                        United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 03-2855SD
                                   _____________

United States of America,                *
                                         *
                 Appellee,               *
                                         * On Appeal from the United
       v.                                * States District Court
                                         * for the District of
                                         * South Dakota.
R. J. S., Jr.,                           *
                                         *
                 Appellant.              *
                                    ___________

                               Submitted: February 10, 2004
                                  Filed: May 6, 2004
                                   ___________

Before RILEY and RICHARD S. ARNOLD, Circuit Judges, and HOVLAND,1 Chief
      District Judge.
                             ___________

RICHARD S. ARNOLD, Circuit Judge.

      R. J. S., Jr., a juvenile, was convicted of violating 18 U.S.C. § 844(e) for his
use of a telephone to communicate a false threatening message. He was sentenced
to two years' probation. On appeal, defendant argues that the telephone call was a
wholly intrastate activity and, therefore, that Congress had no power to regulate it
under the Commerce Clause. We reject this argument and affirm the judgment of the

       1
       The Hon. Daniel L. Hovland, Chief Judge, United States District Court for the
District of North Dakota, sitting by designation.
District Court.2 We hold that the commerce power reaches wholly intrastate
telephone calls, so long as the calls are made with telephones connected to an
interstate telephone system.

       On February 10, 2003, the Pine Ridge School placed R. J. S., Jr., and two other
students in the school's detention room, which is equipped with a telephone
connected to a ten-digit interstate number. At approximately 11:15 a.m., a call was
made from the detention-room telephone to the school secretary's telephone, which
is connected to a separate ten-digit interstate number. A school counselor answered
the call to the secretary's telephone and heard R. J. S., Jr., threaten to blow up the
building.

       Defendant argues that the telephone he used to communicate the threat falls
outside the legitimate scope of 18 U.S.C. § 844(e) because the call was placed and
received within the school and, therefore, it did not require the use of an interstate
telephonic system. We disagree. Under the plain language of § 844(e), defendant
need only use an "instrument of interstate commerce" to establish a sufficient nexus
to interstate commerce. We have previously held that a telephone, regardless of
whether it is used to make an interstate or intrastate call, is an instrument of interstate
commerce. See United States v. Corum, ___ F.3d ___, ___, 2004 WL 718930 (8th
Cir. 2004) (holding that the intrastate use of a telephone to communicate bomb threats
to three houses of worship satisfies the interstate-commerce element of 18 U.S.C. §
844(e)), and Myzel v. Fields, 386 F.2d 718, 727-28 (8th Cir. 1967) (holding that the
intrastate use of a telephone to violate federal securities laws satisfies the interstate-
commerce element of the Securities Exchange Act of 1934). Other Circuits that have
addressed this issue have ruled similarly. See United States v. Marek, 238 F.3d 310,
318 n.35 (5th Cir. 2001); United States v. Gilbert, 181 F.3d 152, 158 (1st Cir. 1999);


      2
      The Hon. Richard H. Battey, United States District Judge for the District of
South Dakota.

                                           -2-
United States v. Weathers, 169 F.3d 336, 341 (6th Cir. 1999); and United States v.
Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997).

       Regardless of whether the call defendant made within the school required the
use of an interstate telephonic system, both telephones were connected to an interstate
telephonic system. Both were connected to separate ten-digit interstate numbers. In
addition, defendant's call made both telephones unavailable to outside, interstate
contact. Thus, we hold that the telephone defendant used to communicate the threat
was an instrument of interstate commerce as that phrase is used in § 844(e). It was
therefore subject to federal regulation and protection, United States v. Lopez, 514
U.S. 549, 558 (1995), and therefore was within the power of Congress to regulate
under the Commerce Clause.

      The judgment of the District Court is affirmed.
                     ______________________________




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