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

No. 06-3524
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                               v.

JEREMY S. CRAFT,
                                         Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
    for the Northern District of Indiana, South Bend Division.
        No. 06 CR 11—Robert L. Miller, Jr., Chief Judge.
                         ____________
     ARGUED MARCH 29, 2007—DECIDED MAY 1, 2007
                   ____________


 Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.
  FLAUM, Circuit Judge. A jury convicted Jeremy Craft of
six counts of damaging, by means of fire, a building used
in interstate commerce in violation of 18 U.S.C. § 844(i)
and two counts of knowingly using a fire to commit a
felony in violation of 18 U.S.C. § 844(h). Craft filed a
motion for acquittal on five of the counts. The district
court denied the motion, and Craft appeals. For the
following reasons, we affirm in part and reverse in part.


                      I. BACKGROUND
  Between January 2005 and January 2006, there were
over twenty arson fires set in the southeast side of South
2                                               No. 06-3524

Bend, Indiana. On the evening of January 13, 2006,
Michael Smith left his apartment to smoke a cigarette and
saw Jeremy Craft wearing a dark blue Chicago Bears
jacket. Smith was a friend of Craft but had not seen him
for some time. He followed Craft and saw him walk up to
the back door of a residence at 303 E. Dayton, break out
a window pane in the back door, light up two flares, and
throw them inside the house through the broken window
pane. Smith ran home, called 911, and reported what he
had witnessed.
  The fire department responded to Smith’s call and
collected fire debris from the scene that tested positive for
the presence of gasoline. Fire department investigators
also found flare caps near the rear door. The police initi-
ated a search for Craft and found him later that evening
with another friend, John Wolverton, at 302 ½ E. Dayton.
Craft was wearing a dark blue Chicago Bears jacket that
reeked of gasoline. The police arrested Craft and kept him
in custody at the St. Joseph County Jail.
   The police began an investigation into the arson fires
and discovered that Craft had confessed to friends and
acquaintances that he had started fires at several build-
ings. Craft told Wolverton that he had started a fire at an
Indiana truck stop and that he had singed his Chicago
Bears jacket when he set fire to a house on Koontz Lake.
He also admitted to Wolverton that he set a fire at 242 E.
Indiana in South Bend, a house owned by the Ortizes, a
couple of Mexican descent, and had set fire to a house
occupied by an African American man named Sam Triplett.
In addition, Craft told Wolverton about setting fires at
each of the following locations in South Bend: 1612 S.
Michigan, 807 W. Indiana Ave., 1615 S. Columbia, and 218
E. Indiana Ave. Craft further admitted setting the arson
fires to his friend David Pulsifer, and to fellow inmates
Tremaine Grant and David Chipps.
No. 06-3524                                                3

  On February 9, 2006, a grand jury charged Craft with
seven counts of damaging, by means of fire, a building
used in interstate commerce in violation of 18 U.S.C.
§ 844(i) (counts one, three, four, five, seven, eight, and
ten), one count of carrying and using a destructive device
during and in relation to a crime of violence in violation
of 18 U.S.C. § 924(c) (count six), and two counts of know-
ingly using a fire to commit a felony in violation of 18
U.S.C. § 844(h) (counts two and nine). Counts six and ten
were later dismissed. On June 13, 2006, after a three
and a half day trial, the jury convicted Craft on all remain-
ing counts.
   On June 21, 2006, Craft filed a motion for acquittal
pursuant to Federal Rule of Criminal Procedure 29 on
counts two, four, five, seven, and nine. On August 28,
2006, the district court denied the motion. The following
day, the district court conducted a sentencing hearing
and ruled that Craft’s combined Guideline’s range was
168 to 210 months’ imprisonment.1 The district court
sentenced Craft to 210 months in prison for counts one,
three, four, five, and seven to run concurrently; ten years
for count two to run consecutive to the 210 months; and
twenty years for count nine to run consecutive to all other
terms of imprisonment. The district court also imposed a
term of three years supervised release, restitution, and a
special assessment of $800. On September 11, 2006, Craft
filed his notice of appeal.


                     II. DISCUSSION
  On appeal, Craft challenges the sufficiency of the
evidence with regard to counts two, four, five, seven, and


1
  On counts two and nine, Craft was subject to mandatory
minimum consecutive sentences of ten years and twenty years,
respectively.
4                                            No. 06-3524

nine.2 When reviewing a conviction for sufficiency of
evidence, this Court considers the evidence in the light
most favorable to the government, and all inferences are
drawn in the government’s favor. United States v. Masten,
170 F.3d 790, 794 (7th Cir. 1999). Reversal is appropriate
only when the record contains no evidence, however
weighed, from which the jury could have found guilt
beyond a reasonable doubt. United States v. Hickok, 77
F.3d 992, 1002 (7th Cir. 1996).

2



    Count      Violation     Fire Date     Address of
               Charged                     Fire

    2          18:844(h)-    May 16,       242 E. Indi-
               Use of Fire   2005          ana St.,
               to Commit a                 South Bend,
               Felony                      IN

    4          18:844(i)-    Sept. 19,     618 E.
               Arson         2005          Broadway,
                                           South Bend,
                                           IN

    5          18:844(i)-    Sept. 20,     807 W. Indi-
               Arson         2005          ana Ave.,
                                           South Bend,
                                           IN

    7          18:844(i)-    Oct. 29,      1615 S. Co-
               Arson         2005          lumbia,
                                           South Bend,
                                           IN

    9          18:844(h)-    Oct. 10,      311 E. Indi-
               Use of Fire   2005          ana, South
               to Commit a                 Bend, IN
               Felony
No. 06-3524                                                 5

    A. Counts Two and Nine
  Craft argues that the government presented insufficient
proof to sustain his conviction under counts two and nine,
which charged Craft with using fire to commit another
federal felony, specifically, a violation of 42 U.S.C. § 3631.
Section 3631 states:
    Whoever, whether or not acting under color of law, by
    force or threat of force willfully injures, intimidates
    or interferes with, or attempts to injure, intimidate, or
    interfere with—
    a) any person because of his race, color, religion, sex,
    handicap (as such term is defined in section 3602 of
    this title), familial status (as such term is defined
    in section 3602 of this title), or national origin and
    because he is or has been selling, purchasing, renting,
    financing, occupying, or contracting or negotiating
    for the sale, purchase, rental, financing or occupation
    of any dwelling, or applying for or participating in any
    service, organization, or facility relating to the busi-
    ness or renting dwellings . . . shall be fined . . . or
    imprisoned not more than one year, or both . . . .
42 U.S.C. § 3631.
  Craft first maintains that the government did not
prove that he violated § 3631 because it offered insufficient
evidence that the arson fires were racially motivated. We
disagree. The evidence at trial demonstrated that Lucio
and Diana Ortiz, both of Mexican descent, owned the
property located at 242 E. Indiana, the subject of count
two, and that Sam Triplett, an African American man,
occupied 311 E. Indiana, the subject of count nine. The
government presented five witnesses who testified that
Craft told them that he purposefully set fire to both of
these homes. John King testified that he asked Craft
why he was setting the homes on fire. Craft replied that “it
6                                               No. 06-3524

was fun” and added that the neighborhood “was full of
wetbacks and niggers anyway.”
  Wolverton testified that when Craft told him about
setting the Ortiz residence on fire, Craft said that he had
“cooked the Mexicans.” Wolverton also testified that
Craft told him about setting fire to Triplett’s home and
stated that he had “cooked Sam.” Craft also said, “Fuck
Sam. Sam’s a nigger.” Finally, Pulsifer testified that Craft
was a racist and made numerous racist remarks and
vulgar racial epithets during the relevant time frame. This
evidence was sufficient for a jury reasonably to conclude
that Craft was motivated by racial animus toward his
victims. See United States v. J.H.H., 22 F.3d 821, 826-27
(8th Cir. 1994) (holding that evidence of cross burnings
at night, along with racial slurs contemporaneous with
the burnings, and complaints about an African American
in the neighborhood was sufficient evidence of intent
under § 3631); United States v. White, 788 F.2d 390, 392
(6th Cir. 1986) (holding that evidence of arson, racial slurs,
and comments about “niggers” in the neighborhood was
sufficient for conviction under § 3631).
   Craft contends that the evidence showed that he set
fire to Triplett’s home because Triplett had not paid Craft
enough money to help him move out of the apartment. The
government was not required to prove, however, that racial
animus was Craft’s sole motivation in setting the fire.
Rather, it was only required to prove that the victims’ race
or ethnicity partially motivated Craft’s crimes. See United
States v. Magleby, 241 F.3d 1306, 1310 (10th Cir. 2001)
(approving an instruction in a § 3631 case that stated, “it
does not matter that the defendant may have had more
than one motive in performing the act as long as . . . race
was one of his motives”). In any case, the jury was free to
reject Craft’s stated reason for setting the fire at 311 E.
Indiana in favor of other testimony that indicated that he
set the fire because of racial animus.
No. 06-3524                                                  7

   Craft next asserts that the government did not prove
that he interfered with the Ortizes’ or Triplett’s property
rights. He claims that because the Ortizes did not live on
the property at 242 E. Indiana (they were fixing up the
property for their son), he did not interfere with their
housing rights. However, § 3631 can be violated before
the owners physically reside in the property. See, e.g.,
White, 788 F.2d at 392 (affirming a conviction under § 3631
where the defendant burned a black family’s home while
it was still under construction); United States v. Anzalone,
555 F.2d 317, 318 (2d Cir. 1977) (affirming a conviction
under § 3631 where the defendant set fire to a black
family’s home before the family moved in).
   Craft also states that he did not interfere with Triplett’s
housing rights because Triplett moved out of the apart-
ment at 311 E. Indiana on the day that Craft set fire to it.
However, § 3631 prohibits interfering with a person “who
is or has been . . . renting . . . a dwelling.” 42 U.S.C. § 3631
(emphasis added). Accordingly, because Triplett had been
renting the residence at 311 E. Indiana up until the day
Craft set fire to it, Craft’s actions were prohibited under
§ 3631.


    B. Counts Four, Five, and Seven
  Craft next claims that the district court erred by denying
his motion for acquittal on counts four, five, and seven,
which charged Craft with violating 18 U.S.C. § 844(i).
Section 844(i) provides,
    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 prop-
    erty used in interstate or foreign commerce or in any
    activity affecting interstate or foreign commerce shall
    be imprisoned for not less than 5 years and not more
    than 20 years . . . .
8                                               No. 06-3524

18 U.S.C. § 844(i). Craft contends that the properties
identified in counts four, five, and seven were not “in or
affecting commerce” as required under the statute.
  The Supreme Court has twice interpreted the scope of
the statute’s “in or affecting commerce” language. In
Russell v. United States, 471 U.S. 858 (1985), the Court
considered whether the arson of a two-unit apartment
building that was used as a rental property fell within the
purview of § 844(i). The Court held that “the statute only
applies to property that is ‘used’ in such ‘activity’ that
affects commerce” and reasoned that “[t]he rental of real
estate is unquestionably such an activity.” Id. at 862. In
its analysis, the Court noted that the original version of
the bill contained the words “for business purposes,” but
that Congress removed such language before enactment
“after considering whether the bill as originally introduced
would cover bombings of police stations or churches . . . .”
Id. at 860. The Court read this legislative history to
suggest “that Congress at least intended to protect all
business property, as well as some additional property
that might not fit that description, but perhaps not every
private home.” Id. at 862. Because the apartments in
the building were rented to tenants at the time of the fire,
the Court concluded that the property was “being used
in an activity affecting interstate commerce.” Id.
  In Jones v. United States, 529 U.S. 848 (2000), the Court
answered the question whether § 844(i) covers the arson
of a private residence. It ruled that § 844(i) does not reach
an owner-occupied residence that is not used for any
commercial purpose. Id. at 852. The Court emphasized
that the qualifying words “used in” mandate that the
damaged or destroyed property must itself have been used
in commerce or in an activity affecting commerce. It then
outlined a two-part inquiry for assessing the applicability
of § 844(i), which entails an analysis of the function of the
building itself and a determination of whether that
No. 06-3524                                               9

function affects interstate commerce. The Court said that
a building used in an activity affecting interstate com-
merce must have more than a passive, passing, or past
connection to commerce. The Court noted that “practically
every building . . . is constructed with supplies that have
moved in interstate commerce, served by utilities that
have an interstate connection, financed or insured by
enterprises that do business across state lines, or bears
some other trace of interstate commerce.” Id. at 857.
Accordingly, the Court ruled that a private residence does
not fit within § 844(i) where its only relationship to
interstate commerce is the receipt of natural gas, a
mortgage, or an insurance policy because such a limited
nexus does not constitute active employment for com-
mercial purposes. With that framework in place, we turn
to the specific counts that Craft challenges.


      1. Count Four (618 E. Broadway) and Count
         Seven (1615 S. Columbia)
  Craft argues that because the 618 E. Broadway and 1615
S. Columbia buildings, both rental properties, were
temporarily unoccupied at the time Craft set fire to them,
they were not being used in an activity that affects inter-
state commerce. He maintains that after Jones, rental
properties must be occupied to fall within the scope of
§ 844(i). We rejected the same argument in Martin v.
United States, 333 F.3d 819, 822 (7th Cir. 2003). In
Martin, a building owner was convicted of setting fire to
his apartment building, which was temporarily unoc-
cupied and partially boarded-up at the time of the fire. The
owner mounted a collateral attack on his conviction,
arguing that Jones limited the reach of the federal arson
statute such that temporarily vacant rental properties
were not covered. We dismissed this argument and stated
that “the temporary suspension of commercial activity
10                                              No. 06-3524

in a building . . . does not permanently remove that
building from the scope of the arson statute.” Id. at 821.
The owner contended that the lack of tenants and presence
of boarded-up windows demonstrated that he no longer
intended to rent the property. Our decision rejected the
owner’s contentions and noted that he had received rental
payments only two months before the fire and had im-
proved the condition of the units even after the tenants
moved out. Id. at 822.
  In this case, the government presented sufficient evi-
dence that 618 E. Broadway was a rental property, despite
the fact that it was temporarily vacant. Specifically, it
offered evidence that the owner, a company named Benefi-
cial, intended to use the property as a rental property
and that Craft himself attempted to rent the property,
but was denied. The government also offered sufficient
evidence that the property located at 1615 S. Columbia
was rental property. Eric Forrest purchased the building
as an investment and renovated it for future rental as
Section 8 low income housing. Although the property had
not yet been listed for rental, Forrest had placed it on the
Section 8 list so that it could be inspected to determine
its eligibility. Because the owners of these properties
did not permanently remove the buildings from the stream
of commerce, they were both within the scope of § 844(i).


      2. Count Five (807 W. Indiana)
  Craft further argues that the government did not
produce sufficient evidence to prove that the property
located at 807 W. Indiana, which was used as a clubhouse
for local members of the Hell’s Angels motorcycle club, was
used in an activity affecting interstate commerce. Courts
have held that a de minimis connection to interstate
commerce is not sufficient to violate the statute. See, e.g.,
United States v. Odom, 252 F.3d 1289, 1296-97 (11th Cir.
No. 06-3524                                              11

2001) (finding that a church which received donations
from out-of-state, made purchases from out-of-state, and
received indirect out-of-state contributions was not being
used in an activity that affected interstate commerce
because the effect was “too minimal, too indirect”); United
States v. Rea, 223 F.3d 741, 743 (8th Cir. 2000) (church’s
use of materials purchased in interstate commerce insuf-
ficient to meet interstate commerce test).
   By contrast, where a property is actively employed
for commercial purposes, the interstate commerce ele-
ment may be met if the connection to interstate commerce
is both continuing and substantial. See, e.g., United States
v. Laton, 352 F.3d 286, 301 (6th Cir. 2003) (holding that a
fire station’s role in fighting fires constituted an active,
rather than a passive employment in interstate com-
merce); United States v. Rayborn, 312 F.3d 229, 234-35
(6th Cir. 2002) (holding that the interstate commerce
nexus was satisfied where a church broadcasted radio
messages by renting out time from various stations to
increase attendance and contributions from out-of-state,
drew members from three states, paid salaries, and hosted
gospel concerts featuring out-of-state talent); United
States v. Terry, 257 F.3d 366, 370 (4th Cir. 2001) (holding
that a church with a daycare center that was open from
7:00 am to 5:30 pm Monday through Friday and employed
its own teachers and charged a fee of $706 per month
satisfied the interstate commerce test).
  After reviewing the record, we conclude that the govern-
ment offered insufficient evidence that the Hells Angels
clubhouse was used in an activity that affects inter-
state commerce. Jack Kendall, a former president of the
Indiana chapter of the Hells Angels, stated that the
property was used as a clubhouse for Hells Angels mem-
bers “for [once-a-month] meetings and basically just
parties of our own.” Kendall testified that the members
paid dues at the monthly meetings. When asked “where
12                                            No. 06-3524

are those dues sent to,” Kendall replied “the dues aren’t
sent nowhere. They stay right in the charter to help pay
for the expense of the building, the property, and stuff
like that.” Kendall also testified, however, that the dues
are used to reimburse club members for trips across state
lines. He stated that each of the affiliate clubs send
representatives to funerals when a Hells Angels member
dies and that he was once a representative at a funeral
in Germany. He also testified that members went to
rallies in South Dakota, and that the owner of the prop-
erty was HAMC, Inc., which is incorporated in Oakland,
California.
  Although some of the members’ dues were used to
reimburse them for trips taken across state lines, any
affect that those dues had on interstate commerce was
too passive, too minimal, and too indirect to place the
clubhouse property in § 844(i)’s reach. Indeed, reimbursing
members for travel is comparable to the out-of-state
purchases made by the churches in Odom and Rea.
Without further evidence that the Hells Angels members
actively employed the clubhouse for commercial purposes,
no jury reasonably could conclude that the clubhouse
was used in a manner that affected interstate commerce.


                   III. CONCLUSION
  For the above reasons, we AFFIRM Craft’s conviction on
counts two, four, seven, and nine, REVERSE Craft’s con-
viction on count five, and REMAND to the district court
for re-sentencing.
No. 06-3524                                        13

A true Copy:
      Teste:

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




               USCA-02-C-0072—5-1-07
