United States District Court, Northern District of Illinois, E.D
April 25, 1983
UNITED STATES OF AMERICA, PLAINTIFF,
ROBERT RUSSELL, DEFENDANT.
The opinion of the court was delivered by: Getzendanner, District Judge:
MEMORANDUM OPINION AND ORDER
Defendant Robert Russell moves to dismiss the one-count
indictment pending against him for failure to allege a crime
punishable under the federal arson statute, 18 U.S.C. § 844(i).
On the basis of the facts stated in the Government's responsive
memorandum (construed as an offer of proof), this motion is
The Government hopes to prove at trial that Russell
maliciously attempted to damage or destroy, by means of fire
or explosive, a two-unit apartment building situated at 4530
South Union Street in Chicago. The Government further hopes to
establish that Russell resides at 11361 South Lawndale in
Chicago, and that he owns the property at 4530 South Union for
the purpose of renting it to the public. Evidence will
apparently also be tendered that Russell owns at least three
other rental properties, which, in combination with the South
Union building, house numerous tenants who together pay the
defendant approximately $1,900 a month in rent.
As to the property on South Union Street, the Government
plans to show that at the time of the alleged acts, one unit
of the building was rented to a family not related to Russell.
The rent charged was $225 a month. Apparently, the second unit
was unoccupied. Natural gas originating in states other than
Illinois was used to heat the premises at the time of the
The pertinent federal statute, 18 U.S.C. § 844(i), seeks to
punish "[w]hoever 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." The Government contends that
by proving the facts outlined above it will have shown that
Russell "attempt[ed] to damage or destroy, by means of fire or
an explosive, any building . . . used in . . . any activity
affecting interstate or foreign commerce." Russell responds
that since the subject premises were not used for "commercial"
purposes, the necessary connection to interstate commerce
cannot be shown.
The jurisdictional portion of the statute relied upon in the
indictment plainly obligates the Government to prove three
facts: first, that the attempted arson pertained to "any
building"; second, that an "activity affecting interstate or
foreign commerce" existed; and third, that the subject
building was "used in" that activity. The Government's
proposed proof addresses each of these factors.
The property at 4530 South Union clearly falls within the
"any building" category. Further, the creation of heat from
natural gas originating out of state is an "activity affecting
interstate or foreign commerce." Such activity, moreover, is
in which the building at issue was unquestionably "used." The
Government's proposed proof thus appears to satisfy the
statute's literal terms. See United States v. Barton,
647 F.2d 224, 231-32 (2d Cir.), cert. denied, 454 U.S. 857, 102 S.Ct.
307, 70 L.Ed.2d 152 (1981) (approving a jury instruction that
"[a] building is used . . . in an activity [a]ffecting
interstate commerce . . . if oil or gas moving in interstate
commerce is used to heat the building."); United States v.
Zabic, No. 82 CR 423, slip op. at 3 (N.D.Ill. Feb. 11, 1983)
("the activity of letting 43 units of dwelling space, including
the provision of natural gas to each unit . . . is an activity
affecting commerce").*fn1 Much lesser showings have passed
muster. See United States v. Grossman, 608 F.2d 534 (4th Cir.
The court recognizes that the reasoning espoused above could
have very broad application. But see note 2, infra, and
accompanying text. However, the Seventh Circuit has clearly
authorized expansive interpretations of the language of §
844(i). See United States v. Sweet, 548 F.2d 198, 201 (7th
Cir.), cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d
361 (1977) (suggesting that the statute reaches the bombing of
a tavern selling only home-produced liquor products because
such activity reduces the demand for liquor goods sold in
interstate commerce). Congress enacted § 844(i) — as well the
remaining provisions of Title XI of the Organized Crime Control
Act of 1970 — "to protect interstate and foreign commerce
against interference and interruption by reducing the hazard to
persons and property arising from misuse and unsafe or insecure
storage of explosive materials." 18 U.S.C.A. § 841 note. The
construction of the statute adopted here furthers this purpose.
Russell cites in response the Second Circuit's holding in
United States v. Mennuti, 639 F.2d 107 (2d Cir. 1981), that the
statute "does not apply to private dwellings." United States v.
Barton, supra, 647 F.2d at 232 n. 8; accord, United States v.
Giordano, 693 F.2d 245, 250 (2d Cir. 1982). The court declines
to rule in Russell's favor on the strength of Mennuti for
several reasons. First, Mennuti does not announce the law of
this Circuit; Sweet does, and, for the reasons given above, the
reasoning found in that opinion, to the extent it is relevant
at all, supports the Government's position, not Russell's.
Mennuti must also be read in context. The Barton Court's
subsequent approval of the jury instruction quoted supra
clearly shows that the Second Circuit agrees, as a general
matter, that a building heated by out of state gas is thereby
"used in" an "activity affecting interstate or foreign
commerce" for purposes of the statute. Mennuti simply carves a
"residential building" exception to this general rule. The
statute, however, speaks of "any building," not
"non-residential buildings." It should go without saying that
the words of the statute must, if at all possible, be given
their ordinary meaning. See, e.g., United States v. Turkette,
452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); see also
United States v. Fears, 450 F. Supp. 249, 253 (E.D.Tenn. 1978)
(the term "any building" in 18 U.S.C. § 844(e) means any
building, including a personal residence) (emphasis in
It is acknowledged that the House report underlying § 844(i),
though ambiguous, can
be read to limit the statute's reach to "business property":
Section 844(i) proscribes the malicious damaging
or destroying, by means of 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. Attempts would also be covered.
Since the term affecting [interstate or foreign]
"commerce" represents "the fullest jurisdictional
breadth constitutionally permissible under the
Commerce Clause," NLRB v. Reliance Fuel Corp.,
371 U.S. 224, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963), this
is a very broad provision covering substantially
all business property.
H.R.Rep. 91-1549, 91st Cong., 2d Sess. reprinted in 
U.S.Code Cong. & Admin.News 4007, 4046. But even conceding the
propriety of the suggested limitation,*fn2 Russell's case is
not advanced. For if the Government's proposed proof
materializes, the evidence will show that Russell utilized the
subject property in conducting his "side" business*fn3 of
providing housing space for rent. From the perspective of the
defendant, the building on South Union Street was very
definitely "business property" within the meaning of the House
Report cited above.*fn4
For all the reasons stated, defendant's motion to dismiss
the indictment is denied.
It is so ordered.