experts testified that,

depending upon the characteristics of the flammable liquids used,

the amount of water applied, and the duration of the fire,

flammable liquids can be diluted, can evaporate, or can be totally

consumed by fire. Thus, the presence of flammable liquids is not

always detectable, and the negative test results not always

conclusive.

23a

Ryan testified at trial, and called five expert witnesses in his

behalf. Ryan’s theory of defense was that arcing wires in a cash

register, which he accidentally knocked off of the counter, caused

the fire, which then spread to the other areas of the Center. Ryan

contended that the multiple burn patterns were caused by pieces of

flammabie materials falling from the ceiling and that the fire spread

through the roof. Ryan also offered evidence that the phenomena

of flashover and backdraft caused the unusual fire behavior

witnessed by the firefighters.

On rebuttal, the government’s experts attacked Ryan’s theory

involving the design of the cash register. The experts also testified

that Ryan’s theory of the fire’s spread was inconsistent with known

fire behavior.

Il.

A. Due Process Violation

Officer Larry Garmoe testified at trial about his observations

in the early hours of December 29, 1989. Officer Garmoe noted

the presence of a blue Ford Fairmont at the Center with numerous

containers in the back seat. Officer Garmoe also testified that he

saw Ryan driving the same car several days after the fire. At the

time of his December 29 observations, the presence of the

containers of linseed oil, floor solvents, and motor oil had no

particular significance for Officer Garmoe, so his report simply

notes the license plate number and make of the car. (The report

was Offered at trial as Exhibit AA.) Police records corroborate

Officer Garmoe’s testimony that he requested the dispatcher to run

the license plate number with National Crime Information Center

(NCIC) at the time of his report.

The West Burlington police chief testified that Ford and

Mercury products are similar in appearance, and that colors are

difficult to distinguish at night. There was no testimony that any of

the products seen by Officer Garmoe in the car are flammable

liquids or accelerants.

Exhibit AA was furnished to the defense during pretrial

discovery. The content of Officer Garmoe’s testimony was

provided to the prosecutor only shortly before trial (approximately

- twenty months after the fire), and was not revealed to the defense.

24a

Ryan moved for a mistrial, alleging a violation of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The court reserved its ruling, requesting additional information

from the prosecution and advising the defense that it could proceed

with cross-examination of Officer Garmoe, and that it could recall

Officer Garmoe after all of the requested information had been

provided. The defense vigorously cross-examined Officer Garmoe,

emphasizing the incorrect description of the car, discrepancies in

the time of his observations, the fact that Ryan was not the

registered owner of the car, and that Garmoe had only recently

come forward with this important information. After further

hearing and review of documents on two occasions, the court

denied Ryan’s motion for mistrial, finding that the evidence was

not exculpatory, that disclosure of the evidence during trial negated

any claim of suppression, and that Ryan’s due process rights were

not violated.

Ryan contends that the prosecution’s failure to provide the

substance of Officer Garmoe’s testimony, particularly the

information regarding a blue Ford Fairmont, to the defense pretrial,

requires reversal under Brady v. Maryland, supra. Brady requires

disclosure of all material evidence favorable to the accused,

whether impeachment or exculpatory evidence, in the possession of

the United States. Brady, and its progeny, make clear that

constitutional error is committed only where the omitted evidence

would create a reasonable doubt about guilt that would not

otherwise have existed. A finding of materiality of the evidence is

required.

The evidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different. A “reasonable probability” is a probability

sufficient to undermine confidence in the outcome.

United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383,

87 L.Ed.2d 481 (1985); United States v. Wayne, 903 F.2d 1188,

1192 (8th Cir. 1990). Further, “the availability of other

opportunities to elicit the same information on cross-examination is

sufficient in determining whether a Defendant’s constitutional rights

25a

have been violated.” United States v. Klauer, 856 F.2d 1147, 1149

(8th Cir. 1988) (discussing the confrontation clause).

Ryan’s contentions fail under all elements of the Brady ruling.

Ryan vigorously argues that the evidence was exculpatory and not

incriminating, and that its “concealment” severely prejudiced his

case. (Ryan’s theory of defense included the argument that the

government could present no evidence whatsoever connecting Ryan

to the use or possession of accelerants.) We disagree. The

evidence was not exculpatory, but rather inculpatory, and the

government was under no obligation to reveal it. See United States

v. Carper, 942 F.2d 1298, 1300 n. 1 (8th Cir.), cert. denied, ---

U.S. ----, 112 S.Ct. 614, 116 L.Ed.2d 636 (1991). To the extent

that the evidence included impeachment material, the evidence was

revealed early in the trial, when sufficient time and opportunity

remained to effectively use the damaging information in

cross-examination. United States v. Nelson, 970 F.2d 439 (8th

Cir.1992), citing United States v. Klauer, 856 F.2d 1147 (8th

Cir.1988). Any prejudice caused by the delay was sufficiently

redressed and Ryan’s due process rights were not violated.

We further agree with the district court’s assessment as to

materiality. Earlier disclosure of the evidence would not have

affected the outcome of the trial; it was neither meaningful nor

material evidence.

Ryan makes an additional allegation that Officer Garmoe’s

testimony was so inherently incredible as to constitute incriminating

evidence that the government knew or should have known was

false. This accusation of prosecutorial misconduct is fallacious and

without substantiation. Officer Garmoe’s testimony was certainly

worthy of the vigorous cross-examination it received, particularly

with regard to its timing. The determination of its credibility

remains with the jury.

B. Sixth Amendment Right to Counsel

Ryan testified on direct examination that he retained a lawyer

the day after the fire because he believed that he would be the focus

of the arson investigation. Ryan argues on appeal that the

prosecution’s two subsequent references to that fact were

26a

calculated, repeated efforts to infer Ryan’s guilt based upon his

retention of an attorney, in contravention of the Sixth Amendment.

In the absence of a contemporaneous objection at trial, this

court is limited to a determination of whether the prosecution’s

statements constituted plain error, affecting Ryan’s substantive

rights. Fed. R. Crim. Pro. 52(b). United States v. Frady, 456

U.S. 152, 162-3, 102 S.Ct. 1584, 1591-92, 71 L.Ed.2d 816

(1982); United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct.

391, 392, 80 L.Ed. 555 (1936). We have reviewed the record and

we are not inclined to agree with Ryan’s characterization of it. The

prosecutor did not treat Ryan’s exercise of his right to counsel as

substantive evidence of Ryan’s guilt. Rather, the prosecutor asked

questions of Ryan in a fair response to Ryan’s own testimony on

direct. See United States v. Robinson, 485 U.S. 25, 108 S.Ct.

864, 99 L.Ed.2d 23 (1988) (discussing the right to remain silent).

The prosecution’s statements do not constitute plain error, and no

miscarriage of justice has resulted. United States v. Frady, 456

U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

C. Jury Instructions

1. Jurisdictional Scope of 18 U.S.C. § 844(i)

Title 18 U.S.C. § 844(i) provides:

(i) 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; and if personal injury results to

any person, including any public safety officer

performing duties as a direct or proximate result of

conduct prohibited by this subsection shall be imprisoned

for not more than twenty years or fined not more than

$20,000, or both; and if death results to any person,

including any public safety officer performing duties as a

direct or proximate result of conduct prohibited by this

subsection, shall also be subject to imprisonment for any

27a

term of years, or to the death penalty or to life

imprisonment as provided in section 34 of this title.

(Emphasis supplied.) The district court instructed the jury as

follows:

“Interstate commerce” means trade, or business, or travel

between the states. “Used in an activity affecting

interstate commerce” means to affect in some way trade,

or business, or travel between the states.

If you find from the evidence beyond a reasonable doubt

that, on or about January 1, 1990, the Ryan Fun and

Fitness Center building was owned by Ronald D. Ryan,

a resident of Kansas, and leased by him to Ryan Air

Services, Inc., a Kansas Corporation, then the required

affect on interstate commerce has been proved; or if you

find from the evidence beyond a reasonable doubt that on

January 1, 1990, the Ryan Fun and Fitness Center

building was supplied with natural gas used to heat the

building, and such natural gas was supplied from outside

of the state of Iowa, then the required affect on interstate

commerce has been proved. If you do not so find, then

the required affect on interstate commerce has not been

proved and you must find the defendant not guilty.

Jury Instruction Number 10. Ryan claims that the instruction failed

to properly instruct the jury because neither of the two factual bases

stated by the judge satisfies the statutorily required nexus between

the Center and interstate commerce. More specifically, Ryan

contends that the scope of the required “activity” is restricted to the

commercial function served by the building at the time of the fire.

Ryan’s arguments are cleverly drawn and stated, and his position

is certainly plausible, even inviting, on its face. However, this

narrow approach to section 844(i) ignores legislative history as well

as precedential case law in this circuit and learned comment from

other circuits, and cannot carry the day.

This court, along with others meeting the issue, has

consistently construed the interstate commerce requirement of

section 844(i) very broadly. Relying extensively upon the legislative

history of section 844(i), the Supreme Court, in United States v.

28a

Russell, 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985),

concluded that Congress intended to exercise its full power under

the Commerce Clause. In United States v. Voss, 787 F.2d 393,

397 (8th Cir.), cert. denied, 479 U.S. 888, 107 S.Ct. 286, 93

L..Ed.2d 261 (1986), we stated that Congress intended “to exercise

its fullest, constitutionally permissible jurisdictional reach over

persons attempting to commit arson to property affecting interstate

commerce.” A review of the legislative history makes it apparent

that Congress intended to protect at least all business property.

United States v. Russell, supra; United States v. Mayberry, 896

F.2d 1117 (8th Cir. 1990). In United States v. Voss, supra, we

searched for a de minimis connection, holding that the de minimis

standard is easily, though not always, met.? Subsequent to Voss,

we have applied ever broadening definitions to the statutory

language, “an activity used in interstate commerce”. In United

States v. Mayberry, 896 F.2d at 1120, we required “a showing that

there is indeed some interstate character to the property involved.”

(Logging mill was temporarily closed, but still subject to lease, and

still had electricity supplied to it.) And in United States v. Hermes,

847 F.2d 493, 496-97 (8th Cir.1988) (burned saloon, not in use,

but held out by owner as available for commercial purposes), we

stated that the reference in section 844(i) “has been held to require

merely that the property has some relationship to an activity of

commercial nature.” (Emphasis supplied.) (Citing United States v.

Anrdrini, 685 F.2d 1094 (9th Cir.1982); United States v. Patterson,

792 F.2d 531 (Sth Cir.), cert. denied, 479 U.S. 865, 107 S.Ct.

220, 93 L.Ed.2d 149 (1986).)

Under the preceding definitions, both of the bases used by the

district court to establish the interstate commerce nexus are valid.

Indeed, the receipt and use of natural gas from across state borders

is an activity directly affecting interstate commerce. See United

States v. Mayberry, 896 F.2d at 1119; United States v. Barton, 647

F.2d 224 (2d Cir.), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70

? The showing in Voss, that a corporate property owner purchased

insurance from an in-state carrier, doing business in more than one state,

was held to be an inadequate nexus, as a matter of law.

29a

L.Ed.2d 152 (1981).° In this decision, we join the Seventh Circuit

in its holding in United States v. Zabic, 745 F.2d 464, 470-71, n.

4 (7th Cir.1984). However, we refuse to extend the decision, as

did the Seventh Circuit, to property which is purely private in

nature, such as a privately owned home, used solely for residential

purposes. United States v. Stillwell, 900 F.2d 1104 (7th Cir.1990).

Likewise, ownership of the Center by Ron Ryan, who leased

the center to Ryan Air Services, a Kansas corporation solely owned

by Ron Ryan, is an activity affecting interstate commerce. Ryan

relies upon our decision in Voss, supra, and highlights the second

circuit opinion in United States v. Mennuti, 639 F.2d 107 (2d

Cir.1981), in his argument that passive ownership is insufficient.

However, the relationship in this instance demonstrates anything

but passive ownership. The evidence unequivocally showed that

the ownership was interstate in nature, and that Kyan’s father

exercised direct, forceful control and decision making authority

over the business and the disposition of the building itself. The

important federal/state balance which the de minimis standard

guards is maintained with this decision. See United States v. Voss,

787 F.2d at 397.‘

* While we declined to embrace this sweeping view in United States v.

Hansen, 755 F.2d 629, 631, n.4 (8th Cir.), cert. denied, 474 U.S. 834,

106 S. Ct. 105, 88 L.Ed.2d 85 (1985) (discussing the merits of basing

jurisdiction on the use of electricity; holding based upon interstate nature

of transient tenants in building), the Supreme Court has made it clear that

the determination that an activity affects interstate commerce need not

depend upon any actual interstate movement. It suffices that the activity

is “an element of a much broader commercial market”. Russell v. United

States, 471 U.S. at 862, 105 S. Ct. at 2457. See also, United States v.

Voss, 787 F.2d at 398, n.2; United States v. Hermes, 847 F.2d at 496,

n.2.

* We are convinced that the record reflects additional, alternative acts

upon which a showing that the Center was used in activity affecting

interstate commerce could be grounded. Most notably, Ryan had, under

explicit instructions from his father, begun the process of marketing the

Center for resale. An appraisal had been conducted, and real estate agents

communicated with, and the intent to sell the building was stated. The

Center had been recently closed, however, the building was obviously

~

30a

2. Sentencing Enhancement Provisions of 18 U.S.C. §

844 (i)

According to Ryan, 18 U.S.C. § 844(1) creates three distinct

offenses, with graded punishments depending upon the seriousness

of the resulting harm.* Using this argument as a springboard, Ryan

spins off a variety of wrongs committed by the district court in

submitting this case to the jury. The government takes the position

that the penalties enunciated in section 844(i) comprise sentence

enhancement provisions, rather than three separate statutory

offenses. Under this interpretation, all of the essential elements of

the crime were submitted to the jury, and Ryan was properly

convicted.

The courts of appeals have not yet construed this aspect of

section 844(i). However, consideration of the issue under other,

somewhat similar statutes does lend some guidance. See generally

United States v. Rush, 840 F.2d 574 (8th Cir.) (en banc ), cert.

denied, 487 U.S. 1238, 108 S.Ct. 2908, 101 L.Ed.2d 940 (1988),

and United States v. Davis, 801 F.2d 754 (Sth Cir.1986) (both

construing 18 U.S.C.App. § 1202(a), a portion of the Armed

Career Criminal Act of 1984, and reaching differing conclusions).

In determining statutory intent, we must first try to divine the intent

of Congress from the plain language and structure of the statute.

Garrett v. United States, 471 U.S. 773, 779-82, 105 S.Ct. 2407,

2412-13, 85 L.Ed.2d 764, rehg. denied, 473 U.S. 927, 106 S.Ct.

20, 87 L.Ed.2d 698 (1985) (considering the double jeopardy

implications of a prosecution for engaging in a continuing criminal

enterprise, in violation of 21 U.S.C. § 848). Unfortunately, the

plain language does not reveal the solution to our dilemma. In

some respects, section 844(i) does resemble a sentence enhancement

provision. The first portion of the lengthy sentence defines the

intended to be, and was, for all practical purposes, available for

commercial use. See United States v. Hermes, 847 F.2d at 496, and cases

cited therein. However, this additional undisputed evidence of alternative

jurisdictional predicates cannot be considered upon review by the appellate

court. United States v. Voss, 787 F.2d at 397-98.

° See Section C, 1, above, for statutory language.

-e

3la

crime of arson, while the second and third portions seem to do 110

more than single out a subset of arsonists for more severe

punishment. In addition, the use of semicolons, the conjunctive

“and”, and the lack of clear division into separate sections suggests

treatment of the contents as a single offense. See United States v.

Rush, 840 F.2d at 577; United States v. Hawkins, 811 F.2d 210,

218-19 (3d Cir.1987). Most importantly, a discrete offense is not

indicated. Section 844(i) clearly predicates punishment upon

conviction of the underlying crime; the latter sections of the statute

could not stand alone, independent of the arson offense. See

United States v. Rush, 840 F.2d at 577; United States v. Davis, 801

F.2d at 756.

On the other hand, section 844(i) is not free from ambiguity

in that it lacks some of the common indicia of sentencing

enhancement provisions. There is no explicit reference to

conviction of the underlying offense, and while the penalty for

resulting personal injury is a simple multiplier of the arson penalty

($10,000 to $20,000 and ten years to twenty years imprisonment),

the penalty proscribed for resulting death is potentially infinitely

more severe, and is left to the discretion of the jury (in the case of

life imprisonment or death) or to the judge. Further, neither a

procedure for sentence hearing, nor a title identifying the

sentencing enhancement provisions appears in the Statutory

language. See United States v. Davis, 801 F.2d at 755-56.

While it is our conclusion that the above considerations

militate in favor of interpreting section 844(i) as a sentencing

enhancement provision, the plain language is not conclusive. For

this reason, and because the import of any statute allowing the

death penalty must be cautiously divined, we turn for guidance to

the legislative history of section 844(i). We have extensively

reviewed the Congressional Record regarding the provisions of the

Organized Crime Control Act of 1970 (now referred to as the

Comprehensive Crime Control Act), and its 1982 and 1984

amend:aents. Developed at a time of great civil unrest®, this

* Bombings during a sixteen month period in 1969-1970 numbered in

excess of 4,500, and included numerous federal buildings, with federal

officers and employees as the targets. 116 Cong.Rec. 35298 (1970).

32a

federal legislation was originally designed to govern only

“explosive(s)” (Pub. L. 91-452). In 1982 the word “fire” was

added (Pub.L. 97-298) to ensure that the section could be used in

all federal arson cases, especially those arsons caused by gasoline.

See 1982 U.S. Code Cong. & Admin. News, p. 2631. The 1970

legislation was seen by Congress as a “tough” measure, “needed

*** to deal effectively with the conspiratorial groups who are so

insane as to use explosives and incendiary devices.” 116

Cong.Rec. 35298 (1970). The language now in question was part

of the original legislation and, indeed, remains virtually unchanged

since its passage in 1970.’ The 1970 Congressional Record

indicates that section 844 had, at its inception, two distinct facets.

The first portion was to provide a regulatory framework for

manufacturers, dealers, and users of explosives. The second facet

made “bombings” a federal offense subject to stringent sanctions,

including the death penalty. The Congressional Record reveals that

the latter portion of section 844 was consistently referred to as a

“proposal to punish,” and is discussed solely in terms of “strict and

substantial penalties” and “sanctions” to be imposed. 116 Cong.

Rec. 35299 (1970).

The 1984 legislative history evidences the same concern with

sentencing enhancement. Senate Report No. 98-225 at 4, U.S.

Code Cong. & Admin. News 1984, p. 3182, sets out the text of the

report of the Senate Committee on the Judiciary. Senator

Thurmond’s report, recommending proposed comprehensive

reforms and improvements in the federal criminal laws, is most

enlightening. The report on the section now codified as 18 U.S.C.

§ 844(i), refers throughout to “enhanced penalty provisions” and

“enhanced punishments.”

All of these subsections contain enhanced penalty

provisions that apply if personal injury or death results

that represent a substantial increase over the ten years of

7 In 1984, Pub.L. 98-473 substituted more specific, explanatory

language for the phrases “personal injury results” and “death results” in

response to a federal district court decision holding that the provisions did

not apply to firefighters. See 1984 U.S. Code Cong. & Admin. News,

p. 3507.

33a

imprisonment and $10,000 fine authorized as the

maximum punishment for their violation if no injury or

death results. On their face, these enhanced penalty

provisions would appear to apply to the death or injury of

a fireman or police officer who responded to an arson or

other offense committed in violation of subsection (d), (f),

or (i). However, a Federal district court has recently

held that the enhanced penalty previsions did not apply to

injuries to or deaths of firefighters that occurred while

fighting an arson fire set in violation of subsection 844(i).

Part N is designed to clarify congressional intent in this

regard to ensure that the enhanced punishment provisions

of subsections (d), (f), and (i) apply if personal injury or

death results to any person including a fireman,

policeman or other public safety officer, because of a

violation.

KK

As discussed, the purpose of these amendments is to make

clear the congressional intent that any person who violates one

of the subsections in a manner that results in a public safety

officer’s injury or death is subject to the enhanced punishments

provided in the subsections.

1984 U.S. Code Cong. & Admin. News, pp. 3507-08 (footnotes

omitted). This language is free from ambiguity. Our examination

of the origins of the law and the intentions of its drafters leads

inescapably to the conclusion that Congress’s concern was with the

Stringent and severe treatment of those who violate the

explosives/arson law. Congress meant to deal with arsonists

severely, not to overlay a myriad of elements of proof onto the

plain statutory requirements, as Ryan suggests. We hold that 18

U.S.C. § 844(i) is a sentencing enhancement provision, not a

separate and distinct offense with distinct, heightened elements of

proof.

3. Foreseeability and Public Safety Officers

The remainder of Ryan’s claims of error in the jury

instructions are largely resolved by the finding above, that the latier

portions of section 844(i) are sentencing enhancement provisions.

34a

The findings necessary to impose the enhanced penalty were within

the province of the judge, not the jury. Suffice it to say that,

contrary to Ryan’s protestations, he was not convicted absent jury

findings on all critical elements of the crime. The jury, via special

verdict interrogatories, made extensive findings. We do however,

comment briefly upon several of Ryan’s arguments in the interest

of resolving any recurring questions.

First, Ryan argues that the statutory language, “as a direct or

proximate result of conduct prohibited by this subsection ***”

engrafts upon the statute the common law standard of negligence.

In other words, Ryan would require a specific finding that the

deaths of the two firefighters were foreseeable to Ryan when he set

the fire. Further, Ryan alleges that, in this case, only cause in fact

was considered in the determination of the relationship between his

conduct and the two deaths. We hold that the use of the term

“proximate cause” in this criminal statute does not require a distinct

finding of foreseeability.

To be sure, the report of the Senate Committee on the

Judiciary addresses proximate cause and sets forth an array of

examples where the consequences of an act of arson are

“reasonably foreseeable,” including, “a response by firemen and

others.” U.S. Code Cong. & Admin. News 1984, p. 3508. This

comment, however, does not so dramatically alter the elements of

the crime as Ryan suggests. Proximate cause is commonly defined

as:

That which, in a natural and continuous sequence,

unbroken by any efficient intervening cause, produces

injury, and without which the result would not have

-occurred***. An injury or damage is proximately cause

by an act, or a failure to act, whenever it appears from

the evidence in the case, that the act or omission played

a substantial part in bringing about or actually causing the

injury or damage; and that the injury or damage was

either a direct result or a reasonably probable

consequence of the act or omission.

Black’s Law Dictionary (6th ed. 1990). The court in this instance

submitted the following instruction to the jury:

35a

The deaths of William Klein and Joseph Wilt resulted

from defendant’s conduct of setting the fire if his conduct

was a proximate cause of their deaths. Defendant’s

conduct was a “proximate cause” of their deaths if it was

a substantial factor in causing them to die on January 1,

1990, and they would not have died then except for

defendant’s conduct.

“Substantial” means that defendant’s conduct has such an

effect in producing the deaths as to lead a reasonable

person to regard his conduct as a cause of the deaths.

An event, such as the deaths of William Klein and Joseph

Wilt, may have more than one proximate cause. The

government need not prove that defendant’s conduct was

the only proximate cause of their deaths; it needs to

prove only that defendant’s conduct was a proximate

cause of their deaths.

Jury Instruction Number 13.

We find the legal principle of proximate cause embodied in

section 844(i) to have been adequately presented to the jury. When

Congress provided that death proximately resulting from arson

could be punishable by death or life imprisonment, we must

consider it to have been fully cognizable of the principles of legal

causation. Cf United States v. Guillette, 547 F.2d 743 (2d Cir.

1976). There is no intent by Congress on the face of the statute to

engraft the elements of common law negligence onto the arson

Statute, thus frustrating the purpose of the statute with artificial

restrictions.

Ryan admits that one could conclude from the evidence that his

conduct proximately caused the deceased men to engage in their

duties as firefighters, but argues that the deaths were not reasonably

foreseeable because the men left their water hoses while inside the

building.* (The government’s evidence suggests that an intense

wail of fire which did not respond to water, sweeping across the

interior of the building where the men were located, caused the

* Appellant’s brief at 32.

36a

men to panic.) Ryan’s suggestion is patently absurd and even

insulting. The variation in this instance in the result intended by

Ryan, and the result actually achieved by Ryan, in setting the fire

is not so tenuous that is would be unfair to hold him criminally

responsible for the actual result — death.

Second, Ryan quibbles with the court’s use of the words

“voluntary firefighters” instead of the statutory language, “public

safety officers”. A legal question for the judge, we find no error

in the court’s decision that the statutory term includes voluntary

firefighters. The legislative history supports this conclusion. It is

clear that the 1984 amendments were intended to apply to

firefighters. U.S. Code Cong. & Admin. News 1984, pp. 3507-8.

In addition, “public safety officers” is defined at 42 U.S.C.

§ 3796b(7) to include firefighters, with or without compensation.

Furthermore, section 844 refers to the death of “amy person,

including public safety officers” (emphasis supplied). For purposes

of conviction, Ryan’s argument is of no import whatsoever.

4. Use of Special Interrogatories

The district court, faced with the parties’ arguments regarding

the issue of statutory construction, did not make a specific finding

on the issue. Rather, the court wisely and skillfully structured the

jury instructions, verdict form, and special interrogatories’ in such

a fashion that, regardless of our ultimate holding on the issue, we

would have the benefit of all of the jury’s findings. The jury

considered and made findings as to each and every element of

section 844(i), using the standard “beyond a reasonable doubt.”

Ryan’s assertion that the use of special interrogatories is

generally forbidden, and that these particular interrogatories crafted

by the district court avoided a verdict by the jury on the issue of

homicide, is completely misplaced. The courts have indeed been

critical of special interrogatories in criminal cases. United States

v. Desmond, 670 F.2d 414 (3d Cir.1982); United States v. Spock,

416 F.2d 165 (ist Cir.1969); Gray v. United States, 174 F.2d 919

(8th Cir.), cert. denied, 338 U.S. 848, 70 S.Ct. 90, 94 L.Ed. 519

* See Appendix A for verdict form and special interrogatories.

37a

(1949). The overriding concern, eloquently addressed in several of

these cases, is one of judicial control.

There is no easier way to reach, and perhaps force, a

verdict of guilty than to approach it step by step. A

juror, wishing to acquit, may be formally catechized. By

a progression of questions each of which seems to require

an answer unfavorable to the defendant, a reluctant juror

may be led to vote for a conviction which, in the large,

he would have resisted. The result may be accomplished

by a majority of the jury, but the course has been

initiated by the judge, and directed by him through the

frame of the questions.

United States v. Spock, 416 F.2d at 182. However, special

interrogatories may be appropriately and effectively used in

particular situations without abridging the concerns expressed over

their use generally. See, e.g., United States v. Owens, 904 F.2d

411 (8th Cir.1990); United States v. Aguilar, 883 F.2d 662 (9th

Cir.1989), cert. denied, 498 U.S. 1046, 111 S.Ct. 751, 112

L.Ed.2d 771 (1991)."°

Here, the questions posed by the judge in the interest of

clarity, completeness, and avoidance of the retrial of a lengthy

case, evidence no elements of control or restriction by the court.

The judge did not infringe upon the jury’s power to freely

deliberate, did not require the jury to justify its actions, and did not

ask “why” the jury arrived at its decision. Nor did the court

challenge the jury’s power to ignore the court’s instructions if it so

desired, require the jury to set aside its most valuable asset as fact

finder (collective common sense), or direct the jury, intentionally

Or unintentionally, to follow a course initiated by the court. We

recognize that the use of special verdict forms, closely crafted and

carefully scrutinized, may be appropriate for some limited

purposes. This case, in which the criminal statute was as yet

undefined, is just such an instance.

'© See also Kawakita v. United States, 343 U.S. 717, 72 S. Ct. 950,

96 L.Ed. 1249 (1952); United States v. Smith, 938 F.2d 69 (7th Cir.),

cert. denied, -- U.S. ----, 112 S. Ct. 254, 116 L.Ed.2d 208 (1991);

United States v. Pforzheimer, 826 F.2d 200 (2d Cir. 1983).

38a

The remainder of Ryan’s argument on this subject elevates

form over substance. The fact that the jury did not make its

finding on a form entitled “General Verdict” makes the findings no

less clear. The jury inescapably found beyond a reasonable doubt

that Ryan maliciously destroyed a building by fire, and that the

deaths of the two voluntary firefighters resulted. The form of the

verdict and the jury instructions, taken as a whole, were more than

adequate and do not abridge Ryan’s rights to a fair trial or to due

process.

D. Federal Arson Statute

Throughout Ryan’s arguments and dressed in several different

guises is the assertion that Ryan was unjustly convicted of murder.

Contrary to Ryan’s arguments, 18 U.S.C. § 844(i) is not the

functional equivalent of murder in the first degree. The court and

the jury made the exact determinations required by the statute, no

more and no less. Section 844(i) is an arson statute, with severe

repercussions for the arsonist whose actions result in the death of

another individual. Congress intended that such reckless behavior

result in harsh punishment. Congress’s intentions may not be

subjugated to the finesse of legal arguments, attempting to overlay

the requirements of murder on the federal arson statute.

E. Sentencing

1. Application of the Most Analogous Guideline

The court’s starting point in computing Ryan’s sentence under

the United States Sentencing Commission, Guidelines Manual

(U.S.S.G.) was § 2K1.4(c)(1}, which states:

If death resulted, or the offense was intended to cause

death or serious bodily injury, apply the most analogous

guideline from Chapter Two, Part A (Offenses Against

the Person) if the resulting offense level is greater than

that determined above.

Finding that Ryan’s conduct was reckless and wanton, and grossly

deviated from a reasonable standard of care, the court then

determined that the most analogous guideline is U.S.S.G. § 2A1.1,

First Degree Murder, with a base offense level of 43. However,

in a further finding that Ryan did not cause the two deaths

39a

intentionally or knowingly, the court departed downward to a base

offense level of 38. (The base offense level for second degree

murder is 33. The court chose an offense level at the mid-point

between the two murder offenses.) Adding a two point

enhancement for the obstruction of justice, the court assigned Ryan

a base offense level of 40, and sentenced him to 328 months of

imprisonment. (The sentencing range at this offense level is 292

months to 365 months.)

The district court’s findings and conclusions are fully

supported by the facts and the law. Recognizing that “the crux of

the issue is really whether there was malice aforethought,” S.Tr.

38, the court articulated thoughtful and complete findings

supporting its decision."

And I might point out, we are not dealing with a building

that was set afire willfully that was located out in the

middle of a remote rural area with no people living

around it. Certainly somebody torching such a building

in such a location is confronted with a different situation.

He has every reason to believe that probably the building

would be burned to ashes before anybody would even

know it.

Here we are dealing with a fairly large commercial

structure located in an urban area, in an urban area where

it was obviously going to be discovered quickly by

somebody driving by, as it was, long before it was totally

destroyed, and that a fire department would be responding

to the fire. We are also dealing with a situation, as Miss

Reade described, where the fire was well-fueled and

started, according to the testimony of Government

'' In the Eighth Circuit, malice aforethought may be established by

evidence of conduct which is reckless and wanton and a gross deviation

from a reasonable standard of care, or of such a nature that the fact finder

is warranted in inferring that the defendant was aware of a serious risk of

death or serious bodily harm. United States v. Johnson, 879 F.2d 331,

334 (8th Cir.1989); United States v. Black Elk, 579 F.2d 49, 51 (8th

Cir. 1978).

40a

witnesses who persuaded the jurors, in different places in

the building.

Under all of the facts in evidence, I do find by a

preponderance of the evidence and conclude that the

conduct of the defendant was reckless and wanton; it was

conduct that grossly deviated from a reasonable standard

of care, and it certainly was of such a nature as to

warrant the inference that I make that the defendant was

aware of serious risk of death or serious bodily harm

resulting. And according to that, I conclude that the most

analogous offense under chapter 2, part A is first-degree

murder with a base offense level of 43.

S.Tr. 40-41.

The act of arson is, by its very nature, an act of violence, an

inherently dangerous act which involves the real risk of injury or

death. It does not require any stretch of the imagination to

recognize that, in the course of fighting a fire, death may result.

_ Congress recognized arson as an inherently dangerous and shocking

felony when it included it as a felony murder in the definition of

first degree murder. 18 U.S.C. § 1111(a). Likewise, the

Sentencing Commission recognized the need for appropriately

severe sanctions by directing the court to determine the most

analogous crime, and by instructing that guideline § 2A1.1 “also

applies when death results from the commission of certain

felonies.” U.S.S.G. § 2A1.1, comment. (n.1).

In departing downward from level 43 to level 38, the district

court again followed the guidance of the Sentencing Commission.

Finding that Ryan did not cause the deaths intentionally or

knowingly, the court considered Ryan’s state of mind, the degree

of risk inherent in the conduct, and the nature of the underlying

offense conduct in making its determination. U.S.S.G. § 2A1.1,

comment. (n.1).'

'2 Note that the Commission does not envision any departure below that

specified for second degree murder. U.S.S.G. § 2A1.1, comment. (a. 1).

4la

Yet again Ryan argues that the court convicted him of criminal

homicide without proving the elements of criminal homicide.

However, what Ryan refers to as a “shocking misapplication” of

the sentencing guidelines, is simply the court’s straightforward and

correct application of the law as it is set forth. While Ryan argues

that there is no homicide offense analogous to Ryan’s offense and

thus, no higher offense level whatsoever may be assigned, we agree

with the determination of the district court that the offenses of first

and second degree murder are comparable, though certainly not

identical. The judge carefully and conservativei;; chose an offense

level at midpoint between the two, recognizing that “malice

aforethought” is an element of both of the offenses. What

Statement could the judge have made which would have more

clearly supported his actions? Ryan’s protestations to the contrary,

the facts do support the judge’s findings.

2. Obstruction of Justice

Ryan also challenges his two level sentencing enhancement for

obstruction of justice under U.S.S.G. § 3C1.1. Ryan argues that

the court must make particularized findings that he perjured himself

in testifying that he was innocent. In addition, Ryan urges that the

inquiry is unconstitutional in that it places an intolerable burden on

his right to testify.

This court has held that, while the enhancement may not be

based solely upon Ryan’s failure to convince the jury of his

innocence, it may be “based on the experienced trial judge’s

express finding, based on the judge’s personal observations, that

[the defendant] lied to the jury.” United States v. Ogbeifun, 949

F.2d 1013, 1014 (8th Cir.1991). Thus, the analysis does not call

for the specific findings and particular intonations urged by Ryan,

but does call for an independent evaluation and determination by

the court that Ryan’s testimony was false. See United States v.

Willis, 940 F.2d 1136 (8th Cir.1991).

In this instance, the government urged the enhancement based

upon two excerpts of trial testimony wherein Ryan denied setting

fires and denied using accelerants at the center. The court noted

42a

that perjury is specifically contemplated as an obstruction of justice

under the sentencing guidelines,’ and further stated:

In this case, the jury did find the defendant willfully

started the fire. The defendant very clearly denied that he

started the fire. I have no quarrel with the jury verdict.

*** Under the totality of the facts and the testimony here,

I find that the defendant, in fact, did commit perjury

during the trial, and he will be subjected to a two-point

increase in the offense level under guideline 3C1.1.

S.Tr. 21-22.

The question of Ryan’s perjury lies within the sound discretion

of the district court. We give due regard to that court’s

observations and judgments of credibility in determining whether

Ryan perjured himself at trial. United States v. Benson, 961 F.2d

707 (8th Cir.1992). There is no question that the enhancement in

this case was based upon the court’s independent and express

finding that Ryan lied to the jury.

The constitutional issues raised by Ryan have been previously

addressed by this court. United States v. Ogbeifun, 949 F.2d 1013

(8th Cir.1991). Ryan’s arguments add no new dimension to the

issue and need not be considered further.

F. Insufficiency of the Evidence

Ryan’s final argument is that the evidence presented by the

government was insufficient to establish his guilt. In considering

Ryan’s motion for judgment of acquittal, the court viewed the

evidence in the light most favorable to the government and upheld

the conviction. We have frequently reiterated the standard by

which the evidence is to be judged. To wit, the conviction should

be upheld if a reasonable jury could have found the defendant

guilty beyond a reasonable doubt. United States v. Haren, 952

F.2d 190, 194 (8th Cir.1991) (“(where) there is substantial

evidence justifying an inference of guilt as found irrespective of any

countervailing testimony that may be introduced.” United States v.

Rodriguez, 812 F.2d 414, 416 (8th Cir. 1987)).

> U.S.S.G. § 3C1.1, comment. (3(b)).

43a

We are in agreement with the district court. The substantial,

albeit largely circumstantial, evidence in this case is not in any

instance insufficient. We refuse to invade the province of the jury

and of the court in their weil-considered and supported decisions.

Ii.

For the reasons stated above, the judgment of the district court

is affirmed.

RICHARD S. ARNOLD, Chief Judge, concurring in part and

dissenting in part.

I concur in Parts II.A, B, C.3, C.4, D, and E of the Court’s

opinion. I also concur in the result reached in part C.2, but dissent

with respect to its holding that the increased sentencing provisions

of 18 U.S.C. § 844(i) define a sentencing factor and not an element

of the offense. I respectfully dissent from the Court’s holding in

part C.1 that the interstate-commerce requirement of § 844(i) is

satisfied by the mere showing that the building either was supplied

with natural gas or was owned by an out-of-state resident. The

statute’s language, Supreme Court precedent, and precedent of this

Court make clear that the structure in question must either be used

in interstate commerce or in an activity affecting interstate

commerce. Since there was no showing that the defunct Ryan Fun

and Fitness Center was engaged in an activity affecting interstate

commerce at the time it was burned, I dissent.

I.

Today the Court concludes that the portion of 18 U.S.C.

§ 844(i) that begins, “and if death results to any person ***,” is a

sentencing factor and not an element of the offense. I cannot agree

with this conclusion.

The first step in determining the import of a statute is to look

at the language of the statute itself. United States v. Rush, 840

F.2d 574 (8th Cir.) (en banc), cert. denied, 487 U.S. 1238, 108

S.Ct. 2908, 101 L.Ed.2d 940 (1988). The statute reads in

pertinent part as follows:

44a

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 ***; and if death results to any

person, including any public safety officer performing

duties as a direct or proximate result of conduct

prohibited by this subsection, shall also be subject to

imprisonment for any terms of years, or to the death

penalty or to life imprisonment***.

As the Court has recognized, Section 844(i) is far from clear.

It lacks the traditional indicia of a sentence enhancement; as the

Court notes, the increase in punishment upon a finding that a death

has occurred is infinitely more severe, and that increase is not a

multiple or a derivative of the original sentence (either of which

might indicate Congress intended a sentence enhancement). The

Court nonetheless concludes, in the face of the ambiguity in the

statute, that its language “militates” in favor of interpreting the “if

death results” provision to be a sentencing factor. This conclusion

is inconsistent with the settled rule that ambiguities in criminal

statutes are to be resolved in favor of the defendant, under the Rule

of Lenity. Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct.

1056, 28 L.Ed.2d 493 (1971).

The Court attempts to support its conclusion that the “if death

results” provision is a sentencing factor by pointing to legislative

history. This reliance is misplaced. The Court refers to the

remarks of a single Congressman, Representative Schadeberg of

Wisconsin, as showing that Section 844(i) was “consistently”

referred to as a “proposal to punish.” In context, the

Congressman, who was neither the committee chairman nor the

ranking minority member, was merely attempting to convince his

colleagues that Section 844(a)-(i) was an important part of the

Organized Crime Act as a whole. All discussion of penalty found

in the legislative record was designed only to convince fellow

members that federalization of certain classes of bombings was

necessary to bring the perpetrators to justice. 116 Cong.Rec.

35298-99 (1970). The Court’s reference to Senator Thurmond’s

4Sa

1984 Report for the Senate Judiciary Committee is similarly

unavailing. Once again, the Court has chosen a single sentence out

of context to demonstrate that the “if death results” provision is a

punishment provision; the Senate Report was discussing

punishment in the context of including firefighters and police within

the definition of “any person.” In neither case does the legislative

history address whether the “if death results” language was

intended to be an element of the offense or just a sentencing factor.

Finally, the legislative history is not as clear as the Court suggests.

The House Judiciary Committee Report on the proposal that

became the Organized Crime Act states in its reference to Section

844(i): “Existing penalties are increased and the death penalty is

extended to new offenses added by the title.” H.R.Rep. No.

91-1549, 91st Cong., 2d. Sess. 5 (1970), 1970 U.S. Code Cong.

& Admin. News 4011 (emphasis added).

Ultimately, the legislative history is far from clear, and, as

Chief Justice Rehnquist stated in Regan v. Wald, 468 U.S. 222,

104 $.Ct. 3026, 82 L.Ed.2d 171 (1984), the statements of

individual Congressmen, “unless very precisely directed to the

intended meaning of particular words in a statute,” cannot take

precedence over the statute’s own language. Jd., at 237, 104 S.Ct.

at 3055.a

Since Section 844(i) is ambiguous as to whether the “if death

results” provision is a sentencing factor or an element of the

offense, and since the legislative history does not directly speak to

and clarify this question, the Rule of Lenity requires this Court to

interpret the statute in favor of the defendant. Therefore, the “if

death results provision” defines an element of the offense. I

nonetheless concur in the Court’s rejection of defendant’s

arguments based on the failure to charge the jury that it must find

that death resulted as an element of the offense, because any error

on that count was cured by the District Court’s submission of the

question to the jury on special interrogatories. The jury found

beyond a reasonable doubt that the deaths of Firefighters Wilt and

Klein resulted as a consequence of the arson; therefore, the jury in

fact passed on all the elements of the crime.

46a

Il.

The Court today holds that the mere receipt of natural gas or

out-of- state ownership of property is an activity sufficient upon

which to base jurisdiction under 18 U.S.C. § 844(i). The Court

grounds its holding on language from Russell v. United States, 471

U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985), and United

States v. Voss, 787 F.2d 393 (8th Cir.), cert. denied, 479 U.S.

888, 107 S.Ct. 286, 93 L.Ed.2d 261 (1986). The Court correctly

states that these cases stand for the proposition that Section 844(i)

is to be read broadly, and that Congress intended to exercise its full

Commerce Clause power to protect commercial property. Russell,

471 U.S. at 860, 105 S.Ct. at 2456; Voss, 393 F.2d at 397.

However, the Court bends this precedent out of shape to conclude

that mere receipt of natural gas or out-of-state ownership, without

any additional showing as to the use of the structure itself, satisfies

the activity requirement of Section 844(i).

In Russell, the Supreme Court did say that the legislative

history of Section 844(i) “suggests” that Congress intended to

protect at least all business property, as this Court states;

nonetheless, the Supreme Court also pointed out that “[b]y its

terms, however, the statute only applies to property that is ‘used’

in an ‘activity’ that affects interstate commerce.” Russell, 471 U.S.

at 862, 105 S.Ct. at 2457 (emphasis added); see also Voss, 787

F.2d at 397 (the use of the building itself must have a de minimis

connection to interstate commerce). In other words, there must be

a showing that there is “some interstate character to the property

involved.” United States v. Mayberry, 896 F.2d 1117 (8th

Cir. 1990).

Ryan Fun and Fitness Center was no longer a going concern

at the time it was burned. Had the business been in operation, then

its use of natural gas or the fact of out-of-state ownership might be

relevant to the inquiry of whether its use affected interstate

commerce. Nonetheless, an inquiry into its use would still be

necessary for Section 844(i) to apply. The Court relies on several

cases involving businesses that had either been temporarily closed

or were no longer in use to justify its holding; however, in each

of these cases the business was still operational. United States v.

Mayberry, 896 F.2d at 1120 (logging mill temporarily closed due

47a

to lumber shortage but ready to operate once lumber was received);

United States v. Hansen, 755 F.2d 629 (8th Cir.), cert. denied, 474

U.S. 834, 106 S.Ct. 105, 88 L.Ed.2d 85 (1985) (apartment

building held to be used in interstate commerce);' United States v.

Hermes, 847 F.2d 493 (8th Cir. 1988), (saloon was no longer in use

but was held out by its owner as available for lease for commercial

purposes).> When the Ryan Fun and Fitness Center closed, it

closed permanently and was no longer available for commercial

use. Ryan had not placed the building up for sale, nor was he

attempting to lease it to anyone out of state. Therefore, the

building’s receipt of natural gas, without more, is insufficient to

establish the necessary use in an activity that affects interstate

commerce. Similarly, out-of-state ownership alone does not

establish that the building’s use at the time it was burned had an

effect on interstate commerce. The proper inquiry is into the

function of the building itself, and then a determination of whether

that function affects interstate commerce.

Further, the Court’s holding disturbs the balance between the

state and federal governments by allowing federal prosecutors to

bring almost any arson prosecution — traditionally a state crime —

without a clear expression of Congress’s intent to do so. Arson is

a traditional common-law state crime; therefore, any federalization

of arson laws must be clearly stated. United States v. Bass, 404

' In Russell, the Supreme Court stated that the rental of an apartment

building satisfied the requirement of Section 844(i) that the building be

used in an activity affecting interstate commerce. 471 U.S. at 862, 105

S.Ct. at 2457.

* The Court’s reliance on the Seventh Circuit decision in United States

v. Zabic, 745 F.2d 464 (1984), is also misplaced. That case, decided

before Russell, held that the receipt of natural gas by a 43-unit apartment

building “used exclusively for commercial purposes” provided the

necessary effect on interstate commerce. But once again, the primary

inquiry into the building’s use had already been made, and it was

determined that the building was currently in use as a commercial

enterprise. It was that use that then affected interstate commerce. This

Court today omits the necessary initial inquiry into whether the building

was used in a way that affects interstate commerce.

48a

U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1981) (“unless

Congress conveys its purpose clearly, it will not be deemed to have

significantly changed the federal-state balance” in the prosecution

of crimes) Taken to its logical conclusion, the Court’s holding

would alluw the federal courts to reach almost all arson cases,

regardless of whether the structure in question was business or

residential. The Court’s refusal to acknowledge this fact

demonstrates the fundamental flaw in its reasoning. Without an

inquiry into the use of the structure, arson committed against any

building, even a private home, would be a federal crime, as the

Seventh Circuit recognized in United States v. Stillwell, 900 F.2d

1104 (7th Cir.), cert. denied, 498 U.S. 838, 111 S.Ct. 111, 112

L.Ed.2d 81 (1990). Congress may have the power under the

Commerce Clause to reach arson committed against a private home;

however, it has not chosen to exercise that power.’ I therefore

respectfully dissent, and would remand this case for a new trial

with proper instructions on the issue of interstate commerce.

APPENDIX

COUNT 1

Form No. 1

We, the jury, find the defendant, Dale Lynn Ryan, guilty of

malicious destruction of a building by fire as charged in Count 1 of

the indictment.

(s) Thomas R. Johnston

FOREPERSON

> This conclusion is in accord with other circuits that have addressed

the issue. See United States v. Mennuti, 639 F.2d 107 (2d Cir.1981)

(because Congress did not exercise its commerce power to include private

residences, it is limited by the language of Section 844(i)); United States

v. Monholland, 607 F.2d 1311, 1316 (10th Cir.1979) (there is no

indication in the statute that Congress, although it intended to have the

Statute broadly construed, intended everybody and everything to be

included).

49a

Form No. 2

We, the jury, find the defendant, Dale Lynn Ryan, not guilty

of malicious destruction of a building by fire as charged in Count

1 of the indictment.

FOREPERSON

QUESTIONS

(To be answered only if you have found the defendant guilty.)

(1) Do you find that the government has proved beyond a

reasonable doubt that defendant’s conduct of setting the fire resulted

in the death of William Klein?

Yes X No__

(2) Do you find that the government has proved beyond a

reasonable doubt that defendant’s conduct of setting the fire resulted

in the death of Joseph Wilt?

Yes X No__

(3) Do you find that the government has proved beyond a

reasonable doubt that at the time of his death, William Klein was

a volunteer firefighter in the West Burlington Volunteer Fire

Department?

Yes X No__

(4) Do you find that the government has proved beyond a

reasonable doubt that at the time of his death, William Klein was

performing his duties as a volunteer firefighter as a direct or

proximate result of defendant’s conduct of setting the fire?

Yes X No__

(5) Do you find that the government has proved beyond a

reasonable doubt that at the time of his death, Joseph Wilt was a

volunteer firefighter in the West Burlington Volunteer Fire

Department?

Yes X No__

50a

(6) Do you find that the government has proved beyond a

reasonable doubt that at the time of his death, Joseph Wilt was

performing his duties as a volunteer firefighter as a direct or

proximate result of defendant’s conduct of setting the fire?

Yes X No__

(s) Thomas R. Johnston

FOREPERSON