                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0246n.06

                                      Nos. 10-1626; 11-1577

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                                    FILED
                                                                                      Mar 02, 2012
UNITED STATES OF AMERICA,                             )
                                                      )                         LEONARD GREEN, Clerk
       Plaintiff-Appellee,                            )
                                                      )      ON APPEAL FROM THE UNITED
v.                                                    )      STATES DISTRICT COURT FOR
                                                      )      THE WESTERN DISTRICT OF
JASON TIMOTHY VARNES (10-1626);                       )      MICHIGAN
JEFFREY WILLIAM VARNES (11-1577),                     )
                                                      )
       Defendants-Appellants.                         )
                                                      )
                                                      )
                                                      )



       Before: KEITH, MARTIN, and GIBBONS, Circuit Judges.


       PER CURIAM. Jason Timothy Varnes and Jeffrey William Varnes, who are represented by

counsel, appeal their convictions for arson and conspiracy to commit arson.

       On February 23, 2009, brothers Jason and Jeffrey Varnes attended a late night party at which

they arranged to purchase $130 worth of cocaine from two men. Jason left the party and paid the

men, but subsequently realized that he had been cheated after the men did not return with the

cocaine. Jason found the men at an apartment. The apartment was part of a four unit complex.

Jason returned to the party, telling Jeffrey that they had been the victims of a fraud. Several hours

later, Jason and Jeffrey left the party. They drove to a gas station, filled a portable container with

gasoline, returned to the men’s apartment, and set the back porch on fire.

       Jason and Jeffrey were indicted for arson and conspiracy to commit arson. At Jason’s trial,

the district court instructed the jury that the government must prove beyond a reasonable doubt that
                                      Nos. 10-1626; 11-1577
                                              -2-

“the property which was damaged or destroyed was property used in or affecting interstate

commerce.” Additionally, “[r]ental residential property is included as property affecting interstate

commerce.” The jury sent a note asking whether, as a matter of law, residential rental property

affected interstate commerce, and the district court answered affirmatively. The jury convicted

Jason, and the district court sentenced him to sixty-eight months of imprisonment. Jason then filed

his timely appeal.

       At Jeffrey’s trial, the district court similarly instructed the jury. The jury convicted Jeffrey,

and the district court sentenced him to eighty-seven months of incarceration. Jeffrey also appealed

his convictions. The cases were consolidated because Jason and Jeffrey raise the identical issues of

whether the district court properly instructed the jury regarding the interstate commerce element of

the offenses and appropriately declined to give their proposed instruction regarding that element.

       We review the legal accuracy of the jury instructions de novo, United States v. Blanchard,

618 F.3d 562, 571 (6th Cir. 2010), and the district court’s refusal to give a proposed jury instruction

for an abuse of discretion. Id. at 573. Arson is prohibited on “any building, . . . used in interstate

or foreign commerce or in any activity affecting interstate or foreign commerce.” 18 U.S.C. § 844(i).

The Supreme Court has held that § 844(i) applies to apartment buildings used as rental property

because the rental of real estate is an activity that affects interstate commerce. Russell v. United

States, 471 U.S. 858, 862 (1985). However, in Jones v. United States, 529 U.S. 848, 855-59 (2000),

the Supreme Court held that arson of an owner-occupied private residence was not subject to

prosecution under § 844(i) because the family dwelling was not actively used for commercial

purposes. We have concluded that Jones does not affect Russell’s applicability of the arson statute

to rental property. United States v. Hang Le-Thy Tran, 433 F.3d 472, 477 (6th Cir. 2006).
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                                              -3-

Therefore, under the circumstances of this case, the district court appropriately instructed the jury

that a residential rental property affects interstate commerce as a matter of law.

       Jason and Jeffrey submitted a proposed jury instruction, based on United States v. Laton, 352

F.3d 286 (6th Cir. 2003), and United States v. Williams, 299 F.3d 250 (3d Cir. 2002), requiring that

the jury first determine the function of the building and then determine whether that function affected

interstate commerce. Laton and Williams are not applicable. Laton concerned whether a municipal

fire station qualified as a building affecting interstate commerce. Laton, 352 F.3d at 288. In

Williams, the Third Circuit used a two-step approach to conclude that the arson of a vacant rental

property affected interstate commerce. Williams, 299 F.3d at 254. Even if the Varnes’s interstate

commerce instruction had been given, the outcome would have been the same as no reasonable juror

could fail to find that the rental of the apartment affected interstate commerce. See United States v.

Khalil, 279 F.3d 358, 364-66 (6th Cir. 2002). Accordingly, the district court did not abuse its

discretion in refusing to give the proposed jury instruction.

       The district court’s judgments are affirmed.
