                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-1999

USA v. McGuire
Precedential or Non-Precedential:

Docket 97-3542




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Filed May 28, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-3542

UNITED STATES OF AMERICA

v.

JOSEPH T. MCGUIRE
       Appellant

ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
Criminal Action No. 97-cr-00005-1J
District Judge: Hon. D. Brooks Smith

Argued: November 17, 1998

Before: MCKEE, RENDELL & WEIS, Circuit Judges.

(Filed: May 28, 1999)

       Shelley Stark, Esq. (Argued)
       Office of Federal Public Defender
       960 Penn Avenue
       415 Convention Tower
       Pittsburgh, PA 15222

       Attorney for Appellant
       Paul J. Brysh, Esq. (Argued)
       Bonnie R. Schlueter
       Office of United States Attorney
       633 United States Post Office &
        Courthouse
       Pittsburgh, PA 15219

       Attorneys for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

Joseph McGuire appeals his conviction for aiding and
abetting the use of an explosive to destroy property used in
an activity affecting interstate commerce in violation of 18
U.S.C. SS 2 and 844(i). For the reasons that follow we hold
that the evidence presented was not sufficient to establish
the jurisdictional element of the offense, and we will
reverse.

I.

On the morning of December 19, 1995, Joseph's mother,
Lee Ann McGuire, was injured when a pipe bomb exploded
inside her Toyota Camry. Mrs. McGuire operated LD&B
Catering with her best friend, Diane Murray. LD&B
Catering, was licensed to do business in Pennsylvania, and
operated locally. Mrs. McGuire and Ms. Murray had an
arrangement with a local church whereby they would use
the church's kitchen to prepare food for their catering jobs.
They gave the church 30% of any profit they made in return
for the use of the kitchen. Murray and McGuire used
several different vehicles, including Lee Ann's Toyota, to
transport items for their catering business.

On the morning of December 19, 1995, that Toyota was
destroyed by a pipe bomb which had been planted beneath
the driver's seat. The explosion caused the catering
business to stop operating for approximately three months.
However, the interruption was not due to the loss of the
Toyota, or anything in it. Rather, it resulted from Diane

                                2
Murray's need to help Lee Ann McGuire recover from
injuries sustained when the bomb exploded.

The crime remained unsolved for nearly a year. However,
in November 1996, agents from the Bureau of Alcohol,
Tobacco, and Firearms questioned Joseph McGuire and his
fiance, Kristen Markeeta. During that interrogation,
McGuire purportedly confessed to helping a friend, Gary
Mingle, place the bomb in McGuire's mother's car. 1
McGuire stated that he and Ms. Markeeta solicited Mingle
to "take care of" Mrs. McGuire because they resented Mrs.
McGuire's interference in their relationship. McGuire's
assistance consisted of signaling Mingle by turning on a
light on Mrs. McGuire's porch. This signaled Mingle that
the occupants of the McGuire household were asleep and
that it was safe for Mingle to place the bomb in Mrs.
McGuire's car. McGuire was convicted of violating 18 U.S.C.
S 844(i), and this appeal followed.

II.

A.

18 U.S.C. S 844(i) states in relevant part:

       Whoever maliciously damages . . ., by means of an
       explosive, any . . . vehicle, or other real or personal
       property used 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;

"Thus, an essential element of the crime of arson under
S 844(i) is that the property was used in any activity
affecting interstate or foreign commerce." United States v.
Pappadopoulos, 64 F.3d 522, 524 (9th Cir. 1995) (citing
United States v. Karlic, 997 F.2d 564, 571 (9th Cir. 1993))
_________________________________________________________________

1. In this appeal, McGuire challenges the authenticity of his statement,
and argues the district court violated the corpus delecti rule admitting
it.
However, we need not resolve those issues because of our determination
that the government failed to establish the jurisdictional element of the
crime.

                               3
(internal quotations omitted). This jurisdictional element,
like all other elements of any criminal offense, must be
established beyond a reasonable doubt. Pappadopoulos, 64
F.3d at 524 (citing United States v. Nukida, 8 F.3d 665,
669-73 (9th Cir. 1993)).

Both parties here rely heavily on the Supreme Court's
decision in United States v. Lopez, 514 U.S. 549 (1995). The
constitutionality of 18 U.S.C. S 844(i) is not implicated in
this appeal. In Lopez

       the Supreme Court invalidated the Gun Free School
       Zones Act of 1990, which made it a federal offense for
       any individual knowingly to possess a firearm at a
       place that the individual knows, or has reasonable
       cause to believe, is a school zone. The Court . . .
       observed that [that Act] neither regulates a commercial
       activity nor contains a requirement that the possession
       be connected in any way to interstate commerce.

United States v. Gaydos, 108 F.3d 505, 508 (3rd Cir. 1997)
(internal quotation marks and citations omitted). In Gaydos
we upheld the constitutionality of S 844(i) against a
challenge bottomed on Lopez. We stated:

       Unlike the statute at issue in Lopez, S 844(i) contains
       a jurisdictional element which ensures, on a case-by-
       case basis, that the property in question must be used
       in interstate or foreign commerce or in any activity
       affecting interstate or foreign commerce.

Id. (internal quotation marks omitted).

Here, McGuire makes a constitutional argument, but his
primary challenge is to the sufficiency of the evidence that
was introduced to establish the interstate commerce nexus
required by S 844(i).2
_________________________________________________________________

2. We apply a particularly deferential standard of review when deciding
a sufficiency of the evidence challenge. "It is not for us to weigh the
evidence or to determine the credibility of the witnesses. . . . Rather,
we
must view the evidence in the light most favorable to the government,
and will sustain the verdict if `any rational trier of fact could have
found
the essential elements of the crime beyond a reasonable doubt.' " United
States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (internal citations
omitted).

                               4
B.

At trial, the prosecutor sought to establish the
jurisdictional nexus required by this statute by relying
upon Mrs. McGuire's occasional use of her Toyota in her
catering activity, and the contents of the Toyota's trunk
when it exploded. The evidence established that a bottle of
Tropicana orange juice had been in the trunk of the Toyota
when it exploded. The raw material for that orange juice
was produced in Florida and then shipped by "tanker"
truck to Reading Pennsylvania where it was packaged for
home consumption and distributed. Lee Ann McGuire or
Diane Murray purchased the orange juice at a Sam's Club
in Altoona Pennsylvania for use in a catering job scheduled
for December 20, 1995. Although the government conceded
that the catering business itself was a small, intrastate
activity, the prosecutor argued that the bottle of orange
juice was sufficient to satisfy the interstate commerce
requirement of 18 U.S.C. S 844(i) because the Florida
origins of the juice established that the activities of LD&B
catering had an interstate effect, and the Toyota was
therefore used in an activity affecting interstate commerce.

On appeal the government suggests that we should now
look past the orange juice and consider other items that
were in the trunk, the fuel in the gas tank, and the nature
of Mrs. McGuire's catering business. The government states
"[a]t the time of the explosion, there were in the trunk of
the Camry toothpicks, Tyson's chicken, and Tropicana
orange juice for a catering job the next day." Appellee's Br.
at 24. The prosecution also states that the catering
business "was a licensed business that had some effect
upon interstate commerce. The government is not required
to show that this effect was itself substantial." Appellee's
Br. at 24. However, the only evidence that the government
introduced at trial of the effect the catering business had
on interstate commerce pertained to the production,
transportation, and distribution of the orange juice. During
the trial, the court expressed its concern about the
sufficiency of that proof:

       [The Court]: it boils down to a very simple question
       . . . why is this a federal case. .. Does this case,. . .as

                               5
       a federal case come down to nothing more than a
       carton of orange juice? . . .

       [The Prosecutor]: Absolutely not, Your Honor. I think
       the question is whether LD&B Catering had an effect
       on interstate commerce. . .. [w]hether this vehicle was
       used in an activity, . . . affecting interstate commerce.

       So it is our position that we have established from an
       evidentiary standpoint that LD&B Catering, by virtue of
       its existence as a for profit commercial enterprise,
       supplied by food items purchased at distributors, to
       include out of state suppliers, is by its nature a
       commercial enterprise which affects interstate
       commerce.

***

       we have sought to demonstrate, . . . that the property
       in question have (sic) a de minimis effect on interstate
       commerce.

App. 566-68. The trial judge then summarized the positions
of the defendant and the prosecution. The court noted that
the defendant was arguing that, under Lopez, the
prosecution must show that the act he was accused of had
a "substantial effect on interstate commerce" while the
prosecution maintained that it need only satisfy a"de
minimis test." Id at 568. The prosecutor accepted this
statement of his position, and elaborated as follows:

       I would concede the point. I am and have proceeded on
       a de minimis platform. I have not presented evidence,
       other evidence of the manner and breadth of which
       LD&B Catering had an effect as a commercial
       enterprise on interstate commerce, to include the fact
       perhaps that the automobile was supplied by gasoline
       which had moved in interstate commerce, or to show
       that the building in which LD&B Catering operated,
       that is the church, was supplied by heat and fuel or an
       electrical grid which had moved in interstate commerce
       . . . It is my position that the standard is that it have
       a de minimis effect, and that I have met that burden.

App. at 570. However, despite these theoretical assertions,
the only evidence that was offered was summarized in the
following proffer:

                               6
       I'm prepared to show, for instance, that Tropicana
       orange juice, that being the single item which was
       located in the trunk of the vehicle, had moved in
       interstate commerce.

App. at 571.

The jury convicted the defendant as charged in the single
count indictment. Following the conviction, the district
court issued a Memorandum Order explaining its rejection
of the defendant's previously filed motion for judgment of
acquittal under Fed. R. Evid. 29(b). The district court ruled
that the carton of orange juice was sufficient to satisfy
jurisdiction as it established that the catering business was
an activity that affected commerce. See Dist. Ct. Op. at 2
("The government's theory is that while the Toyota was not
itself used in interstate commerce, the Toyota was used in
an activity affecting interstate commerce."). 3

C.

The government's assertion that the carton of orange
juice is sufficient to support the jurisdictional element of
S 844(i) relies in large part upon Russell v. United States,
471 U.S. 858 (1985). There, the defendant was convicted of
violating S 844(i) based upon the arson of a rental property
which he owned, earned rental income from, and treated as
business property for tax purposes. On appeal he argued
that the building was not commercial or business property,
and therefore the charged arson lacked the interstate
commerce nexus required under 18 U.S.C. S 844(i). The
Supreme Court rejected that argument and held that"[t]he
reference to `any building . . . used . . . in any activity
affecting interstate or foreign commerce' " in the statute
" `expresses an intent by Congress to exercise its full power
under the Commerce Clause.' " Russell, 471 U.S. at 859.
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 . . ." Id. at 86.
_________________________________________________________________

3. In the Memorandum Order, the court stated:"I have expressed to
counsel for both parties my own view that the interstate commerce
nexus is a thin one." Dist. Ct. Op. at 3.

                               7
Ten years later the Supreme Court reconsidered the
scope of the Commerce Clause in Lopez. After reviewing the
evolution of Commerce Clause jurisprudence the Court
stated:

       But even these modern-era precedents which have
       expanded congressional power under the Commerce
       Clause confirm that this power is subject to outer
       limits. In Jones & Laughlin Steel, the Court warned
       that the scope of the interstate commerce power must
       be considered in the light of our dual system of
       government and may not be expanded so as to
       embrace effects upon interstate commerce so indirect
       and remote that to embrace them, in view of our
       complex society, would effectually obliterate the
       distinction between what is national and what is local
       and create a completely centralized government. . . .
       Since that time, the Court has heeded that warning
       and undertaken to decide whether a rational basis
       existed for concluding that a regulated activity
       sufficiently affected interstate commerce.

514 U.S. at 556-57 (internal quotation marks and citations
omitted).

The government quite correctly points out that Congress
can regulate an intrastate activity "when the cumulative
effect of a collection of such events might ultimately have
substantial effect on interstate commerce." Appellee's Br. at
23 (quoting United States v. Rybar, 103 F.3d 273, 283 (3d
Cir. 1996)). The government asserts that it need only show
that the arson here had a de minimis effect because
Congress can properly regulate the interstate activity of
which it was a part. The district court agreed. See Dist. Ct.
Op. at 2 ("I conclude that Lopez does not change the
applicable standard for judging the sufficiency of the
evidence. I therefore apply only a de minimis standard.")
(citing Russell).

The defendant, on the other hand, argues that when
Congress imposes a regulation under its authority to
"regulate those activities having a substantial relation to
interstate commerce," the government can prosecute an
activity pursuant to such regulation only if the activity has

                                8
a "substantial effect" on interstate commerce. Appellant's
Br. at 20 & 24.

We reversed the conviction in Gaydos, because the
government had not satisfied the interstate commerce
element of S 844(i). Although the defendant in Gaydos did
not preserve her challenge to the sufficiency of the
jurisdictional evidence, we reviewed the sufficiency of the
evidence under a plain error standard, as a failure to prove
an element of an offense is a fundamental error and may be
noticed on appeal despite a defendant's failure to preserve
the issue. Gaydos, 108 F.3d at 509.

In Gaydos, the defendant tried to collect insurance
proceeds by scheming to burn a residential building she
owned. The building was abandoned and the owner had no
intention of returning the property to the rental market.
She had stated she had no intention of removing the lead
paint that was in the building, and she had removed
lighting and plumbing fixtures from it. As noted above, on
appeal we first held that Lopez did not undermine the
constitutionality of S 844(i). We then analyzed the broad
pronouncements of Russell in context with the Supreme
Court's subsequent amplification in Lopez as part of our
plain error review of the sufficiency of the evidence. Our
review focused upon cases involving arson of rental
property. We concluded:

       Collectively, this case law suggests that once 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 nexus between the
       property and interstate commerce is satisfied,
       notwithstanding temporary changes or modifications in
       the use of the property. We note that in each of these
       cases, however, there was a clear intention that the
       property at issue either remain in, or return to, the
       stream of commerce.

Id. at 509. We held that, inasmuch as Gaydos' property was
uninhabitable, and she had no intention of ever
rehabilitating it or renting it, the property did not have a
sufficient nexus to interstate commerce to support a
conviction under S 844(i).

                                9
       We conclude that a reasonable juror could not have
       done more than speculate that the house . . . had a
       real prospect of generating any future rental revenue.

       . . . we hold that the government could not prove
       beyond a reasonable doubt that the house . . . was
       used in an activity affecting interstate commerce.

Id. at 511.

The inquiry in Gaydos centered upon whether the
property was "used," as it was uninhabitable and certain to
remain so.4 Here, much of the argument focuses upon the
"interstate commerce" prong of S 844(i), as the Toyota was
used "periodically" in Mrs. McGuire's catering business.
Nevertheless, we consider both the nature and frequency of
that use, as well as the extent to which the catering activity
affected commerce, in deciding if the evidence supports the
exercise of federal jurisdiction under Lopez. See Gaydos,
108 F.3d at 508 (stating the need for a case-by-case inquiry
where statute contains a jurisdictional element to"ensure
. . . that the [activity] in question affects interstate
commerce").

McGuire's argument that the government must show a
"substantial" effect on interstate commerce to sustain a
conviction under S 844(i) after Lopez draws support from
United States v. Pappadouplouos, 64 F.3d 522, 527 (9th
Cir. 1995). There, the defendant was convicted of
conspiring to burn her home in violation of S 844(i) in an
effort to collect over $4 million in insurance proceeds. The
government argued that jurisdiction had been established
by proof that the defendant's home received natural gas
from out-of-state sources. The court of appeals reversed.
The court held that Lopez precluded applyingS 844(i) to the
arson of a private residence based only upon that property's
receipt of natural gas from out-of-state. Id. at 527.

The government counters McGuire's reliance upon
Pappadouplouos by arguing that case is inapposite here
_________________________________________________________________

4. "Russell established that renting real estate is an activity that
affects
interstate commerce for purposes of S 844(i). Courts interpreting Russell
have held that `rental property is per se property used in an activity
affecting interstate commerce.' " Gaydos, 108 F.3d at 509.

                               10
because it dealt with the arson of a private residence. The
nexus relied upon there (the home's connection to, and use
of, an interstate supply of natural gas) did not satisfy
S 844(i) because the property was not used in interstate
commerce. Appellee's Br. at 21-22.

The district court dismissed the holding in
Pappadouplouos, based upon its conclusion that Lopez did
not change the test adopted under earlier cases.
Accordingly, the district court concluded that the
prosecution need only show a de minimis effect on
interstate commerce to support a conviction underS 844(i).
See Dist. Ct. Op. at 2, 4 (citing the pre-Lopez cases of
United States v. Stillwell, 900 F.2d 1104 (7th Cir. 1990),
and United States v. Metzger, 778 F.2d 1195 (6th Cir.
1985)).

D.

As we conduct our analysis we are mindful that,"in view
of our complex society," there is virtually nothing that does
not affect interstate commerce in some manner. Lopez, 514
U.S. at 555. Though certain conduct may appear to be the
quintessence of local activity, if we "follow the money" the
trail we will always disclose some effect on interstate
and/or foreign commerce. For example, though the effect is
highly attenuated, driving a few blocks to pick up one's
children (consumption of gasoline refined from foreign oil,
and wear and tear on vehicle manufactured in another
state or country) or eating dinner in front of one's own
television set (consuming food and beverages from outside
of state or country, as well as decisions on how to spend
hundreds of millions of advertising dollars), have an
indirect effect on interstate, and often foreign commerce.
Even such a seemingly parochial action as borrowing a cup
of sugar from a neighbor5 can be viewed as part of the
stream of commerce that extends to refineries overseas.

Thus, the district court's conclusion that a de minimis
effect on interstate commerce (no matter how attenuated)
can support the exercise of federal jurisdiction after Lopez,
_________________________________________________________________

5. Assuming there are communities where this still occurs.

                                11
could be stretched to include driving one's daughter to a
neighbor's house to deliver a single box of Girl Scout
cookies. In view of the Supreme Court's pronouncements in
Lopez, we do not believe that such an inconsequential effect
can support the exercise of federal jurisdiction over a
purely intrastate concern without obliterating the
distinctions between state and federal jurisdiction.

The prosecution recognizes this. Though the government
has argued throughout these proceedings that it need only
show a de minimis effect on interstate commerce, it cites
United States v. Denalli, 73 F.3d 328 (11th Cir. 1996) (per
curiam), in conceding that "there are uses so trivial or
attenuated that they are not covered by the statute."
Appellee's Br. at 25. In Denalli, the defendant was convicted
of burning the home of a neighbor named Federles, in
violation of S 844(i). The government sought to establish
jurisdiction by showing that Mr. Federles worked for a
company that had various projects in Canada and was
engaged in interstate and foreign commerce, and
furthermore, Mr. Federles had a computer in his home on
which he prepared memoranda for his employer on a
weekly basis. The court, however, noted that Federles'
employer did not require him to have a computer in his
home, and the computer was not connected to a modem.
Rather, Federles would print out his weekly memoranda
and personally deliver them to his work place instead of
transmitting them electronically. "He conducted no further
activity for [his employer] at his residence that affected
interstate commerce." Id. at 330. The court concluded that
this was not sufficient to establish that Federles' home was
used in an activity affecting commerce, and reversed the
conviction.6

The reasoning in Denalli was criticized in United States v.
Hicks, 106 F. 3d 187 (7th Cir. 1997), wherein the court
relied upon the aggregate effect of "local" conduct to uphold
the exercise of jurisdiction. "[I]t doesn't take any fancy
intellectual footwork to conclude that the aggregate effect of
_________________________________________________________________

6. Inasmuch as Federles was living in his home at the time it burned, we
assume that it was connected to interstate utilities. See Pappadopoulos,
supra.

                               12
such arsons on commerce is substantial." Id . at 189. The
Hicks court disagreed with the holding in Denalli and
Pappadopoulos, because it felt that those cases erroneously
failed to consider the aggregate effect of the criminal
conduct. The court in Hicks believed that the Commerce
Clause clearly allowed the federal government to exercise
authority over the interstate supply of natural gas, and a
residential fire that interrupted that supply posed a
sufficient federal concern to justify the exercise of federal
jurisdiction.

Hicks was in turn criticized in United States v. Corona,
108 F.3d 565 (5th Cir. 1997). In Corona, the court stated,
"we doubt that an effect as small as the cessation of
natural gas service to a single household satisfies the
constitutional requirement. Taking the `effects test' to its
logical extreme would for all practical purposes grant the
federal government a general police power, the very danger
the Lopez Court warned us against." Id. at 570.

We agree that the concerns expressed in Lopez preclude
applying the "aggregation test" so broadly that it sweeps
within its reach every use of every property that has an
effect on interstate commerce no matter how diluted.7 The
_________________________________________________________________

7. We do not, however, mean to suggest that a court can never consider
the aggregate effect upon commerce. See United States. v. Gentile, 144
F.3d 1365 (11th Cir. 1998) (court approved aggregating effect on
interstate commerce where bomb was placed in a truck that was subject
to an interstate leasing agreement, and was controlled by intended
victim's employer); United States v. Chowdbury, 118 F.3d 742, 745 (11th
Cir. 1997) (aggregating effects on business property"because business
property will almost invariably be an element of a much broader
commercial market"); United States v. Latouf, 132 F.3d 320, 326 (6th
Cir. 1997) (in upholding conviction under S 844(i) for arson of a
restaurant the court noted "[a]lthough these contacts standing alone
may not have been sufficient to demonstrate the requisite `substantial'
effect on interstate commerce, this court must consider these contacts in
the aggregate") (citing Wickard v. Filburn, 317 U.S. 111 (1942)).

Although the courts that have been called upon to determine the
sufficiency of the evidence to sustain a conviction under S 844(i) after
Lopez do not agree if the evidence must establish a substantial effect on
commerce, we need not decide that issue here. We need only decide
whether the record here supports the exercise of federal jurisdiction.
Compare Latouf with Denalli.

                               13
government is correct in conceding that "some uses are so
trivial or attenuated that they are not covered by[S 844(i)]."
This prosecution is such a case.

LD&B Catering was a "family business" consisting of Mrs.
McGuire and her best friend Diane Murray. Mrs. McGuire
asked Ms. Murray to become a partner because Mrs.
McGuire's son was unwilling to get involved. App. at 55.
The government offered evidence that Mrs. McGuire used
her personal car (the Toyota Camry) in the catering
business "only periodically." App. at 478. However, the jury
was required to guess at how frequently the Toyota was
used in connection with the catering business.8 Mrs.
McGuire and Murray also used a van, Joseph McGuire's
truck, and a truck belonging to Diane Murray's husband.
App. at 479. It is not disputed that no business was lost
because the Camry was partially destroyed. The manager of
Tropicana's materials and systems testified that although
the orange juice container here could be used
commercially, it was consistent with residential use.9 App.
at 586. We do not believe that a conviction for violating 18
U.S.C. S 844(i) can be sustained on this record without
obliterating the intrastate/interstate distinction that was
reinforced under Lopez.

Moreover, although Gaydos involved an inquiry under the
"use" prong of S 844(i), we cannot ignore that the property
there did, in the aggregate, affect interstate commerce. One
need only look at the inventory of abandoned buildings that
so deplete the tax base and real estate values of so many
cities to appreciate that owning even an abandoned rental
property could be interpreted as a use affecting interstate
commerce, if we were to use the "aggregation test" to
stretch interstate commerce to its furthest boundaries. Yet,
_________________________________________________________________

8. This is not a situation where the Toyota was necessary to the catering
operation. See United States v. Michaels, 726 F.2d 1307, 1310 (8th Cir.
1984) (stating that sufficient evidence existed to satisfy the
jurisdictional
element of S 844(i) when the vehicle damaged was an integral and
necessary part of the business).

9. Pictures introduced at trial show that the orange juice container was
the typical size that one might expect to see on the shelf of a
supermarket or neighborhood convenience store.

                               14
we reversed the conviction in Gaydos because the evidence
was not sufficient. Thus, our analysis here is consistent
with the result we reached in Gaydos.

We think that a conviction under 18 U.S.C. S 844(i) must
rest upon more than the dubious interstate commerce
nexus of our hypothetical cup of sugar, or the ephemeral
nexus of the government's carton of orange juice."[I]n view
of our complex society," supporting this conviction by so
slender a thread as the government presented here would
be tantamount to removing the jurisdictional requirement
from S 844(i). We do not believe that the Supreme Court
required Congress to include a jurisdictional element under
Lopez only to have courts interpret the resulting statutes in
such a way as to remove it.

E.

We realize that our decision fails to establish any bright
line test that a trial court can apply in deciding if the
jurisdictional evidence in a given case is sufficient to
support a conviction under S 844(i). The Supreme Court
recognizes that this "may in some cases result in legal
uncertainty." Lopez, 514 U.S. at 566. Yet, we cannot avoid
all uncertainty if we are to allow for the "case-by-case
inquiry" required under Lopez. See Gaydos, 108 F.3d at
508 (citing Lopez, 115 S.Ct. at 1631-32). However, we
believe that trial courts will be able to continue making
practical, common sense determinations of whether the
evidence in a given case is sufficient to justify the exercise
of federal jurisdiction. " `[T]he question is necessarily one of
degree' . . . . [T]here never will be a distinction between
what is truly national and what is truly local, . . ." Lopez,
514 U.S. at 567-68.

Moreover, the "use" and effect upon interstate commerce
here is so very nebulous that the evidence that was
presented clearly cannot support the exercise of federal
jurisdiction under this statute. We believe that the evidence
here would have been insufficient to support this conviction
even under a de minimis standard, if that standard were
applied in a manner that is consistent with Lopez. Proof
that this single bottle of orange juice was to have been used

                               15
10. In reaching our holding we do not mean to suggest that we are
adopting the view of those courts that require the government to
establish that a particular use has a "substantial" effect on interstate
commerce under S 844(i). We only hold that the evidence presented here
is not sufficient to support a conviction.
by a business that is as concededly local in character as
LD&B Catering is simply not sufficient to establish
jurisdiction under S 844(i).

III.

For the reasons set forth above, we hold that the district
court here erred in concluding that the government's
evidence had the jurisdictional juice needed to support the
exercise of federal jurisdiction under S 844(i). Accordingly,
we will reverse the judgment of conviction and remand this
matter to the district court for entry of an order consistent
with this opinion.10

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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