                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2002

USA v. Williams
Precedential or Non-Precedential: Precedential

Docket No. 01-3351




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PRECEDENTIAL

       Filed July 30, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-3351

UNITED STATES OF AMERICA,

v.

SHAWN P. WILLIAMS,
       Appellant

Appeal from the United States District Court
For the Western District of Pennsylvania
D.C. No.: 99-cr-00195
District Judge: Honorable Robert J. Cindrich

Argued: June 14, 2002

Before: ROTH, RENDELL, ROSENN, Circuit Judges

(Filed July 30, 2002)

       Christopher A. Feliciani (Argued)
       Berk, Whitehead, Kerr, Feliciani
        & Turin
       115 North Main Street
       Greensburg, PA 15601
        Counsel for Appellant

       Bonnie R. Schlueter (Argued)
       Office of United States Attorney
       633 United States Post Office
        & Courthouse
       Pittsburgh, PA 15219
        Counsel for Appellee




OPINION OF THE COURT

ROSENN, Circuit Judge.

The common law felony of arson was a crime "against
another’s habitation, not against another’s property but
against his life and safety at his place of abode." State v.
Midgeley, 105 A.2d 844, 845 (NJ 1954). Historically, the
states prosecuted the crime of arson not only under
common law but also under statutes that expanded its
reach. With the passage of the Anti-Arson Act of 1982, Pub.
L. 97-298, 96 Stat. 1319 (1982), Congress stated clearly
"that federal authorities will henceforth share responsibility
with state officials to investigate and prosecute arson
crimes." United States v. Gelb, 700 F.2d 875, 879 (2nd Cir.
1983). Specifically, Congress enacted legislation making it a
federal crime to maliciously damage or destroy by fire any
building used in interstate commerce or in any activity
affecting interstate commerce. 18 U.S.C. S 844(i).1 The
primary issue raised on this appeal, one of first impression
in this circuit, is whether the arson of a vacant building
available for rent but not actually leased at the time of the
fire sufficiently affects interstate commerce as to constitute
a federal crime.

A jury in the United States District Court for the Western
District of Pennsylvania convicted Shawn Williams of
malicious destruction of property by fire in violation of
S 844(i), and mail fraud in violation of 18 U.S.C. S 1341.
The District Court sentenced Williams to 60 months’
imprisonment followed by 60 months of supervised release
on both counts, to run concurrently. The defendant timely
appealed the judgment of conviction and sentence. We
affirm.2
_________________________________________________________________

1. 18 U.S.C. S   844(i) provides: "Whoever maliciously damages or destroys
. . . by means   of fire . . . any building . . . used in interstate . . .
commerce or in   any activity affecting interstate . .. commerce shall be
imprisoned for   not less than 5 years and not more than 20 years."

2. We have appellate jurisdiction pursuant to 28 U.S.C. S 1291.

                                  2


I.

In the early morning hours of September 23, 1998, a
street sweeper smelled and saw smoke rising from the roof
of the former state unemployment office on West Otterman
Street (Otterman building) in Greensburg, Pennsylvania.
Eventually, the fire department brought the fire under
control and a fire investigator concluded that the fire had
been intentionally set.

Police officer Paul Cyak found four fuel containers in the
vacant Otterman building. One of the containers was a blue
kerosene-type can with a Sheetz convenience store label
with code numbers on it. The can had been delivered to
Sheetz in New Stanton, Pennsylvania, late in the evening of
September 22, 1998, and it was purchased at 1:32 a.m. on
the morning of the fire. The New Stanton Sheetz store was
located between Williams’s home and the Otterman
building.

Officer Cyak learned that in April 1998, Williams and Nat
Lamolinara, his ex-business partner, acquired the building
for $111,000. Williams and Lamolinara made a down
payment of $11,000; Lhormer Realty held the remainder of
the mortgage.

From April 1998 until the September 1998 arson,
Williams displayed a large banner on the front of the
building advertising its availability for rent. He also
advertised the property for rent in a local newspaper.
During that period, Lamolinara had on several occasions
shown the building to potential tenants. Thomas, at
Williams’s behest, had also shown the building to
Primestar-Excalibur (Primestar), a satellite television
company with headquarters in Virginia.

On September 22, 1998, the evening before the Otterman
building burned down, Primestar and Williams had
negotiated the terms of an agreement to lease the building.
Later that evening, Williams faxed the proposed lease to
Louis Busato, Primestar’s Northeast Regional Sales
Manager, who then forwarded the lease to corporate
headquarters. Upon corporate approval of the lease, it
would have taken effect on September 25, 1998. During the
weeks leading up to the arson, Primestar had stopped

                                3


looking for other buildings because its "heart was set on
this place." Busato planned on moving employees into the
building within two to four days of signing the lease.

Although the purchase price for the building was
$111,000, it was insured by Lebanon Mutual Insurance
Company (Lebanon Mutual) for its replacement value at
approximately $500,000. Lebanon Mutual settled Williams’s
claim, paying $336,000 to Williams and Lhormer Realty,
holder of the mortgage. Lebanon Mutual also paid Williams
another $64,000 for the cost of removing the debris from
the land.

In due course, the Government charged Williams with
and convicted him of malicious destruction of property by
fire in violation of 18 U.S.C. S 844(i), and mail fraud in
violation of 18 U.S.C. S 1341.

II.

Williams raises three issues on appeal: (1) there was
insufficient evidence to satisfy S 844(i)’s affecting interstate
commerce element; (2) the District Court’s jury instruction
was plain error; and (3) Congress’s failure to provide a
"safety valve" for first time offenders underS 844(i) violates
the equal protection component of the Fifth Amendment’s
Due Process Clause. We now turn to the first issue and
begin our discussion of the interstate commerce element of
the offense.

A property’s use in an activity affecting interstate
commerce is an essential element of the crime of arson
under 18 U.S.C. S 844(i). United States v. McGuire, 178 F.3d
203, 205 (3d Cir. 1999). Like all elements of criminal
offenses, the Government must prove the jurisdictional
element beyond a reasonable doubt. Id. Williams argues
that there was insufficient evidence to establish a sufficient
connection between the Otterman building and interstate
commerce.3 Because the jury convicted Williams, we review
_________________________________________________________________
3. Williams frames the question in terms of federal subject matter
jurisdiction. The District Court, however, properly exercised jurisdiction.
United States v. Carr, 271 F.3d 172, 178 (4th Cir. 2001) ("[T]he

                                4


the evidence in the light most favorable to the Government
and will sustain the verdict unless a rational juror could
not have found that the Government proved the affecting
interstate commerce element beyond a reasonable doubt.
United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998).

Williams asserts that the destruction by fire of a vacant
building is "clearly a local activity" that is not the concern
of the federal government. He, therefore, argues that
according to United States v. Lopez, 514 U.S. 549 (1995),
for such local activity to become a concern for the federal
government, the activity must substantially affect
commerce and that a property advertised for rent does not
substantially affect commerce.

The federal arson statute, although it does not regulate
commercial or economic activity, regulates the damage and
destruction of business property that has the requisite
interstate nexus. Lopez "did not purport to overrule cases
upholding application of the Commerce Clause power to
wholly intrastate activities satisfying the requisite nexus to
interstate commerce." United States v. DiSanto, 86 F.3d
1238, 1245 (1st Cir. 1996). And, as the United States
Supreme Court noted in Lopez, the statute there did not
contain a jurisdictional element that "would ensure,
through case-by-case inquiry, that the [crime] in question
affects interstate commerce." 514 U.S. at 561. Here,
however, the statute contains such an element.
Accordingly, our analysis is governed by the Supreme
Court’s opinion in Jones v. United States, 529 U.S. 848
(2000), which specifically addressed this aspect ofS 844(i).
_________________________________________________________________

‘jurisdictional element’ is merely one element of the criminal activity . . .
and whether it is demonstrated in an individual circumstance does not
affect a court’s constitutional or statutory power to adjudicate a case.")
(internal quotations omitted); see also United States v. Gaydos, 108 F.3d
505, 509 (3d Cir. 1997) ("[W]e join the other circuits which have
concluded that S 844(i) remains constitutionally viable after Lopez.").
Williams argues instead that the evidence was insufficient to satisfy the
interstate commerce element of the offense. Gaydos, 108 F.3d at 509
("[Defendant’s] best argument is that the evidence was insufficient to
satisfy the interstate commerce nexus necessary to support her
conviction under S 844(i).").

                                5


In Jones, the Court addressed the question of whether
arson of an "owner-occupied private residence" falls within
S 844(i)’s ambit. The Court held that arson of such a
dwelling is not subject to federal prosecution underS 844(i).
Id. at 850-51. The Court noted that it had previously held
in Russell v. United States, 471 U.S. 858 (1985), that
S 844(i) applies to buildings used as rental property. Id. at
853; Russell, 471 U.S. at 862 ("By its terms . . . the statute
only applies to property that is ‘used’ in an‘activity’ that
affects commerce. The rental of real estate is
unquestionably such an activity."); accord Gaydos, 108
F.3d at 509 ("Russell established that renting real estate is
an activity that affects interstate commerce for purposes of
S 844(i)."). The dispositive factor in Russell was the owner’s
"renting his apartment building to tenants at the time he
attempted to destroy it by fire." Jones, 529 U.S. at 853
(internal quotations omitted). Accordingly, it followed that
the building was being used in an activity affecting
commerce within the meaning of S 844(i). Id.

The Jones Court contrasted Russell’s facts with Jones’s.
The Court focused on S 844(i)’s use of the phrase "used in
interstate or foreign commerce," finding that the key word
is "used." Id. at 854. The Court stated that Congress did
not define S 844(i)’s crime as arson of a building whose
damage might affect interstate commerce, but rather
"require[d] that the damaged or destroyed property must
itself have been used in commerce or in an activity affecting
commerce." Id. (alteration in original) (internal quotations
omitted).

Thus, the proper inquiry is an analysis of the "function of
the building itself, and then a determination of whether
that function affects interstate commerce." Id. (internal
quotations omitted). The Court ruled that the word"used"
is "most sensibly read to mean active employment for
commercial purposes, and not merely a passive, passing, or
past connection to commerce." Id. at 855. It held that
private, owner-occupied residences are not used in
activities affecting interstate commerce and that arson of
such buildings therefore does not fall under S 844(i)’s reach.
Id. at 856-58.

                                6


In the instant case, Williams focuses on the Supreme
Court’s discussion regarding the word "used" and argues
that, because the Otterman building had not been leased at
the time of the fire,4 it was not, under Jones, being actively
employed for commercial purposes. We reject this
argument. Gaydos is instructive.

Gaydos involved a defendant who argued that the house
she burned down was not rental property because at the
time of the arson it was vacant, uninhabitable, and she had
no intention of renting it again. 108 F.3d at 507. We agreed
with the defendant, holding that the trial record did not
support a finding that the house at issue remained in or
was intended to return to the stream of commerce. Id. at
510. We first noted that the record demonstrated that all
tenants had vacated the house and that the house was
uninhabitable at the time of the arson. Id. We then stated
that there was no evidence that the defendant had any
intent to improve the living conditions in the building. Id.
Finally, we found no evidence rebutting the defendant’s
contention that the house had "been permanently removed
from the rental market and had no prospect of generating
any future rental revenue." Id. at 510-11.

Although ruling in favor of the defendant, in dicta we
stated that a temporary cessation of activity at a business
property does not place the property beyond the reach of
S 844(i). Id. at 509 ("This argument has been accepted by
every Court of Appeals that has addressed the issue.");
accord United States v. Martin, 63 F.3d 1422, 1427 (7th Cir.
1995) (holding property vacant and not rented for three
months but still available for rent did not lose its
commercial character by virtue of the temporary cessation
_________________________________________________________________

4. At oral argument Williams repeatedly referred to the Otterman
building as "abandoned." "Abandoned property" is defined by Black’s
Law Dictionary as "[p]roperty that the owner voluntarily surrenders,
relinquishes, or disclaims." BLACK’S LAW DICTIONARY 1233 (7th ed. 1999).
Williams actively sought to lease the building in the months before the
arson. He did not -- voluntarily or otherwise-- surrender, relinquish, or
disclaim his interest in the building. Therefore, the Otterman building
was not an abandoned building, but was an unoccupied building
available for rent.

                                7


of activity). We thus interpreted the collective case law as
suggesting 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.

Gaydos, 108 F.3d at 510. In contrasting Gaydos’s holding
with other cases, we stated that

       in each of th[o]se cases, however, there was a clear
       intention that the property at issue either remain in, or
       return to, the stream of commerce. . . . [T]he trial
       records in th[o]se cases demonstrate that the particular
       properties were treated by their owners as if they had
       never left the stream of commerce.

Id.

Here, in contrast to Gaydos, a reasonable trier of the
facts could have concluded that Williams intended the
building, at the very least, to return to the stream of
commerce. He actively pursued such a course. Evan
Thomas, the building’s former owner, testified that, from
April 1998 until the September 1998 arson, there was a
sign in front of the Otterman building advertising office
space for lease. Lamolinara, Williams’s ex-business partner,
testified that there was a banner advertising space for
lease, and an advertisement for the same in a local
newspaper. Lamolinara also testified that he had shown the
building "several times . . . to potential tenants." Thomas
testified that he had, at Williams’s behest, shown the
building to Primestar.

Furthermore, Louis Busato, Primestar’s Northeast
regional manager, testified that he and Williams had
negotiated terms to lease the Otterman building. Indeed,
the proposed lease had been drafted by Williams and faxed
over the evening before the building burned down. The
arson occurred on September 23, 1998; the lease was
supposed to commence on September 25, 1998. Busato

                                8


planned to move employees into the building within two to
four days of signing the lease because conditions were so
cramped at their present location. Primestar had even
stopped looking for a building because its "heart was set on
this place." Thus, Primestar relied on its belief that it would
soon occupy the Otterman building and terminated its
search for other rental space. It can be reasonably assumed
that Primestar, a Virginia corporation negotiating to lease
Pennsylvania property, had its interstate commercial
activities disrupted when it learned of the destruction of the
Otterman building. A rational trier of the facts could find
that this satisfied the requisite interstate commerce nexus.

On the other hand, Williams asserts that United States v.
Ryan, 227 F.3d 1058 (8th Cir. 2000), supports his position.
Ryan involved the arson of a permanently closed fitness
center. The Court held that an earlier panel’s conclusions
that the Fitness Center was (1) about to be placed on the
market for sale, and (2) had the potential for commercial re-
entrance, did not satisfy the interstate commerce element of
S 844(i). Id. at 1063-64. The Court noted that the property
"was not formally listed for sale or rent at the time of the
fire." Id. at 1060. This case is completely different.

In contrast with the building in Ryan, Williams’s
Otterman building was available for rent at the time of the
fire; the lease execution was in the process of
consummation. Moreover, the conclusion that the interstate
commerce element is satisfied is not based merely on
predictions of the building entering commerce or its
potential for commercial re-entrance, but rather is based on
the Otterman building’s actual entrance on the market: it
had been available for rent for the six months preceding the
arson. Ryan, therefore, is not on point.

Williams’s argument ultimately hinges on an overly-literal
and narrow definition of the word "used." As the
Government points out, "[t]he logical extension of this
would be a holding that federal jurisdiction does not attach
at night, because the business employees are at home
sleeping, and no one is actually putting the building itself
to active use in interstate commerce." The District Court
wisely noted the sophistry of Williams’s argument when it
inquired: "[S]uppose the tenant signed the lease but doesn’t

                                9


move into the building next week? Would we say then it’s
not actively in interstate commerce?" As Gaydos suggests,
"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 [interstate
commerce] nexus" exists. 108 F.3d at 510. Here, the
evidence of Williams’s leasing activities established the
business nature of the Otterman building before its arson.
Accordingly, there was sufficient evidence for a reasonable
trier of the facts to conclude that the interstate commerce
nexus had been satisfied.

III.

Williams further argues that the District Court erred in
its jury instructions. Because Williams did not raise the
objection at trial, we reverse only if we find plain error.
United States v. Wolfe, 245 F.3d 257, 260-61 (3d Cir. 2001).
The plain error standard is satisfied when the District
Court’s error is obvious or clear and is deemed to have
affected the substantial rights of the party. Id. at 261. An
error affects the substantial rights of a party if it is
prejudicial. Id.

Under plain error review, the defendant bears the burden
of establishing that the error prejudiced the jury’s verdict.
Id. Even if the defendant establishes plain error, Federal
Rule of Criminal Procedure 52(b) provides this Court with
discretion whether to correct the error.5 Id. We are not
required to correct the error. Id. Instead, we reverse when
the defendant is actually innocent or where, regardless of
the defendant’s innocence, the error "seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings." Id. (alteration in original) (internal quotations
omitted).

Williams asserts that the District Court committed plain
error by instructing the jury to determine whether the
_________________________________________________________________

5. The rule provides: "Plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the
court."

                                10


property was used in "an activity affecting interstate
commerce" rather than modifying "commerce" with the
word "substantial" to track Lopez’s language. The
instructions, however, must be looked at as a whole in
order to determine whether the jury was apprised of the
issues and applicable law. Limbach Co. v. Sheet Metal
Workers Int’l Ass’n, 949 F.2d 1241, 1259 n.15 (3d Cir.
1991).

The District Court instructed the jury as follows:

        The word "commerce" refers to all of the various
       types of economic relationships which may exist
       between parties, such as buying, selling, bartering or
       renting. . . . .

        The phrase "interstate commerce" means commerce
       which affects more states than one. . . . It also includes
       activities wholly within a given state, but which ha[ve]
       a substantial effect on commerce between or among
       the states.

        The phrase "used in interstate commerce or used in
       an activity affecting interstate commerce" means active
       employment for commercial purposes, and not merely
       a passive, a passing, or a past connection to
       commerce.

        The determination of whether property is used in
       interstate commerce or in an activity affecting
       interstate commerce, should focus on the function of
       the property and whether that function affects
       interstate commerce.

        In this case, you must make a   determination as to
       the function of the [Otterman]   building . . . at the time
       of the fire, and then you must   make a determination of
       whether that function affected   interstate commerce.

The Court’s instructions tracked S 844(i)’s language.
Section 844(i)’s language refers to destroying a building
used "in any activity affecting interstate or foreign
commerce." Thus, the statutory language lacks Lopez’s
"substantial" modifier, and speaks only of an activity
affecting -- not necessarily substantially affecting --
interstate commerce. Indeed, the District Court started this

                                11


part of its instruction by quoting the statutory language by
referring to "[t]he phrase ‘used in interstate commerce or
used in an activity affecting interstate commerce.’ "
Therefore, in the subsequent instructions, the Court spoke
of the jury’s responsibility, pursuant to S 844(i)’s statutory
language, to determine whether "property is used in
interstate commerce or in an activity affecting interstate
commerce."

Post-Lopez case law from the Supreme Court also speaks
in terms of "affecting commerce," and not"substantially
affecting commerce." In Jones, the Court noted that
Congress required that the destroyed property have been
used in an activity affecting commerce before such arson is
covered under S 844(i). 529 U.S. at 854. It framed the
inquiry as one aimed at determining whether the function
of the building "affects interstate commerce." Id. (internal
quotations omitted). Even in the post-Lopez environment,
the Supreme Court did not interpolate "substantial" into
S 844(i)’s language.

Furthermore, it is doubtful that lay jurors comprehend
the distinction between activities that affect interstate
commerce and activities that substantially affect interstate
commerce. Because S 844(i)’s affecting interstate commerce
provision is an element of the criminal offense, a defendant
is entitled to a jury determination of whether the element
has been satisfied beyond a reasonable doubt. Apprendi v.
New Jersey, 530 U.S. 466, 477 (2000). As a matter of law,
however, arson of an unoccupied building available for rent
is sufficient to satisfy S 844(i)’s jurisdictional element.
Therefore, the significant factual question put to the jury
was whether the building was available for rent at the time
of the arson. On appeal, Williams does not dispute that the
building was available for rent.

A District Court’s instruction tracking the exact language
of a statute is not plain error, or indeed error at all.
Moreover, even if it were error, there is no evidence
establishing Williams’s innocence.

IV.

Finally, Williams argues that S 844(i) violates the Fifth
Amendment’s equal protection component because it does

                                12


not provide him with access to 18 U.S.C. S 3553(f). Section
3553(f) is a safety valve provision that permits"less
culpable defendants in drug-related crimes who fully assist
the Government to avoid the application of the mandatory
minimum sentence." United States v. Pratt, 87 F.3d 811,
812-13 (6th Cir. 1996). Williams’s argument is devoid of
merit.

We apply rational basis review to Williams’s
constitutional challenge. United States v. Hawkins, 811
F.2d 210, 216 (3d Cir. 1987). We will uphold the legislation
if it bears a rational relation to a legitimate Government
purpose. Id. Legislation is irrational if it creates a
classification wholly irrelevant to achieving its objective. Id.

Section 3553(f) provides a safety valve for some drug
offenders, so that they can avoid draconian mandatory
minimum sentences. There are five factors that must be
satisfied before a drug offender has access to the safety
valve. Assuming arguendo that S 3553(f) applies to federal
arson, two of the conditional factors make Williams
ineligible for the provision. First, the defendant must not
have used violence in connection with the offense. 18
U.S.C. S 3553(f)(2). Arson is, however, an inherently violent
act, and Williams therefore cannot satisfy that condition.
Second, the defendant must have "truthfully provided to
the Government all information and evidence the defendant
has concerning the offense." 18 U.S.C. S 3553(f)(5). Williams
has yet to admit his culpability and has not provided the
Government with any information relating to the offense.
Thus, he cannot satisfy that condition. Accordingly, even
assuming Williams’s eligibility for the safety valve, he does
not satisfy two of the five prerequisites.

However, Congress plainly had a rational basis for not
providing a safety valve for federal arson. As the District
Court held, providing a safety valve for nonviolent first-time
drug offenders has a rational relationship to the legitimate
Government goal of providing exceptions to draconian
mandatory minimum sentences for such individuals. On
the other hand, held the Court, it is entirely rational that
Congress would not create such an exception for arson,
"which is an extremely dangerous and violent offense," and
by definition is excluded from the safety valve. The Court

                                13


cogently continued: "Arson is not a nonviolent offense. For
that reason, it seems to the Court clear that Congress saw
a rational distinction between drug offenses carried out in
some nonviolent way and crimes which by their very nature
involve violence."

Skinner v. Oklahoma, 316 U.S. 535 (1942), which
Williams cites, is of no avail and indeed even cuts against
him. Skinner involved an Oklahoma practice of sterilizing
habitual criminals. Id. at 536-37. The Court noted that the
equal protection clause does not prevent legislatures from
recognizing degrees of evil, and legislating accordingly. Id.
at 540. A state need not ignore experience that marks a
class of offenders or offenses for special treatment. Id. The
Court, however, distinguished Skinner’s facts: "We are
dealing here with legislation which involves one of the basic
civil rights of man." Id. at 541. Therefore, the Court held
that strict scrutiny applied and invalidated the law. Id. at
541-42.

Williams’s equal protection challenge, in contrast to
Skinner, does not concern a basic civil right; it is not
subject to strict scrutiny, but to a rational basis review.
Congress rationally could have concluded that it did not
want to provide a safety valve for first-time violent
offenders. Indeed, as noted earlier, even first-time drug
offenders are not eligible for the safety valve if the crime
involved violence. Congress’s decision to deny a safety valve
for first-time violent offenders rationally relates to its
legitimate interest in providing such a safety valve for first-
time non-violent drug offenders. Accordingly, the District
Court did not err in ruling that S 844(i)’s lack of a safety
valve does not violate the equal protection component of the
Fifth Amendment’s Due Process Clause.

V.

In summary, the Government produced sufficient
evidence to satisfy the interstate commerce element and
convict Williams of violating S 844(i). Furthermore, the
District Court committed no reversible error in its jury
instruction or in holding that S 844(i) does not violate Fifth

                                14


Amendment equal protection. Accordingly, the District
Court’s judgment will be affirmed.

A True Copy:
Teste:

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

                                15
