                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-2546
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Minnesota.
Harvey Andrew Rea,                        *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: May 30, 2000
                                  Filed: August 11, 2000
                                   ___________

Before MURPHY, JOHN R. GIBSON, and MAGILL, Circuit Judges.
                           ___________

MAGILL, Circuit Judge.

      This case arises out of an arson committed, in part, by Harvey Rea (Harvey).
Following his capture by authorities, Harvey pleaded guilty to conspiracy to commit
arson in violation of 18 U.S.C. §§ 371, 844(i). In United States v. Rea, 169 F.3d 1111
(8th Cir. 1999) (Rea I), we rejected Harvey's claim that his conduct did not satisfy the
jurisdictional requirement of the arson statute, 18 U.S.C. § 844(i), and affirmed his
conviction. Subsequently, Harvey's petition for writ of certiorari was granted by the
Supreme Court and our decision in Rea I was vacated and the case remanded from the
Supreme Court in light of its decision in Jones v. United States, 120 S. Ct. 1904 (2000).
See Rea v. United States, 120 S. Ct. 2193 (2000). On remand, we reverse Harvey's
conviction and remand to the district court for further proceedings consistent with this
opinion.

                                 I. BACKGROUND

        On July 12, 1997, Harvey and Jeremy Rea (Jeremy) broke into the basement of
the St. James A.M.E. Church (Church) annex, a building used by the Church for
education and other activities, and stole a computer. In an attempt to destroy evidence
of the crime, Jeremy ignited a fire in the basement of the Church annex. The fire
destroyed the music teaching area, including an organ, piano, curriculum materials, and
literature.

       Harvey and Jeremy were charged in a two-count indictment with conspiracy to
commit arson in violation of 18 U.S.C. §§ 371, 844(i) and aiding and abetting in the
commission of arson in violation of 18 U.S.C. §§ 2, 844(i). After Jeremy agreed to
cooperate with the government and pleaded guilty to being an accessory after the fact
in the arson, Harvey conditionally pleaded guilty to the conspiracy count of the
indictment, reserving the right to appeal the district court's denial of his motions to
dismiss the indictment for lack of subject matter jurisdiction or, in the alternative, to
enter a judgment of acquittal.

                                    II. ANALYSIS

       In order for federal courts to have jurisdiction over arson offenses, the following
requirements of § 844(i) must be met:

             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 property used in interstate or foreign commerce or
      in any activity affecting interstate or foreign commerce shall be


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      imprisoned for not less than 5 years and not more than 20 years, fined
      under this title, or both . . . ."

In Rea I, we said that "[i]n enacting section 844(i), Congress intended to exercise its
full power under the Commerce Clause of the Constitution." 169 F.3d at 1113 (quoting
United States v. Ryan, 41 F.3d 361, 364 (8th Cir. 1994) (en banc)). We, therefore,
found that "section 844(i) reaches arson of any property having even a de minimis
connection to interstate commerce." Rea, 169 F.3d at 1113 (quoting Ryan, 41 F.3d
at 364). Applying the de minimis standard to the facts of the case in Rea I, we found
that the "Church school's use of materials purchased in interstate commerce, coupled
with its use of natural gas from an out-of-state source, satisfy the jurisdictional element
of section 844(i)." 169 F.3d at 1113.

        The Supreme Court's decision in Jones has substantially changed the law of the
Eighth Circuit regarding the reach of § 844(i). Contrary to Eighth Circuit precedent,
in Jones the Supreme Court held that in enacting § 844(i), Congress did not intend to
exercise its full power under the Commerce Clause of the Constitution. See Jones, 120
S. Ct. at 1909. The Court noted that § 844(i) contains the qualifying words "used in"
a commerce-affecting activity, which it interpreted as qualifying the term "affecting . . .
commerce." Id. Under the new standard, to meet the requirements of § 844(i), the
building must have been used in commerce or in an activity affecting commerce. See
id. at 1910. The proper inquiry involves a two-step test involving an inquiry into the
function of the building itself, and then a determination of whether that function affects
interstate commerce. See id. While the destruction of a building might affect interstate
commerce, the building itself must have been used in commerce or in an activity
affecting commerce to meet the requirements of § 844(i). See id. at 1909-10.

       Clearly, our reliance in Rea I on the Church's use of materials purchased in
interstate commerce and its use of natural gas from an out of state source is an
insufficient basis for a finding that the Church annex was "used in" a commerce


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affecting activity under § 844(i). See id. at 1910. Also insufficient to meet the
requirements of § 844(i) is the fact that the property in question is church property. In
Rea I, we noted that the legislative history of § 844(i) indicates that Congress intended
for § 844(i) to cover the destruction of church property. See Rea, 169 F.3d at 1113.
However, there are several reasons why § 844(i) cannot be construed as encompassing
the destruction of all church property regardless of its degree of connection to interstate
commerce. In Russell v. United States, 471 U.S. 858 (1985), the Supreme Court
acknowledged that the legislative history of § 844(i) indicated an intent to include
churches within the statute, see id. at 860-61, but noted that "[b]y its terms . . . the
statute only applies to property that it 'used' in an 'activity' that affects commerce." Id.
at 862. The requirement that all buildings must be "used in" commerce in order to meet
the requirements of § 844(i) was affirmed by the Court in Jones. See Jones, 120 S. Ct.
at 1920. Moreover, a contrary holding would violate the principle that courts are to
adopt constructions of statutes that avoid grave and doubtful constitutional questions,
see id. at 1911, and the principle that ambiguity concerning the ambit of a criminal
statute should be resolved in favor of the narrower interpretation of the statute, see id.
at 1912; see also Brian Slocum, RICO and the Legislative Supremacy Approach to
Federal Criminal Lawmaking, 31 Loy. U. Chi. L.J. 639, 662-81 (2000) (explaining the
rule of lenity).

       While § 844(i) does not exclude any particular type of building, see Jones, 120
S. Ct. at 1910, in order to fall within the ambit of § 844(i), the Church annex must be
a building that has an "active employment for commercial purposes, and not merely a
passive, passing, or past connection to commerce." Id. However, because of
insufficient fact finding at the district court level on the issue of the Church annex's
commercial connection, we are unable to determine from the record whether the
Church annex meets the requirements mandated by Jones. Therefore, it is necessary
to remand this case to the district court for a determination of whether the Church
annex was used in commerce or in an activity affecting commerce under § 844(i).


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                               III. CONCLUSION

      In sum, for the reasons explained above, we reverse Harvey Rea's conviction and
remand the case to the district court for further proceedings consistent with this
opinion.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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