Belflower v. United States

129 F.3d 1459

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 3, 1997
• Docket: 95-8142
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 95-8142 ________________________

D. C. Docket Nos. CV 94-276-3-MAC-WDO CR 91-29-MAC-WDO

JAMES ALTON BELFLOWER,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court for the Middle District of Georgia _________________________

(December 3, 1997)

Before BLACK, Circuit Judge, HILL and HENDERSON, Senior Circuit Judges.

PER CURIAM: Appellant James Alton Belflower appeals the district court's denial of his

motion under 28 U.S.C. § 2255, to vacate, set aside, or correct sentence. Belflower

asserts, inter alia, that the Government failed to establish the interstate commerce

nexus required for federal jurisdiction under the federal arson statute, 18 U.S.C.

§ 844(i). We conclude that the Government satisfied this jurisdictional prerequisite

and therefore affirm.

I. BACKGROUND

On Sunday, February 24, 1991, deputy sheriff John Thrower of the Bleckley

County Sheriff's Department prepared to leave home for patrol duty. Deputy

Thrower went to his car, a 1989 Crown Victoria owned by the Sheriff's Department,

cleaned it, placed sheriff's decals on its sides, and mounted his radar unit. At

approximately 12:30 p.m., Deputy Thrower entered his car and turned the ignition

key. When the key hit the first accessory mode, a bomb attached to the vehicle

exploded, lifting the car off the ground and causing extensive damage to the vehicle.

Agents from the Bureau of Alcohol, Tobacco & Firearms (ATF) arrived at

the scene and secured evidence from the site. Knowing that several confrontations

had occurred between Thrower and Belflower prior to the bombing, ATF agents

also went to Belflower's residence to question him. Those agents discovered

incriminating evidence outside Belflower's home. Tests revealed that several items

2 found at Belflower's residence were consistent with the evidence gathered at the

bomb scene. At trial, the Government presented additional evidence and testimony

which implicated Belflower.

On November 19, 1991, a jury found Belflower guilty on all counts of a four-

count indictment charging him with the following: (1) maliciously damaging and

destroying and attempting to destroy by means of an explosive, a vehicle used in

interstate commerce, in violation of 18 U.S.C. § 844(i) (Count I); (2) using a

destructive device during and in relation to a crime of violence, in violation of 18

U.S.C. § 924(c)(1) (Count II); (3) receiving and possessing a destructive device that

was not registered with the National Firearms Registration and Transfer Record, in

violation of 26 U.S.C. § 5861(d) (Count III); and (4) manufacturing an explosive

pipe bomb, in violation of 26 U.S.C. § 5861(f) (Count IV).

On March 5, 1992, Belflower was sentenced to imprisonment.1 Judgment

was entered on March 9, 1992. Belflower filed a notice of appeal on March 13,

1992, and this Court affirmed Belflower's conviction on October 22, 1993.

1 Belflower was sentenced to 121 months' imprisonment on Count I, 15 months' imprisonment on Counts III and IV to run concurrently with each other and consecutive to Count I, and 360 months' imprisonment on Count II to run consecutive to Counts I, III, and IV. In addition, the court sentenced him to a five-year term of supervised release and required him to pay the mandatory assessment fee for each count.

3 On June 30, 1994, Belflower filed a pro se Petition for Correction and/or

Modification of Imposed Term of Imprisonment, pursuant to 18 U.S.C. § 3742(f).

The district court construed this petition as a motion to vacate, set aside, or correct

sentence under 28 U.S.C. § 2255. In his petition, Belflower asserted, among other

claims,2 that the trial court lacked jurisdiction because the Government failed to

establish the interstate commerce nexus required by 18 U.S.C. § 844(i).

II. DISCUSSION

Belflower argues that pursuant to United States v. Lopez, 514 U.S. 549, 115

S. Ct. 1624 (1995), and United States v. Denalli, 73 F.3d 328 (11th Cir.), modified,

90 F.3d 444 (11th Cir. 1996), the Government was required to prove that Deputy

Thrower's automobile was used in an activity affecting interstate or foreign

commerce. Belflower further asserts that the Government failed to satisfy this

jurisdictional prerequisite. We disagree.

2 In addition to the jurisdictional claim, Belflower's petition raised the following claims: (1) his sentence resulted from an impermissible pyramiding of penalties for the same offense; (2) he received ineffective assistance of counsel; (3) the evidence admitted at trial was insufficient to sustain a conviction; (4) the court admitted evidence at trial that was obtained as a result of an illegal search and seizure; and (5) prosecutorial misconduct. After carefully considering these claims, we affirm the district court. See 11th Cir. R. 36-1.

4 In Russell v. United States, 471 U.S. 858, 105 S. Ct. 2455 (1985), the Supreme

Court considered the scope of § 844(i)3 in a case involving the attempted arson of

a two-unit apartment building. The Court examined the text of § 844(i) and

concluded that the statute “expresses an intent by Congress to exercise its full power

under the Commerce Clause.” Id. at 859, 105 S. Ct. at 2456. The Russell Court

also considered the legislative history of § 844(i) and noted that “after considering

whether the bill as originally introduced would cover bombings of police stations

or churches, the bill was revised to eliminate the words ‘for business purposes' from

the description of covered property.” Id. at 860-61, 105 S. Ct. at 2456-57 (footnote

omitted). The Court concluded that “the legislative history suggests that Congress

at least intended to protect all business property, as well as some additional property

that might not fit that description, but perhaps not every private home.” Id. at 862,

105 S. Ct. at 2457.

A decade later, the Supreme Court held in United States v. Lopez, 514 U.S.

549, 115 S. Ct. 1624 (1995), that Congress exceeded its Commerce Clause power

in enacting the Gun-Free School Zone Act. After outlining the three broad

3 Section 844(i) provides:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned . . . fined . . . , or both . . . .

5 categories in which Congress may regulate commerce, the Court focused its inquiry

upon “whether the regulated activity ‘substantially affects' interstate commerce.”

Id. at 559, 115 S. Ct. at 1630. The Court concluded that the Gun-Free School Zone

Act failed to satisfy this requirement because the terms of the statute indicated that

it had “nothing to do with ‘commerce' or any sort of economic enterprise.” Id. at

561, 115 S. Ct. at 1630-31.

In the two years since the Supreme Court decided Lopez, this Court has

considered several challenges to federal statutes enacted under Congress's

Commerce Clause power, including the felon-in-possession statute, see United

States v. Chisholm, 105 F.3d 1357 (11th Cir. 1997); United States v. McAllister, 77

F.3d 387 (11th Cir. 1996); the Hobbs Act, see United States v. Castleberry, 116 F.3d

1384 (11th Cir. 1997); and the federal arson statute, see United States v. Chowdhury,

118 F.3d 742 (11th Cir. 1997); United States v. Utter, 97 F.3d 509 (11th Cir. 1996);

United States v. Denalli, 73 F.3d 328 (11th Cir.), modified 90 F.3d 444 (11th Cir.

1996). In none of these cases did this Court determine that the challenged statute

exceeded Congress's Commerce Clause power. In only one case, Denalli, did this

Court find that the government failed to satisfy the interstate commerce nexus

required for federal jurisdiction. Denalli, 73 F.3d at 330-31.

6 The defendant in Denalli, Raymond Denalli, had been convicted under

§ 844(i) for burning down the home of his neighbors, the Federles. Id. at 329.

Pursuant to the Supreme Court's holding in Lopez, this Court considered whether

“the [Federles'] residence was used in any activity affecting interstate or foreign

commerce.” Denalli, 90 F.3d at 444. The only evidence offered by the Government

to satisfy this requirement showed that Mr. Federle occasionally produced

memoranda on his personal computer which he printed out at home and hand

delivered to co-workers at his place of employment, a corporation engaged in

international business. Denalli, 73 F.3d at 330-31. This Court found such evidence

insufficient to establish the interstate commerce nexus required by § 844(i) and

therefore reversed Denalli's conviction.

Belflower argues that under the standard articulated in Denalli,4 the

Government failed to establish that Deputy Thrower's automobile was used in an

activity affecting interstate or foreign commerce. In particular, Belflower contends

4 We recognize that there is disagreement over whether the analysis applied by this Court in Denalli is consistent with other precedent in this circuit applying Lopez, even with respect to subsequent cases interpreting § 844(i). If one interprets Denalli to stand for the principle that the government must prove in each case a substantial effect on interstate commerce, then some degree of tension may exist. However, Denalli turned on the government's complete failure to proffer evidence indicating anything more than a de minimus effect. In this light, Denalli simply seems to represent the unusual and rare case envisioned by the Supreme Court when it recognized that “perhaps not every private home” will fall within the scope of § 844(i). Russell v. United States, 471 U.S. 858, 862, 105 S. Ct. 2455, 2457 (1985). In the present case, we need not resolve this issue because even if one interprets Denalli to require a finding of substantial effect in each case, we conclude the Government satisfied that standard here.

7 that because patrolling and other law enforcement activities are not commercial,

they do not have an effect on interstate commerce. However, categorically labeling

a police vehicle as non-commercial does not preclude it from being used in an

activity that affects interstate commerce. As the Supreme Court noted in Russell,

the legislative history of § 844(i) indicates that Congress enacted the statute without

the language “for business purposes” with the specific intent of bringing police

stations and churches within the scope of the statute. Russell v. United States, 471

U.S. 858, 860-61, 105 S. Ct. 2455, 2456-57 (1985). Lopez does not affect the

Russell Court's analysis on this point because § 844(i) still requires that non-

commercial buildings or vehicles be “used in interstate or foreign commerce or in

any activity affecting interstate or foreign commerce.” 18 U.S.C. § 844(i).

In the present case, the 1989 Crown Victoria was used by Deputy Thrower

in the performance of his law enforcement duties. Although Thrower is the

designated narcotics officer for Bleckley County, he also patrols traffic and

performs other duties because the Sheriff's Department is small. Thus, Thrower has

patrolled traffic on Interstate 16 and other roads within Bleckley County. Of the

people to whom he issues traffic citations, Thrower estimated that twenty to thirty

percent are from out of state. Thrower has also participated in interstate narcotics

investigations and has made several drug arrests on the interstate. When Thrower

8 stops a person or vehicle on the street, he usually runs the identity of the person or

vehicle through computers to determine if such individual or vehicle is wanted by

state or federal authorities. In the course of his duties, Thrower has arrested

individuals who lived outside Georgia, has recovered stolen property outside of the

state, testified as a witness in out of state cases, and has attended law enforcement

training sessions outside Georgia. These facts clearly demonstrate that Thrower's

law enforcement duties have a significant impact on interstate commerce.

Belflower argues that these facts are insufficient because the Government

offered no specific evidence to establish that Thrower actually used the 1989 Crown

Victoria in undertaking all of the above activities. Belflower's argument

misconstrues the focus of the analysis required in the present case. Whether

Thrower actually used the 1989 Crown Victoria to perform every one of his duties

is not determinative. The determinative factors are that Thrower used the

automobile in the performance of his law enforcement duties and that the

performance of those duties clearly represents an activity affecting interstate

commerce.5

III. CONCLUSION

5 We note that our holding is limited to the facts of this case and does not establish a categorical rule that law enforcement is per se an activity that affects interstate or foreign commerce. Such a rule would contradict the clear lesson of Lopez, which “reminds us of the necessity of a case-by-case inquiry.” United States v. Chowdhury, 118 F.3d 742, 745 (11th Cir. 1997).

9 The evidence proffered by the Government in the present case establishes that

the 1989 Crown Victoria which Belflower attempted to destroy was used in an

activity affecting interstate or foreign commerce. We therefore conclude that the

Government satisfied the jurisdictional prerequisite of § 844(i).

AFFIRMED.