                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.                             No. 00-4856
CURTIS LEE TERRY,
               Defendant-Appellee.
                                        
UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.                             No. 00-4902
RONNIE WILLIAMS,
               Defendant-Appellee.
                                        
           Appeals from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                James C. Fox, Senior District Judge.
                          (CR-00-162-FO)

                       Argued: June 7, 2001

                      Decided: July 12, 2001

      Before WILKINSON, Chief Judge, and MICHAEL and
                   KING, Circuit Judges.



Reversed and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Michael joined. Judge King wrote
an opinion concurring in the judgment.
2                      UNITED STATES v. TERRY
                             COUNSEL

ARGUED: Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellant. Arthur Charles Zeidman,
FEDERAL PUBLIC DEFENDER’S OFFICE, Raleigh, North Caro-
lina; David William Venable, Raleigh, North Carolina, for Appellees.
ON BRIEF: Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Raleigh, North Carolina, for
Appellant. Thomas P. McNamara, Federal Public Defender, Raleigh,
North Carolina, for Appellees.


                              OPINION

WILKINSON, Chief Judge:

   We must decide whether the First Baptist Church of Raleigh, North
Carolina was sufficiently "used in" interstate commerce under 18
U.S.C. § 844(i) (1994) to make arson of the church a federal crime.
Because the church building contained a daycare center with signifi-
cant commercial characteristics, we hold that the building fits within
the terms of the statute. See Jones v. United States, 529 U.S. 848
(2000).

                                   I.

   On September 7, 2000, a federal grand jury charged Curtis Lee
Terry and Ronnie Williams with arson, in violation of 18 U.S.C.
§ 844(i), and conspiracy to violate § 844(i). The United States alleges
that Terry and Williams set fire to the First Baptist Church on August
12, 2000. Because this case comes to us after a dismissal of the indict-
ment by the district court, we must assume that all facts proffered by
the government are true. See United States v. Lund, 853 F.2d 242, 244
n.1 (4th Cir. 1988).

   The defendants started two fires in the church, one in the office of
the daycare center and the other in an auditorium. Before starting the
fires, the defendants broke into the office of the daycare center, and
                        UNITED STATES v. TERRY                         3
took blank checks which they drafted to themselves. Terry and Wil-
liams then burned the church "to cover evidence of the break-in."

   The defendants moved to dismiss the indictment on the ground that
the church identified in the indictment was not "used in" interstate
commerce as required by § 844(i). At a hearing on the motion to dis-
miss, the United States conceded that the church building was first
and foremost a place of worship. Nevertheless, the government pre-
sented the following evidence to show a nexus between the church
and interstate commerce: the church employed and paid salaries to
pastors, associate pastors, and a cleaning staff; some church employ-
ees had health insurance and retirement benefits administered through
an annuity board of the Southern Baptist Convention, based in Dallas,
Texas; the church was affiliated with the Cooperative Baptist Fellow-
ship, based in Atlanta, Georgia; church members paid tithes to the
church; the church had partnerships with organizations in other coun-
tries; the church subsidized charitable missions in various parts of the
United States and internationally; the church provided food and cloth-
ing to members of the public; the church purchased bus tickets for
needy persons; the church received Sunday school materials from a
publisher in Macon, Georgia; the church hosted out-of-state speakers;
and the church had out-of-state members.

  The United States also presented evidence about a daycare center
operating within the church building. The center was open from 7:30
a.m. to 5:30 p.m. daily. It occupied a main part of the church building.
An organization independent of the church ran the daycare center.
Parents who used the daycare center paid a monthly fee of $706. The
daycare teachers were employed and paid by the center, not the
church. The church did not collect rent from the daycare center. The
daycare center did not make a profit.

   The district court, for purposes of the motion to dismiss, assumed
all these facts to be true. Nevertheless, the court dismissed the indict-
ments against both Terry and Williams. The court stated that none of
the facts proffered by the government established for purposes of
§ 844(i) that the building was used in interstate or foreign commerce,
4                       UNITED STATES v. TERRY
or in an activity affecting interstate or foreign commerce. The United
States now appeals.*

                                    II.

   Section 844(i) provides in pertinent part, "Whoever maliciously
damages or destroys, or attempts to damage or destroy, by means of
fire or an explosive, any building . . . used in interstate or foreign
commerce or in any activity affecting interstate or foreign commerce
shall be imprisoned." 18 U.S.C. § 844(i).

   In Jones v. United States, 529 U.S. 848 (2000), the Supreme Court
held that § 844(i) did not reach the arson of an owner-occupied pri-
vate residence. See 529 U.S. at 859. Neither the use of the dwelling
as collateral for a mortgage from an out-of-state lender, the use of the
dwelling to obtain an out-of-state insurance policy, nor the use of the
dwelling to receive natural gas from sources outside the state permit-
ted the private home to fall within the terms of § 844(i). Id. at 855.
The Court stated that the qualifying words "used in" signaled Con-
gress’ intent not "to invoke its full authority under the Commerce
Clause." Id. at 854.

   The Jones court established a two-part inquiry to determine
whether a building fits within the strictures of § 844(i). First, courts
must inquire "into the function of the building itself." Id. at 854 (inter-
nal quotations omitted). Second, courts must determine "whether that
function affects interstate commerce." Id. (internal quotations omit-
ted). Because § 844(i) does not invoke Congress’ full authority under
the Commerce Clause, the Court explained that the qualification
"‘used’ in an activity affecting commerce" is "most sensibly read to
mean active employment for commercial purposes, and not merely a
passive, passing, or past connection to commerce." Id. at 855.

   *We think it inadvisable to address the question raised by our concur-
ring colleague in view of the fact that the only ground advanced by the
government for reversal is that the activities of the First Baptist Church
fell within the jurisdictional ambit of § 844(i), as defined by the Jones
decision.
                       UNITED STATES v. TERRY                         5
   First, the church building had at least two functions. The unchal-
lenged primary function of the building was religious in nature. The
building operated as a house of worship. But the First Baptist Church
was more than just a sanctuary. Rather, a secondary and important
function of the building was to house the daycare center. The daycare
center occupied a main part of the church building. It was open from
7:30 to 5:30 Monday through Friday. It employed its own teachers.
It charged a fee of $706 per month.

   The defendants argue, however, that the operation of the daycare
center was not interstate commerce because the center was nothing
more than a missionary outreach of the church. But it does not matter
whether religion was one of the reasons or even the primary reason
why the daycare center was located inside the church building. An
activity can have both a religious aspect and an economic one. We
cannot close our eyes to the commercial nature of an activity solely
because non-commercial considerations also underlie it. A contrary
rule would altogether prevent Congress from protecting places of
worship from criminal misconduct, even when they served a plainly
interstate commercial function.

   The second step in the Jones analysis is to determine if the function
of the building affects interstate commerce. This test requires "active
employment for commercial purposes, and not merely a passive, pass-
ing, or past connection to commerce." Id. Thus, if either the religious
function of the church or the daycare center affected interstate com-
merce under the terms of the statute, the indictment must be sus-
tained.

   The United States takes the view that the religious function of the
building standing alone affected interstate commerce. It points to evi-
dence such as the church’s out-of-state members, the church’s
employees who received a wage for their efforts, the church’s affilia-
tion with the Cooperative Baptist Fellowship which was based in
another state, the church’s sponsorship of international missions, the
church’s purchase of Sunday school materials from an out-of-state
supplier, and the church’s refurbishing of homes from which it could
reasonably be inferred that the church purchased building materials
which in turn impacted the nationwide market for construction goods
and services. What the United States urges us to do, however, is sim-
6                      UNITED STATES v. TERRY
ply not necessary to decide this case. Not only is the government’s
position much broader than it needs to be, it would also create a cir-
cuit split on this issue. See United States v. Johnson, 246 F.3d 749
(5th Cir. 2001) (per curiam) (holding that a church with tenuous inter-
state commerce connections did not fit within § 844(i)).

   The effect of the daycare center on interstate commerce is by itself
dispositive here. The daycare center charged parents $706 per month
to safekeep and teach their children during the day. The function of
the daycare center was to provide child care services in exchange for
payment. Contrary to the defendants’ assertions, the daycare center
had more than a passing or passive connection to interstate com-
merce. Instead, the daycare center was actively engaged in commer-
cial activity by participating in the market for childcare services. See
Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564,
586 n.18 (1997) (noting a $16 billion "market in child day care ser-
vices"). The daycare center was not removed from or passively con-
nected to commerce. Rather, the operation of the daycare center was
itself a commercial activity. Regardless of the religious organization’s
effect on interstate commerce, the daycare center’s presence trans-
formed the building into one that was being actively employed for
commercial purposes.

   The fact that the daycare center did not make a profit does not
change the analysis of whether the operation of the daycare center
was a commercial activity. See Camps Newfound, 520 U.S. at 583-86.
In Camps Newfound, the Supreme Court held that "the nonprofit char-
acter of an enterprise" does not "exclude it from the coverage of either
the affirmative or the negative aspect of the Commerce Clause." Id.
at 584. While the facts of Camps Newfound involved a not-for-profit
camp in Maine, the Court made clear that its holding was not limited
to summer camps. Instead, the Court pointed out that "[t]here are a
number of lines of commerce in which both for-profit and nonprofit
entities participate. Some educational institutions, some hospitals,
some child care facilities, some research organizations, and some
museums generate significant earnings; and some are operated by not-
for-profit corporations." Id. at 585. The Court also specifically noted
that "the $5 billion nonprofit market in child day care services com-
petes with an $11 billion for-profit industry." Id. at 586 n.18. The
Camps Newfound holding binds us here. The Court in Camps New-
                       UNITED STATES v. TERRY                         7
found not only recognized that "[n]othing intrinsic to the nature of
nonprofit entities prevents them from engaging in interstate com-
merce," id. at 585, it also emphasized that providing child care was
a "service industr[y]" in which both for-profit institutions and non-
profit institutions compete. Id. at 586 n.18.

   It is not dispositive that the commercial activity of providing day-
care services took place entirely within the city of Raleigh. Since
United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court has
emphasized that Congress’ enumerated powers have judicially
enforceable limits. But the Court has also upheld Congress’ ability to
aggregate the economic effects of local activities so long as those
activities are commercial in nature. See id. at 559-60; United States
v. Morrison, 529 U.S. 598, 610-11 (2000). To hold that local com-
mercial activities like the child care center here do not affect com-
merce would call into question such cases as Heart of Atlanta Motel,
Inc. v. United States, 379 U.S. 241 (1964). Such a limitation could
impair Congress’ ability to address national economic problems and
stretch the judicial power beyond its proper constitutional role.

   In Russell v. United States, 471 U.S. 858 (1985), a unanimous
Supreme Court held that § 844(i) "unquestionably" applies to a "two-
unit apartment building that is used as rental property." Russell, 471
U.S. at 858, 862. The Court stated that the "local rental of an apart-
ment unit is merely an element of a much broader commercial market
in rental properties." Id. at 862. Likewise, the $706 fee charged by the
daycare center is an element of the much broader commercial market
for childcare services. In both Russell and in the case at bar, the com-
mercial use of the property brings the building within § 844(i)’s juris-
dictional nexus.

                                  III.

   Our holding is a limited one. Not all buildings, and not all
churches, come within the ambit of § 844(i). Jones established that
buildings which merely receive electricity and gas from interstate
sources are not subject to the arson statute. Congress does not enjoy
plenary power to usurp the states’ traditional authority to denominate
offenses like arson, larceny, burglary, vandalism, and other crimes
against local property. Here, however, the presence of the daycare
8                       UNITED STATES v. TERRY
center makes clear that the building was actively employed in com-
mercial activities. Consequently, the indictment satisfies § 844(i)’s
jurisdictional requirement. For the foregoing reasons, the judgment of
the district court is reversed and the case is remanded with directions
to reinstate the indictment.

                                        REVERSED AND REMANDED

KING, Circuit Judge, concurring in the judgment:

   Although I agree with the majority that the decision appealed from
must be reversed and this case remanded for trial, I reach that conclu-
sion through a separate route from my learned colleagues. I write sep-
arately to explain my position.

   First of all, characterizing what occurred below as a dismissal of
the indictment confuses the issue. It is elementary that a motion to
dismiss an indictment implicates only the legal sufficiency of its alle-
gations, not the proof offered by the Government. In most cases, "an
indictment is sufficient if it alleges an offense in the words of the stat-
ute, assuming those words ‘fully, directly, and expressly, without any
uncertainty or ambiguity, set forth all the elements necessary to con-
stitute the offence.’" United States v. Wicks, 187 F.3d 426, 427 (4th
Cir. 1999) (quoting Hamling v. United States, 418 U.S. 87, 117
(1974) (internal citation omitted)).

   There is no legal deficiency in this indictment. It alleges each
essential element of a federal crime under § 844(i), and it asserts par-
ticularly that the First Baptist Church was "used in interstate and for-
eign commerce and in activity affecting interstate and foreign
commerce." J.A. 41. The pretrial proceedings thus necessarily
assaulted the Government’s proof as outlined in the stipulated proffer,
not the allegations of the indictment.

   Second, it has been clear at least since the Supreme Court’s deci-
sion in United States v. Gaudin, 515 U.S. 506 (1995), that an accused
is entitled to have a jury decide each element of the offense with
which he is charged. The jury’s function is not merely to determine
the existence vel non of the factual components underlying the essen-
                          UNITED STATES v. TERRY                           9
tial elements, "but to apply the law to those facts and draw the ulti-
mate conclusion of guilt or innocence." Id. at 514.

   The mandate of Gaudin applies even to "jurisdictional" elements,
and specifically to the interstate commerce element of the federal
arson statute. See United States v. Latouf, 132 F.3d 320, 325 (6th Cir.
1997) ("Because the ‘substantially affects interstate commerce’
requirement is a jurisdictional element [of 18 U.S.C. § 844(i)], it must
be proven to the jury beyond a reasonable doubt.") (citing United
States v. DiSanto, 86 F.3d 1238, 1246 (1st Cir. 1996); United States
v. Pappadopoulos, 64 F.3d 522, 524 (9th Cir. 1995)). The jury must
be properly instructed, of course, taking into account the recent juris-
prudence on the point. See Jones v. United States, 529 U.S. 848, 855
(2000) (holding § 844(i) element that subject property be "used" in
activity affecting commerce to require "active employment for com-
mercial purposes").

   Third, even before Gaudin, the prevailing view was that the Gov-
ernment’s proof with respect to jurisdictional elements is subject to
evaluation by the trial court solely in connection with a motion for
judgment of acquittal made "after the evidence on either side is
closed," as specified by Rule 29 of the Federal Rules of Criminal Proce-
dure.1 Such review may not ordinarily be undertaken in considering
a pretrial motion to dismiss made pursuant to Rule 12(b). See United
States v. Nukida, 8 F.3d 665, 669-70 (9th Cir. 1993) (in product tam-
pering prosecution, Rule 12(b) motion to dismiss on ground that com-
merce element was lacking "amounted to a premature challenge to the
sufficiency of the government’s evidence tending to prove a material
element of the offense"); United States v. Ayarza-Garcia, 819 F.2d
1043, 1048 (11th Cir. 1987) ("[A] pretrial motion to dismiss the
  1
   In setting forth the applicable procedure, Rule 29 provides, in perti-
nent part:
      The court on motion of a defendant or of its own motion shall
      order the entry of judgment of acquittal of one or more offenses
      charged in the indictment or information after the evidence on
      either side is closed if the evidence is insufficient to sustain a
      conviction of such offense or offenses.
Fed. R. Crim. P. 29 (emphasis added).
10                      UNITED STATES v. TERRY
indictment cannot be based on a sufficiency of the evidence argument
because such an argument raises factual questions embraced in the
general issue.").2 The district court’s preliminary ruling in this case
regarding the sufficiency of the Government’s evidence was therefore
an aberration. It was, perhaps, a serious enough departure from estab-
lished methodology to warrant reversal on procedural grounds.3

   Had the matter actually proceeded to trial, the result would have
hinged on the timing of the district court’s ruling. If we assume that
the trial evidence would have conformed to the proffer, the court may
have been inclined to enter a judgment of acquittal following the
Government’s case-in-chief or after the defense had rested. Because
the district court’s judgment would have been based upon its determi-
nation that the evidence was insufficient to convict Terry, principles
of double jeopardy would have barred any appeal by the Government.
See United States v. Mackins, 32 F.3d 134, 137-38 (4th Cir. 1994).
If the court had instead deferred its entry of judgment until after the
jury had returned a guilty verdict, the Government would have been
permitted to appeal Terry’s acquittal inasmuch as the verdict could
simply be reinstated without offending the Double Jeopardy Clause.
See 18 U.S.C. § 3731; United States v. Mitchell, 177 F.3d 236, 238
(4th Cir. 1999) (citations omitted).

   The district court here, however, entered its judgment prior to the
attachment of jeopardy, rendering the situation analogous to post-
verdict cases like Mitchell. That is, the Double Jeopardy Clause poses
no impediment to the Government’s appeal. We are therefore obliged
to review de novo the district court’s judgment of acquittal pursuant
to Rule 29. United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997)
(citation omitted). In so doing, we are bound (as was the district
  2
     Rule 12(b) permits only those defenses, objections, or requests "capa-
ble of determination without the trial of the general issue" to be raised
and addressed by motion prior to trial. Fed. R. Crim. P. 12(b).
   3
     I say "perhaps" because the Government may have waived its right to
object to the unusual procedure employed by the district court by acced-
ing to the court’s demand for a proffer. Had the Government instead
refused the invitation to stage a dress rehearsal, thereby triggering dis-
missal of the indictment, the procedural point would have been pre-
served.
                         UNITED STATES v. TERRY                           11
court) to "view the evidence in the light most favorable to the govern-
ment and inquire whether any rational trier of fact could find the
essential elements of the crime beyond a reasonable doubt." Id. In that
vein, this case would pose the following question: "Could a reason-
able jury, properly instructed, find as a fact that the First Baptist
Church was used in interstate commerce, or in activity affecting inter-
state commerce?" The evidence related by the majority and stipulated
to by the parties, ante at 3-4, is clearly sufficient to establish the inter-
state commerce element.

   I agree with the majority that the most compelling fact in that
regard is the evidence regarding the day care center operated within
the church. But I would reach the same conclusion even had no day
care center existed. Reviewed under the deferential Rule 29 standard,
the additional evidence concerning the interstate commerce element
would, standing alone, compel denial of a judgment of acquittal.

   The majority, like the district court, treats the interstate commerce
issue as being primarily a legal one, suitable for court determination
in the first instance. I do not agree. The interstate commerce element
of § 844(i) requires proof of a fact, and, in the ordinary course, it is
subject to our review of the Government’s evidence in accordance
with Rule 29 — and not otherwise.

  In all events, I am pleased to concur in the judgment.
