F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 29 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4061 (D.C. No. 96-CV-669-J) ADDAM W. SWAPP, (D. Utah)
Defendant-Appellant.
v. No. 98-4127 (D.C. No. 97-CV-289-J) JOHN TIMOTHY SINGER, (D. Utah)
ORDER AND JUDGMENT *
Before BALDOCK , BARRETT , and McKAY , Circuit Judges.
* These order and judgments are not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases
are therefore ordered submitted without oral argument.
Addam W. Swapp and John Timothy Singer separately seek certificates of
appealability (COA) which would enable them to appeal from the district court’s
denial of their motions, filed pursuant to 28 U.S.C. § 2255, to vacate, set aside or
correct their convictions. We companion these two appeals for disposition
because they are based on similar facts and raise similar issues. To obtain a
COA, appellants must make a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Appellants have not met this
standard because they have not shown that the issues they raised “are debatable
among jurists of reason,” that a court could resolve the issues differently, or that
the questions deserve further proceedings. See Barefoot v. Estelle , 463 U.S. 880,
893 n.4 (1983) (quotation omitted); United States v. Sistrunk , 111 F.3d 91, 91
(10th Cir. 1997). As a result, we deny their requests for COA and dismiss these
appeals.
-2- BACKGROUND
On January 16, 1988, a church building owned by the Church of Jesus
Christ of Latter-Day Saints (LDS) in Marion, Utah (the “Stake Center”), was
extensively damaged by a dynamite device which exploded inside it. Addam
Swapp, Singer’s brother-in-law, admitted that he had created the device, placed it
in the building, and set it to explode. After setting the device, Swapp walked to
a nearby family home (the “Singer property”) and watched the explosion with
family members. For the next thirteen days, federal law enforcement officers
surrounded the Singer property in an attempt to force the Singer and Swapp
family members to surrender. Swapp and Singer refused to leave the property or
cooperate with the officers. Throughout this period, Swapp was observed walking
around the Singer property with a rifle, and Singer, who is confined to a
wheelchair, was observed brandishing a rifle from the window of the Singer
property.
On January 28, 1988, Swapp left the home carrying a rifle. When agents
attempted to arrest him, shots were fired from the Singer house. A federal agent,
Lt. Fred House, was shot and killed. Two agents fired at Swapp, wounding him.
Additional shots were fired from the Singer residence. A bullet struck another
federal agent in the chest, but the bullet was deflected by his bullet-proof vest.
Shortly thereafter, Swapp, Singer and the remaining family members surrendered.
-3- Swapp, Singer and other family members were jointly tried in April 1988.
The jury found Swapp and Singer guilty of attempting to kill officers and
employees of the FBI, in violation of 18 U.S.C. § 1114; assaulting, resisting,
opposing, impeding and interfering with FBI agents while they were engaged in
the performance of their official duties, in violation of 18 U.S.C. § 111; and two
counts of using a deadly and dangerous weapon or firearm during and in relation
to these crimes of violence, in violation of 18 U.S.C. § 924(c). In addition,
Swapp was convicted of knowingly and maliciously damaging and attempting to
damage a building with an explosive, in violation of 18 U.S.C. § 844(i), and using
a deadly and dangerous weapon under § 924(c) in connection with that crime.
Swapp and Singer’s convictions and sentences were affirmed on appeal. United
States v. Swapp , Nos. 88-2433, 88-2435, 88-2516, 89-4090 and 89-4095, 1990
WL 299279 (10th Cir. Sept. 26, 1990) (unpublished disposition).
Swapp and Singer filed separate § 2255 motions in August 1996 and April
1997, respectively. The district court denied both motions, and denied appellants’
requests for COA.
-4- ANALYSIS
I. Jurisdictional Element of Arson Charge
A.
Swapp contends that, in light of the Supreme Court’s interpretation of the
Commerce Clause in United States v. Lopez , 514 U.S. 549 (1995), the federal
court lacked jurisdiction to try him under 18 U.S.C. § 844(i), the federal arson
statute, because there was insufficient evidence that the Stake Center was used in
any activity that affected interstate commerce. 1 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 for not less than 5 years and not more than 20 years, fined under this title, or both . . . .
18 U.S.C. § 844(i) (emphasis added).
1 Swapp did not raise any of his challenges to the interstate commerce element of his § 844(i) conviction on direct appeal. Nevertheless, a statutory requirement that an activity be “in or affecting interstate commerce” is both jurisdictional and an essential element of the charge, see United States v. Allen , 129 F.3d 1159, 1163 (10th Cir. 1997), and challenges to jurisdiction may be raised for the first time on collateral review. See United States v. Cook , 997 F.2d 1312, 1320 (10th Cir. 1993) (“jurisdictional issues are never waived and can be raised on collateral attack.”). Thus, Swapp is not procedurally barred from raising these issues. See United States v. Kunzman , 125 F.3d 1363, 1364-65 (10th Cir. 1997) (treating challenge to interstate commerce element of statute as jurisdictional, thus not procedurally barred), cert. denied , 118 S. Ct. 1375 (1998).
-5- In Lopez , the Supreme Court held that a federal statute prohibiting
possession of guns in school zones did not regulate “an activity that substantially
affects interstate commerce,” and was, therefore an unconstitutional exercise of
Congress’ Commerce Clause authority. 514 U.S. at 559. We have held that
§ 844(i) is a constitutional exercise of Congress’ Commerce Clause authority
because § 844(i), unlike the statute at issue in Lopez , contains a “‘jurisdictional
element which . . . ensure[s], through case-by-case inquiry, that the [arson] in
question affects interstate commerce.’” See United States v. Little , No. 96-4136,
1997 WL 767765 at **3 (10th Cir. Dec. 11, 1997) (unpublished disposition)
(alteration in original) (quoting Lopez , 514 U.S. at 561).
Swapp does not contend on appeal that § 844(i) is unconstitutional, but he
argues that in order to sustain a conviction under § 844(i) after Lopez , the
government is required to show the building in question had a “substantial” effect
on interstate commerce, rather than the “de minimis” effect previously required.
As the district court recognized, however, our circuit has rejected such a
heightened inquiry. We held in United States v. Bolton , 68 F.3d 396 (10th Cir.
1995), that the Lopez decision “did not . . . require the government to show that
individual instances of the regulated activity substantially affect commerce to
pass constitutional muster under the Commerce Clause.” Id. at 399; see also
United States v. Farnsworth , 92 F.3d 1001, 1006 (10th Cir. 1996) (recognizing
-6- that Lopez did not change the minimal level of proof required for interstate
commerce element of 18 U.S.C. § 922(g) firearm statute).
“In enacting section 844(i), Congress intended to exercise its full power
under the Commerce Clause of the Constitution, . . . and intended for the statute
to cover the destruction of church property.” United States v. Rea , 169 F.3d
1111, 1113 (8th Cir.) (quotation and citation omitted; citing Russell v. United
States , 471 U.S. 858, 860-61 & n.7 (1985)), petition for cert. filed (U.S. July 14,
1999) (No. 99-6136). When analyzing whether a conviction under § 844(i)
satisfies the jurisdictional element, we must determine whether the property was
“‘used’ in an ‘activity’ that affects commerce.” Russell, 471 U.S. at 862. Courts
have held, subsequent to Lopez , that a church building can be covered by § 844(i).
See Rea , 169 F.3d at 1113-14; United States v. Milton , 966 F. Supp. 1038, 1041
(D. Kan. 1997).
In this case, the jury made a specific factual finding in its verdict that the
Stake Center was used to “receive donated funds that were transmitted by mail or
by wire in interstate commerce.” Swapp R., Vol. I, Doc. No. 11, Ex. F. The
government presented evidence that donations to the Stake Center, in excess of
$1,000,000 annually, were deposited in a local bank. Each week, Stake Center
officials reported the amount of these received donations to an out-of-state
commercial data resource center in Omaha, Nebraska, which monitored and made
-7- an accounting of the funds. After the Nebraska data resource center notified LDS
church officials in Salt Lake City, Utah, of their accounting, LDS Church
headquarters had the funds electronically wire transferred through the Federal
Reserve Bank to a bank account of the LDS Church in Salt Lake City. These
funds were invested and used for LDS Church expenditures all over the country.
We agree with the district court that, under the standard that only de minimis
effect on commerce need be shown, this evidence was sufficient to establish that
the Stake Center was “used” in activities that “affected” interstate commerce, and
therefore, the jurisdictional element of § 844(i) was satisfied. Cf. United States v.
Wiseman , 172 F.3d 1196, 1214-16 (10th Cir.), cert denied , No. 99-5163, 1999 WL
496676 (U.S. Oct. 4, 1999) (holding that government established interstate nexus
where stolen money could have been used to purchase goods in interstate
commerce); United States v. Zeigler , 19 F.3d 486, 493 (10th Cir. 1994) (“A jury
may infer that interstate commerce was affected to some minimal degree from a
showing that the business assets were depleted.”).
B.
Swapp also argues that the jury was improperly instructed regarding his
violation of § 844(i). Still relying on Lopez , he contends that the jury instructions
were erroneous because they did not require the jury to find the Stake Center’s
activities had a “substantial” affect on interstate activities. As discussed above,
-8- however, Lopez did not change the minimal level of proof required for the
interstate commerce element of § 844(i).
Swapp next contends the instructions were in error because they did not
require the jury to find that the Stake Center had an “actual” effect on interstate
commerce. We have held, however, that only a potential effect on commerce is
required to satisfy a jurisdictional interstate commerce element; thus, there was no
error. See Wiseman , 172 F.3d at 1215-16; United States v. Nguyen , 155 F.3d
1219, 1228 (10th Cir. 1998), cert. denied , 119 S. Ct. 1086 (1999).
Finally Swapp complains that the jury was instructed that the interstate
commerce element would be established as a matter of law if it found that the
Stake Center was used in one of three activities suggested by the evidence.
Swapp contends that by offering the jury its choice of the three circumstances
presented by the evidence, the judge took from the jury the task of deciding
whether the Stake Center was used in interstate commerce or used in any activity
affecting interstate commerce. These instructions were not erroneous because the
trial court did not direct the jury to make any finding on the interstate nexus
element, but simply presented to the jury three alternatives suggested by the
evidence, any one of which would have been sufficient to prove that element of
§ 844(i).
-9- C.
Based on his contention that the Stake Center was not used in activities
affecting interstate commerce, Swapp also argues that the federal agents were
acting outside the scope of their federal jurisdiction while at the Singer property.
He contends, therefore, that he was lawfully acting within his right of self-
defense to resist unlawful arrest, citing Bad Elk v. United States , 177 U.S. 529
(1900), and that all of the charges against him should be dismissed. As discussed
above, however, the federal agents involved in the siege were acting within the
scope of their jurisdiction.
D.
Singer also claims that the United States lacked jurisdiction to try him
because, in light of Lopez , there was insufficient evidence that the Stake Center
was used in a way that substantially affected interstate commerce. He concedes
that he was neither charged nor convicted of any violation of § 844(i), but argues
he has a claim for relief because his trial was tainted by the court’s lack of
jurisdiction over his co-defendants. Singer’s contention that his conviction
should be set aside because of a claimed error in the convictions of his
co-defendants is without merit. Moreover, as we have discussed, the trial court
did have jurisdiction over all of the defendants and there was sufficient evidence
to satisfy § 844(i)’s jurisdictional element.
-10- II. Double Jeopardy
Swapp contends, for the first time on appeal of the denial of his § 2255
petition, that his convictions under 18 U.S.C. § 924(c) violate his Fifth
Amendment double jeopardy rights because the crimes of violence supporting his
§ 924(c) convictions involved the same conduct which supported his § 924(c)
convictions. We have held that double jeopardy claims are jurisdictional and are
not subject to waiver. See Kunzman , 125 F.3d at 1365 (treating § 2255 double
jeopardy claim as jurisdictional and not subject to procedural bar); United States
v. Broce , 781 F.2d 792, 797 (10th Cir. 1986) (holding that double jeopardy is an
absolute inhibition on government’s right to institute charges and is not subject to
waiver); but see United States v. Cox , 83 F.3d 336, 341 (10th Cir. 1996) (holding
that § 2255 double jeopardy claim procedurally barred because not raised on
direct appeal).
Therefore, assuming for purposes of this case that Swapp’s claim is not
waived or procedurally barred, his claim is, nevertheless, without merit. “We
have previously rejected this double jeopardy challenge . . . because ‘Congress
may impose multiple punishment for the same conduct without violating the
Double Jeopardy Clause if it clearly expresses its intent to do so,’ and Congress
did so in section 924(c).” United States v. Shinault , 147 F.3d 1266, 1279
-11- (10th Cir.), cert. denied , 119 S. Ct. 459 (1998) (quoting United States v.
Overstreet , 40 F.3d 1090, 1093, 1095 (10th Cir. 1994)).
III. Convictions under § 924(c)
Both Swapp and Singer contend that their convictions should be vacated
because the trial court’s jury instructions concerning “use” of a deadly or
dangerous weapon or firearm in violation of § 924(c) erroneously defined “use”
as interpreted by Bailey v. United States , 516 U.S. 137 (1995). The jury was
instructed that they could find appellants guilty of using a firearm under § 924(c)
if either “had the power and intention to exercise dominion or control” over the
firearm or if the firearm “furthered the commission of the crime or was an
integral part of the underlying crime being committed.” Swapp R., Vol. I., Doc.
No. 11, Exs. C and D (Jury Instruction Nos. 47 & 69). Appellants also complain
that one of the § 924(c) instructions implied that they could be found guilty under
§ 924(c) if they either used or carried a firearm, even though they were only
charged with “use” of a firearm. See Jury Instruction No. 48.
Neither Swapp nor Singer challenged the § 924(c) instructions at trial or on
direct appeal. Subsequently, the Supreme Court ruled in Bailey that to sustain a
conviction for using a firearm in violation of § 924(c), the government must prove
active employment of the firearm during and in relation to the predicate crime.
-12- See Bailey, 516 U.S. at 144; United States v. Powell , 159 F.3d 500, 501 (10th Cir.
1998), cert. denied , 119 S. Ct. 1088 (1999). A petitioner who has procedurally
defaulted a claim by failing to raise it on direct review may only raise it
collaterally if he can first demonstrate either cause and actual prejudice, or that he
is actually innocent. See Bousley v. United States , 118 S. Ct. 1604, 1611 (1998).
The district court agreed that the § 924(c) instructions given at appellants’
trial were erroneous in light of Bailey, but evaluated the error under our analysis
in United States v. Holland , 116 F.3d 1353 (10th Cir. 1997), in which we held
that a § 2255 petitioner established cause for failing to raise objections to
§ 924(c) “use” instructions where Bailey was decided after his direct appeal
because Bailey overturned a longstanding and widespread interpretation of
§ 924(c). See id . at 1356. The district court concluded appellants failed to
demonstrate that they were actually prejudiced by the erroneous instructions.
The Holland analysis employed by the district court, however, was subsequently
supplanted by Bousley, in which the Supreme Court ruled that Bailey’s
interpretation of § 924(c) was not so novel as to constitute “cause” to excuse
a petitioner’s failure to challenge the § 924(c) instructions on direct appeal,
thus overruling our previously stated contrary view in Holland . See Bousley,
118 S. Ct. at 1611; Powell , 159 F.3d at 502.
-13- The appellants do not assert that they have any cause to excuse their
procedural default; thus, their Bailey claims are procedurally barred absent a
showing of actual innocence of the § 924(c) charge. See United States v.
Leopard , 170 F.3d 1013, 1016 & n.3 (10th Cir. 1999) (applying Bousley to Bailey
jury instruction claims). To establish actual innocence, appellants “must
demonstrate that, in light of all of the evidence, it is more likely than not that no
reasonable juror would have convicted him.” Bousley , 118 S. Ct. at 1611
(quotations omitted). This means “factual innocence, not mere legal
insufficiency.” Id. Appellants never claimed actual innocence in their § 2255
motions; nor did they or the government address the application of Bousley to the
Bailey claims, even though Bousley was decided more than six months before
briefing in this case. Nevertheless, under the circumstances presented here, we do
not see a need to remand these cases to the district court for an “actual innocence”
determination because the evidence in the record supplies overwhelming evidence
that appellants “used” deadly or dangerous weapons in violation of § 924(c) as
interpreted by Bailey . See Luster v. United States , 168 F.3d 913, 915-16 (6th Cir.
1999) (holding remand for Bousley “actual innocence” analysis unnecessary
where record supplied “overwhelming evidence of culpability”).
-14- B.
Swapp was charged under § 924(c) with the use of a deadly and dangerous
weapon (a bomb) in relation to the bombing of the Stake Center. Swapp admitted
at trial to designing and building the bomb, placing it at the Stake Center, and
bombing the Stake Center. See Supp. R., Vol. VII., at 1871, 1881-82. These
admissions preclude any showing that he was actually innocent of the use of a
bomb in violation of § 924(c). Swapp was also charged with use of a firearm and
aiding and abetting in the use of a firearm in connection with the attempted
murder of federal officers, and with using a firearm during and in relation to the
crime of forcibly assaulting, resisting, opposing, impeding, or interfering with
federal law enforcement agents.
Swapp admitted to carrying loaded pistols at all times during the
thirteen-day siege with federal agents, and surveillance photographs taken during
the siege showed Swapp outside the Singer property holding a rifle. See id . at
1909; Swapp R. Vol. I., Doc. No. 30, Exs. I and J. Swapp admitted to firing
numerous shots from the Singer property during the siege, to firing shots in the
direction of the federal agents who were putting up lights and speakers near the
Singer property, and to aiming his rifle at a law enforcement helicopter flying
over the property. See Supp. R., Vol. VII. at 1877, 1910, 1912. He admitted to
carrying his loaded M-1 rifle and ammunition with him when he walked out of the
-15- house on the morning of the arrest. Id. at 1923. Federal agents testified that
Swapp turned his rifle toward them while they attempted to arrest him on January
28, 1988. See id ., Vol. V. at 1045–46, Vol. VI. at 1127.
This evidence is clearly sufficient to constitute “use” under § 924(c). See
Bailey , 516 U.S. at 148 (“The active-employment understanding of ‘use’ certainly
includes brandishing, displaying, bartering, striking with, and, most obviously,
firing or attempting to fire a firearm.”). Therefore, Swapp cannot demonstrate
that he is actually innocent of the two § 924(c) “use” firearm charges, and his
Bailey claim is, therefore, procedurally barred. See Powell , 159 F.3d at 504.
C.
Singer confessed that he sat in his wheelchair at the window of the Singer
property on the morning of January 28, 1988, armed with a .30 caliber carbine
rifle, and that he fired all ten rounds from this rifle toward the federal agents and
their dogs when they attempted to arrest Swapp. See Supp. R., Vol. VI. at
1604-06. Singer had two holsters strapped to his wheelchair in which he stated he
kept the .30 caliber carbine rifle and a .357 magnum revolver. See id . at 1606-07.
Singer’s taped interview in which he made these confessions was played to the
jury. See id . at 1610-11. A federal officer testified to spotting Singer armed with
this rifle. See id . Vol. V. at 690. Ballistics evidence showed that seven of the
bullets fired in the direction of the federal agents on the morning of January 28
-16- were from Singer’s rifle and one of the bullets fired from Singer’s rifle was
recovered from the coat of one of the federal agents who was struck during the
shooting. See id . Vol. VI. at 1514-21. Given this evidence, Singer cannot
demonstrate that he is actually innocent of the § 924(c) violations, see Bailey ,
516 U.S. at 148, and his Bailey claim is, therefore, procedurally barred, see
Powell , 159 F.3d at 504.
IV. Federal Crime Laboratories
Finally, based on newspaper articles describing an April 1997 report by the
Inspector General of the Department of Justice that was critical of the analyses
performed by certain specialized sections of the FBI’s crime laboratory, Singer
makes a conclusory, unspecified challenge to the quality of the scientific work
performed by the federal crime laboratory during his trial, and argues that the
district court should have held an evidentiary hearing to assess the reliability of
such evidence. Singer’s claims are entirely vague and speculative, and the district
court properly denied an evidentiary hearing. “Conclusory allegations
unsupported by specifics are insufficient to require a court to grant an evidentiary
hearing [in a habeas petition].” Hopkinson v. Shillinger , 866 F.2d 1185, 1211
(10th Cir. 1989)
-17- Accordingly, because we conclude that neither Swapp nor Singer have
made a substantial showing of the denial of a constitutional right, we DENY their
applications for COA and DISMISS these appeals.
Entered for the Court
James E. Barrett Senior Circuit Judge
-18-