                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2497
                                   ___________

United States of America,                 *
                                          *
             Appellee,                    *   Appeal from the United States
                                          *   District Court for the District of
      v.                                  *   Minnesota.
                                          *
Gary Sigmund Corum,                       *   [PUBLISHED]
                                          *
             Appellant.                   *

                                   ___________

                             Submitted: February 9, 2004
                                Filed: April 5, 2004
                                 ___________

Before RILEY and RICHARD S. ARNOLD, Circuit Judges, and HOVLAND1
District Court Judge.
                            ___________

HOVLAND, District Judge.

       Gary Corum appeals his conviction of three counts of intentionally obstructing
or attempting to obstruct the free exercise of religious beliefs by threat of force in
violation of 18 U.S.C. § 247(a)(2), and three counts of using a telephone to threaten
to injure members or damage or destroy property of three synagogues in violation of
18 U.S.C. § 844(e). For the reasons stated below, we affirm.


      1
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota, sitting by designation.
I.    FACTUAL BACKGROUND

        On July 28, 2001, Gary Corum, a Minnesota resident, left threatening
messages on the voice mail systems of three synagogues in the Twin Cities area. The
voice messages threatened the use of explosives, fire, and/or a dangerous weapon to
burn down or blow up the synagogues. The messages also threatened to harm
synagogue members. In the first telephone call, made to the Bais Yaakov School,
housed in the Bais Yisroel Synagogue building in St. Louis Park, Minnesota, Corum
said, “Listen there little Jewish gal. This is the White Aryan People’s Party. We’re
gonna blow your fucking synagogue up this coming week and send you fuckers to the
gas chambers. So good luck in trying to protect your fucking synagogues from the
Aryan race. Heil Hitler!” In the second call, made to the Bet Shalom Temple in
Hopkins, Minnesota, Corum threatened to burn the synagogue and said, “Listen my
Jewish Zionist friends, we’re tired of playing games with you. We are going to take
over the planet. You’re going into gas chambers. We will burn down your
synagogue this coming week; this is not a threat. Heil Hitler.” In the third call, made
to the Mount Zion Temple in St. Paul, Minnesota, Corum said, “Okay listen you
fucking Jews. You crucified Christ once, you’re not going to pull a stunt again.
We’re putting (unintelligible) gas chambers (unintelligible) quickly. This week the
(unintelligible) synagogue is going up in smoke and dynamite. Heil Hitler!” Upon
receipt of the threats, the synagogues immediately contacted the police and then
proceeded to review their respective security procedures. Bet Shalom Temple
experienced a temporary drop in attendance.

       Corum was subsequently indicted by a federal grand jury for six violations of
federal law. Counts One through Three of the indictment charged Corum with
“intentionally obstruct[ing] and attempt[ing] to obstruct, under circumstances in and
affecting interstate commerce, by threat of force, the enjoyment and free exercise of
religious beliefs” of synagogue members in violation of the Church Arson Prevention
Act, 18 U.S.C. §§ 247(a)(2). Counts Four through Six charged Corum with using a

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telephone to threaten to injure members or damage or destroy property of the
aforementioned synagogues in violation of 18 U.S.C. § 844(e).

      Corum filed pretrial motions to dismiss the indictment, asserting that the
Church Arson Prevention Act violated the First Amendment’s Establishment Clause,
that 18 U.S.C. § 844(e) as applied to him was unconstitutional, and that the
indictment failed to allege a sufficient nexus with interstate commerce. Following
a hearing, the magistrate judge2 issued a report and recommended the denial of
Corum’s motions. The district court3 adopted the magistrate judge’s Report and
Recommendation and denied Corum’s motions. Applying the three-part test set forth
in Lemon v. Kurtzman, 403 U.S. 602 (1971), the district court concluded Sections
247 and 844(e) were constitutional. In addition, the district court concluded that the
indictment contained a sufficient factual basis to satisfy the interstate commerce
elements of the Church Arson Prevention Act and 18 U.S.C. § 844(e).

       The jury found Corum guilty on all counts. Following his conviction, Corum
moved for a judgment of acquittal on the grounds the evidence presented at trial was
insufficient to satisfy the interstate commerce elements of the Church Arson
Prevention Act and18 U.S.C. §844(e). Specifically, Corum asserted the Church
Arson Prevention Act and Section 844(e) were unconstitutional, the government had
failed to meet its burden of proving beyond a reasonable doubt that the offenses were
in or affected interstate commerce, and the threats were not conveyed through an
instrumentality of interstate commerce. The district court denied Corum’s motion.
The district court acknowledged the government had the burden of demonstrating an
affect on interstate commerce, but added the government was not required to prove


      2
       The Honorable Franklin L. Noel, Chief Magistrate Judge for the District of
Minnesota.
      3
       The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
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that the affect was substantial or that anyone’s rights had actually been obstructed.
The district court also recognized the telephone used by Corum was an
instrumentality of interstate commerce despite the fact that it was used to place
intrastate calls.

II.   LEGAL ANALYSIS

      A.     18 U.S.C. § 844(e)

       Corum argues his convictions under 18 U.S.C. § 844(e) should be set aside
either because the Government failed to prove his conduct had an affect on interstate
commerce or because 18 U.S.C. § 844(e), as applied in this case, is unconstitutional
under United States v. Lopez, 514 U.S. 549 (1995). The Government responds by
asserting that the evidence was sufficient to satisfy the interstate commerce element
of 18 U.S.C. § 844(e) and that the application of 18 U.S.C. § 844(e) to Corum’s
conduct is within Congress’s Commerce Clause power. We will review Corum’s
sufficiency of the evidence argument first.

       “We review the sufficiency of the evidence de novo.” United States v. Cuervo,
354 F.3d 969, 984 (8th Cir. 2004). “Following conviction, we view the evidence in
the light most favorable to the government, giving the government the benefit of all
reasonable inferences that support the verdict.” Id.

      Corum was charged with and convicted of three violations of 18 U.S.C. §
844(e), which provides in part:

      Whoever, through the use of the mail, telephone, telegraph, or other
      instrument of interstate . . . commerce, or in or affecting interstate . . .
      commerce, willfully makes any threat, . . . concerning an attempt or
      alleged attempt being made, or to be made, to kill, injure, or intimidate
      any individual or unlawfully to damage or destroy any building, . . ., or

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      other real or personal property by means of fire or an explosive shall be
      imprisoned for not more than 10 years or fined under this title, or both.

Corum asserts the Government failed to satisfy the interstate commerce requirement
of Section 844(e) because the evidence established the calls were local, did not cross
any state lines, and did not involve commercial transactions. Corum relies on cases
wherein the defendants were charged with violating 18 U.S.C. § 844(i) and contends
the Government is required to show the telephone was actually used to affect
interstate or foreign commerce.

        The textual difference in the two subdivisions is fatal to Corum’s argument.
18 U.S.C. § 844(i) prohibits the malicious damage or destruction by means of fire or
an explosive of “any building, vehicle, or other real or personal property used in
interstate commerce.” 18 U.S.C. § 844(i). The two subdivisions rely on different
types of conduct to establish the required interstate nexus. In general terms, in order
to prove a violation of 18 U.S.C. § 844(i), the Government must show damage to
property used in interstate commerce; whereas to prove a violation of 18 U.S.C. §
844(e), the Government must show an instrument of interstate commerce was used
to communicate a threat. The plain language of 18 U.S.C. § 844(e) does not require
proof of interstate commerce. Section 844(e) requires no additional proof of an
interstate nexus beyond a showing that Corum used an “instrument of interstate
commerce,” namely a telephone, to make his threat.

       It is well-established that telephones, even when used intrastate, are
instrumentalities of interstate commerce. See United States v. Marek, 238 F.3d 310,
319, n.35 (5th Cir. 2001); United States v. Gilbert, 181 F.3d 152, 158 (1st Cir. 1999);
United States v. Weathers, 169 F.3d 336, 341 (6th Cir.), cert. denied, 528 U.S. 838
(1999); United States v. Clayton, 108 F.3d 1114, 1116-17 (9th Cir.), cert. denied, 523
U.S. 896 (1997). Both intrastate and interstate telephone communications are part of
an aggregate telephonic system. There is no dispute Corum used a telephone to
communicate the bomb threat. Corum’s use of a telephone to make his threats, even

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if the calls were made intrastate, was sufficient to grant federal jurisdiction over his
crime pursuant to Congress’s power under the Commerce Clause. The intrastate use
of a telephone to communicate a bomb threat is an activity that falls squarely within
the explicit language of 18 U.S.C. § 844(e). Accordingly, when viewing the evidence
in the light most favorable to the government, we hold there was sufficient evidence
to satisfy the interstate commerce element of 18 U.S.C. § 844(e).

      Corum also asserts that 18 U.S.C. § 844(e), as applied in this case, is
unconstitutional under United States v. Lopez, 514 U.S. 549 (1995). This Court
reviews constitutional questions de novo. United States v. Koons, 300 F.3d 985, 990
(8th Cir. 2002).

      In United States v. Lopez, the United States Supreme Court identified three
broad categories of activity that Congress could regulate under its Commerce Clause
power.

             First, Congress may regulate the use of the channels of interstate
      commerce. Second, Congress is empowered to regulate and protect the
      instrumentalities of interstate commerce, or persons or things in
      interstate commerce, even though the threat may come only from
      intrastate activities. Finally, Congress’ commerce authority includes the
      power to regulate those activities having a substantial relation to
      interstate commerce, those activities that substantially affect interstate
      commerce.

514 U.S. at 558 (internal citations omitted).

       The statute here falls under the second category. While we have not had the
opportunity to previously consider the constitutionality of 18 U.S.C. § 844(e), other
Circuits have held no additional showing of an interstate nexus is necessary when a
statute regulates an instrumentality of interstate commerce. United States v. Gil, 297
F.3d 93, 100 (2d Cir. 2002) (holding that a showing that a regulated activity

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substantially affects interstate commerce is not needed when Congress regulates
activity defined by the first two Lopez categories); United States v. Marek, 238 F.3d
310, 318 (5th Cir. 2001) (holding that the intrastate use of instrumentalities of
interstate commerce is properly regulated by Congress under the second category
defined in Lopez); United States v. Gilbert, 181 F.3d 152, 158 (1st Cir. 1999)
(holding the fact a telephone is an instrumentality of interstate commerce is a
sufficient basis for jurisdiction based on interstate commerce); United States v.
Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997) (holding that telephones are
instrumentalities of interstate commerce falling under category two of Lopez and no
further inquiry is necessary to determine that their regulation is within Commerce
Clause authority).

       The First Circuit’s decision in United States v. Gilbert,181 F.3d 152, 158 (1st
Cir. 1999), is persuasive. In Gilbert, the defendant was charged with phoning a bomb
threat to the Department of Veteran’s Affairs Medical Center in Leeds,
Massachusetts, in violation of 18 U.S.C. § 844(e). On appeal, the defendant argued
the Government had failed to prove an intrastate phone call affected interstate
commerce. The First Circuit relied upon a line of intrastate telephone cases and
reasoned that:

      [b]oth intrastate and interstate telephone communications are part of an
      aggregate telephonic system as a whole. And as long as the
      instrumentality itself is an integral part of an interstate system, Congress
      has power, when necessary for the protection of interstate commerce, to
      include intrastate activities within its regulatory control.

United States v. Gilbert, 181 F.3d at 158-59 (quoting Kerbs v. Fall River Indus., Inc.,
502 F.2d 731 (10th Cir. 1974)). The First Circuit concluded by holding“[t]he use of
the telephone in this case to make a bomb-threat was, without more, sufficient to
sustain jurisdiction under the interstate commerce clause.” Gilbert, 181 F.3d at 159.



                                          -7-
      In a similar challenge, this Court held an interstate network of automatic teller
machines is a “facility in interstate or foreign commerce,” and even the use of an
ATM machine to make “an entirely intrastate electronic transfer” of funds between
two local banks satisfied the interstate commerce element of the Travel Act, 18
U.S.C. § 1952. United States v. Baker, 82 F.3d 273, 275 (8th Cir. 1996), cert. denied,
519 U.S. 1020 (1996).

       The reasoning and analysis of Baker and Gilbert apply equally to the current
case. Congress has the power to regulate instrumentalities of interstate commerce.
United States v. Lopez, 514 U.S. 549, 558 (1995). Purely intrastate activity falls
within this power when an instrumentality of interstate commerce is used. United
States v. Baker, 82 F.3d 273, 275 (8th Cir. 1996). We reject the constitutional
challenge made by Corum and conclude that 18 U.S.C. § 844(e) requires a sufficient
interstate nexus – the use of an instrument of interstate commerce – to satisfy the
Commerce Clause. Accordingly, Corum’s convictions under 18 U.S.C. § 844(e) did
not violate the Commerce Clause.

      B.     CHURCH ARSON PREVENTION ACT

      Corum was also charged and convicted of three violations of the Church Arson
Prevention Act, which provides in relevant part:

      (a)    Whoever, in any of the circumstances referred to in subsection (b)
             of this section–

             (2)    intentionally obstructs, by force or by threat of force, any
                    person in the enjoyment of that person’s free exercise of
                    religious beliefs, or attempts to do so . . . .

             shall be punished as provided in subsection (d).



                                          -8-
      (b)    The circumstances referred to in subsection (a) are that the
             offense is in or affects interstate or foreign commerce.

18 U.S.C. §§ 247(a)(2) and (b). The offense in this case is the intentional obstruction
of or attempt to obstruct the enjoyment of the free exercise of religious beliefs of the
members of each of the three synagogues in the Twin Cities area.

       Corum contends his convictions under the Church Arson Prevention Act must
be vacated because: (1) the Act is unconstitutional, and (2) there was insufficient
evidence presented at trial to satisfy the interstate commerce requirement of the Act.
The Government contends the Act is a constitutional exercise of legislative power and
there was sufficient evidence to satisfy all of the requirements of the Act. As the
constitutionality of the Church Arson Prevention Act is the threshold issue, we will
consider it first.

             1)     CONSTITUTIONALITY

        Corum contends the Church Arson Prevention Act is unconstitutional in that
it violates the Establishment Clause of the First Amendment. Our review is de novo.
United States v. Johnson, 56 F.3d 947, 953 (8th Cir. 1995). Our analysis of this issue
is governed by Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971).

        The First Amendment commands in part that“Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof.” A
statute will pass constitutional muster under Lemon so long as it: (1) has a secular
legislative purpose, (2) neither advances nor inhibits religion in its principal or
primary effect, and (3) does not foster an excessive government entanglement with
religion. Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). The requirement the
law serve a “secular legislative purpose” does not mean the law’s purpose must be
unrelated to religion. See Corp. of the Presiding Bishop of the Church of Jesus Christ
of Latter-Day Saints v. Amos, 483 U.S. 327, 335 (1987) (recognizing that the

                                          -9-
government may sometimes accommodate religious practices without violating the
Establishment Clause). “[T]hat would amount to a requirement that the government
show a callous indifference to religious groups, and the Establishment Clause has
never been so interpreted.” Id. Rather, the objective of the “secular legislative
purpose” requirement is to “prevent the relevant governmental decision maker–in this
case Congress–from abandoning neutrality and acting with the intent of promoting
a particular point of view in religious matters.” Id.

       The Church Arson Prevention Act has a secular purpose, that is, to curb threats
of violence directed against religious institutions that affect interstate commerce. See
United States v. Grassie, 237 F.3d 1199, 1209 (10th Cir. 2001) (finding Section 247's
legislative history informative on the specific impact of church attacks on interstate
commerce). Moreover, the Act does not endorse, sponsor, or advocate religion. The
Act does not single out one religious belief for special protection, but applies equally
to all faiths. Consequently, the Act constitutes a valid exercise of congressional
authority under the Lemon analysis. The fact 18 U.S.C. § 247 may have been
motivated in part by a religious purpose is not fatal. Lemon only requires there be
a secular purpose for the legislation, not that there be a solely secular purpose. See
Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (“For even though a statute that is
motivated in part by a religious purpose may satisfy the first criterion [of the Lemon
test].”); Lynch v. Donnelly, 465 U.S. 668, 680 (1984) (“The Court has invalidated
legislation or governmental action on the ground that a secular purpose was lacking,
but only when it has concluded there was no question that the statute or activity was
motivated wholly by religious considerations.”).

       The Church Arson Prevention Act likewise passes the second prong of the
Lemon test because it neither advances nor inhibits religion in its principal or primary
effect. “For a law to have forbidden ‘effects’ under Lemon, it must be fair to say that
the government itself has advanced religion through its own activities and influence.”
 Amos, 483 U.S. 327, 337. Such is not the case here. The primary effect of the Act

                                          -10-
is to curb violence and threats of violence that adversely affect an aspect of interstate
commerce Congress found to be particularly vulnerable to violent interference. Any
effect the Act may have with respect to the protection of those who chose to worship
free from interference would not constitute an advancement of religion by the
government itself. See Carter v. Peters, 26 F.3d 697 (7th Cir.), cert. denied, 513 U.S.
1003 (1994) (finding that a statute that enhanced penalties for crimes committed in
houses of worship had neither a religious purpose nor the principal effect of
advancing religion).

       Finally, we find the Church Arson Prevention Act does not foster an excessive
entanglement with religion as contemplated under Lemon. 18 U.S.C. § 247 prohibits
all violent interference with religious exercise. Although the government, in its role
as the Act’s enforcer, may interact with religious organizations, it is not required to
engage in persuasive monitoring of or intrusion into the activities of these
organizations. Agostini v. Felton, 521 U.S. 203, 233 (1997) (acknowledging that
some interaction between church and state is inevitable and that some involvement
between the two has always been tolerated). Corum warns of a lurking danger the
Act will be applied inconsistently, thereby giving favor to a particular religion or
religious ideology. As with any law, there exists the possibility that the Church
Arson Prevention Act will be abused in application. However, we believe the best
course of action is vigilance as opposed to invalidation of the Act.

             2)     SUFFICIENCY OF THE EVIDENCE

       Finally, Corum contends his convictions under the Church Arson Prevention
Act should be vacated because there was insufficient evidence presented at trial to
establish the violation was in or affected interstate or foreign commerce. As
previously noted, when addressing sufficiency of the evidence claims we view the
evidence in the light most favorable to the government. We will reverse only if no



                                          -11-
reasonable jury could have found the defendant guilty beyond a reasonable doubt.
United States v. Carlisle, 118 F.3d 1271, 1273 (8th Cir. 1997).

       The record reveals that the government presented sufficient evidence for the
jury to have determined the offense (threatening telephone calls) affected interstate
commerce.

      For the foregoing reasons, we affirm.

                       ______________________________




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