                            In the
    United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 02-3428
GREGORY LEE MARTIN, SR.,
                                           Petitioner-Appellant,
                                v.

UNITED STATES OF AMERICA,
                                          Respondent-Appellee.
                         ____________
            Appeal from the United States District Court
                for the Southern District of Illinois.
           No. 98-420-MJR—Michael J. Reagan, Judge.
                         ____________
     SUBMITTED JUNE 12, 2003Œ—DECIDED JUNE 25, 2003
                     ____________
 Before FLAUM, Chief Judge,                and     POSNER    and
EASTERBROOK, Circuit Judges.
  FLAUM, Chief Judge. Gregory L. Martin was convicted
of arson for burning down one of his rental apartment
buildings, in violation of 18 U.S.C. § 844(i).1 In an earlier


Œ
  After examining the briefs and the record, we find that oral
argument is unnecessary in this case; accordingly, the appeal is
submitted on the briefs and the record. See Federal Rules of
Appellate Procedure 34(a); Circuit Rule 35(f).
1
  Section 844(i) provides, in relevant 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
                                                    (continued...)
2                                                    No. 02-3428

direct appeal, Martin argued unsuccessfully that his
conviction should be dismissed for want of jurisdiction
because the government had not established that his
apartment building, which was temporarily unoccupied
and partially boarded-up at the time of the fire, was a
building used in interstate commerce. See United States
v. Martin, 63 F.3d 1422, 1426-28 (7th Cir. 1995) (“Martin I”)
(holding that apartment building came within § 844(i)
because, despite its temporary vacancy at the time of
the fire, it was used primarily as a rental property, was
insured as a rental property, and Martin intended to re-let
it in the future). In this appeal, Martin mounts a colla-
teral attack on his conviction under 28 U.S.C. § 2255,
seeking dismissal2 of his conviction by arguing that the
Supreme Court’s most recent interpretation of § 844(i)
in Jones v. United States, 529 U.S. 848 (2000), limits the
reach of the federal arson statute and compels us to find
that Martin’s apartment building was not being “used” in
interstate commerce when he burned it down. We reject
this argument and find that the district court properly


1
   (...continued)
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 . . . .”
2
  Though Martin characterizes the lack of an interstate com-
merce nexus in his case as a lack of subject matter jurisdiction, it
is well-settled that the interstate commerce requirement is
just one of the essential elements of § 844(i). This means that
an absence of proof on the issue may doom the government’s case,
but it will not deprive the court of jurisdiction. See United
States v. John T. Martin, 147 F.3d 529, 531-32 (7th Cir. 1997)
(explaining that interstate commerce nexus is “jurisdictional” only
in the sense that without it there is no punishable federal crime,
and not in the sense that it affects a court’s subject matter
jurisdiction).
No. 02-3428                                                 3

denied Martin’s § 2255 motion to vacate his conviction
and sentence.
  Our decision in Martin I that the apartment building
in this case is unquestionably a commercial rental
property within § 844(i)’s reach remains unaffected by
Jones. In Jones the Supreme Court held that an owner-
occupied private home did not satisfy the interstate com-
merce requirement of § 844(i) where the building’s only
connection to interstate commerce was its receipt of na-
tural gas from an out-of-state provider, coverage by a
policy underwritten by an out-of-state insurance com-
pany, and use as collateral for a loan secured by an out-of-
state bank. 529 U.S. at 850-51. Yet Jones did not disturb
the Court’s holding in Russell v. United States, 471 U.S.
858, 862 (1985), that the arson statute applies to rental
properties. In fact, the Court in Jones explicitly affirmed
its earlier decision in Russell, noting that in both cases the
scope of § 844(i) was ascertained by asking whether the
building in issue had been “used in an activity affecting
commerce.” Jones, 529 U.S. at 855-56 (explaining that
the different outcomes in the two cases resulted from
factual differences in how the buildings were used—in
Russell as a rental property and in Jones as a private
residence—and not from legal differences in the meaning
of “used in interstate . . . commerce”). It remains true
after Jones that buildings actively used for a commer-
cial purpose, including restaurants, United States v.
Joyner, 201 F.3d 61 (2d Cir. 2000), home offices, United
States v. Jimenez, 256 F.3d 330 (5th Cir. 2001), church
daycare centers, United States v. Terry, 2001 WL 789160
(4th Cir. 2001), and temporarily vacant rental properties,
United States v. Williams, 299 F.3d 250 (3d Cir. 2002),
all possess the requisite nexus with interstate com-
merce under § 844(i). And so it is here, notwithstanding
Martin’s protestations that no paying tenants resided in
his apartment building at the time of the fire.
4                                              No. 02-3428

  As we discussed in Martin I, the temporary suspension of
commercial activity in a building that otherwise meets
the interstate commerce requirements of § 844(i) does
not permanently remove that building from the scope of
the arson statute. 63 F.3d at 1427; accord Williams, 299
F.3d at 256 (“[O]nce the business nature of the property
at issue is established, courts will presume, absent indicia
of an intention to permanently remove the property from
the stream of commerce, that the requisite interstate
commerce nexus exists.”) (quoting United States v. Gaydos,
108 F.3d 505, 510 (3d Cir. 1997)). Here, Martin claims
that the lack of tenants and presence of boarded-up win-
dows in his apartment building indicates that he no longer
intended to use the property for a commercial purpose,
meaning that the building no longer satisfied the inter-
state commerce requirement of § 844(i). See, e.g., United
States v. Ryan, 227 F.3d 1058 (8th Cir. 2000) (finding
that former fitness center, which had been permanently
closed for business a month before it was burned down
and had been intended for sale in the future to some
unknown buyer for some unknown purpose, was not a
building used in an activity affecting commerce within
the meaning of § 844(i)).
   Unfortunately for Martin, the evidence in this record
does not support his claim that he had no intention of re-
letting the apartments in his building. First, the last
tenant to live in Martin’s apartment building quit pay-
ing rent only two months before the fire and still had a
few pieces of her personal property in the unit when
Martin had the building destroyed. Second, Martin tes-
tified at trial that he had continued his efforts to improve
the condition of the units even after his tenants moved
out, and that on the day before the fire he was in the
building to clean out the downstairs area and prepare
its floors for refinishing. Third, Martin explained that
he was forced to board-up the windows on the ground
No. 02-3428                                             5

floor to protect against vandalism while he refurbished
the apartments. Finally, Martin had insured the building
as a piece of rental property from its date of purchase
until the date of the fire. All of this evidence indicates
that Martin had not permanently removed the apart-
ment building from the stream of commerce, which leads
us to conclude that the building was still a rental prop-
erty within the scope of § 844(i) at the time of the fire.
The judgment of the district court is therefore affirmed.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—6-25-03
