Appeal from the United States District Court for the Western District of Wisconsin.
No. 95-CR-67-C-02 Barbara B. Crabb, Judge.
Before POSNER, Chief Judge, and CUDAHY and ROVNER, Circuit Judges.
A jury convicted the appellant, Hicks, and his codefendant, Wing, of arson. 18 U.S.C. sec. 844(i). Hicks, sentenced to 100 months in prison, appeals.
In 1990 a fire of suspicious origin had damaged a restaurant owned by Wing in downtown Portage, Wisconsin. The restaurant was located in a two-story building that he owned, the second story of which consisted of an unoccupied apartment. He had been overheard a few weeks earlier talking of hiring someone to set fire to the restaurant, and was heavily in debt on the building, which was insured. The fire was set in a closet, and the fire department extinguished it before the building was destroyed. Nevertheless there was substantial damage. Wing collected $68,000 from the insurers.
Hicks was an early suspect. Telephone records revealed that two calls had been placed to his home from the restaurant the day before the fire, and he matched the description of one of two men seen running from an alley behind the restaurant minutes before the fire was discovered. The other man, Cavanaugh, was eventually identified and found. He confessed, implicating Hicks. Cavanaugh's identification of Hicks was corroborated by sketches that Cavanaugh made of the interior of the building and by the testimony of another witness. The evidence of guilt was overwhelming; Hicks's argument that no reasonable jury could have found him guilty beyond a reasonable doubt is frivolous. Also frivolous is his argument that the arson statute is unconstitutionally vague because it fails to specify which cases shall be prosecuted under it and which under overlapping state arson laws. United States v. Jacobs, 4 F.3d 603 (8th Cir. 1993) (per curiam); United States v. Parson, 955 F.2d 858, 873 n. 22 (3d Cir. 1992); United States v. Carter, 953 F.2d 1449, 1461-62 (5th Cir. 1992).
Hicks argues that the federal arson statute exceeds congressional power under the commerce clause of Article I, because all the statute requires is an attempt to damage or destroy a building or other property "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." 18 U.S.C. sec. 844(i). He points out that even if he had succeeded in his aim of burning the building containing Wing's restaurant to the ground, the effect on the interstate or foreign commerce of the United States would be insignificant; he challenges us to quantify the effect on the nation's $7 trillion GNP. After United States v. Lopez, 115 S. Ct. 1624 (1995), he argues, the federal government may punish only arsons that substantially affect interstate commerce. He asks us to overrule all our decisions that hold, both before and after Lopez, that even a minimal effect on interstate commerce is sufficient under Article I to empower Congress to punish an arson. E.g., United States v. Martin, 63 F.3d 1422, 1426-28 (7th Cir. 1995); United States v. Menzer, 29 F.3d 1223, 1230 (7th Cir. 1994); United States v. Stillwell, 900 F.2d 1104, 1110-12 (7th Cir. 1990).
Hicks misunderstands Lopez. Lopez does require that the activity regulated by federal law affect interstate or foreign commerce ("commerce," for short) substantially, but not that every transaction affect commerce substantially. The activity in Lopez was carrying a gun within a thousand feet of a school, and it was doubtful whether that activity substantially affects commerce, or even was believed by Congress to substantially affect commerce, since the statute did not mention commerce. It might affect commerce, by intimidating students or teachers and thereby impairing the formation of the students' human capital (earning capacity), much of which would no doubt eventually be employed in national markets. But this is a pretty elongated and speculative chain of causation, which if accepted might allow Congress to regulate any activity at all, no matter how deep within the core of traditionally state or local rather than national functions the activity lay. The commerce clause would no longer be any protection for federalism.
In contrast, the activity regulated by the arson statute is the burning of property used in or affecting commerce, and it doesn't take any fancy intellectual footwork to conclude that the aggregate effect of such arsons on commerce is substantial. As this case illustrates. The restaurant had fire insurance written by two companies, both from out of state; it obtained fuel (natural gas) from out of state; and it bought food from out of state. The fire imposed costs on the insurance companies and, had it succeeded in destroying the building, would have eliminated the delivery of out-of-state natural gas and out-of-state food to the restaurant. This was what one fire in one town could have done; multiply the effects by all fires of incendiary origin and you will get an idea of the aggregate effects of arson on commerce. And, to repeat, those are the effects that count, in deciding whether an activity is within Congress's power under the commerce clause. United States v. Lopez, supra, 115 S. Ct. at 1629, 1631; Perez v. United States, 402 U.S. 146, 154 (1971); Katzenbach v. McClung, 379 U.S. 294, 300-01 (1964); United States v. Stillo, 57 F.3d 553, 558 n. 2 (7th Cir. 1995); United States v. Sweet, 548 F.2d 198, 200-02 (7th Cir. 1977); United States v. Dinwiddie, 76 F.3d 913, 920 (8th Cir. 1996); cf. Hammes v. AAMCO Transmissions, Inc., 33 F.3d 774, 781 (7th Cir. 1994).
We realize that several cases decided under the arson statute since Lopez reject this approach. Illustrative is United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995), which holds, in conflict with our decision in United States v. Stillwell, supra, 900 F.2d at 1110-12, and with United States v. Ramey, 24 F.3d 602, 607 (4th Cir. 1994), that the burning of a private home is not within Congress's power to punish if the only link to commerce is that the home receives its fuel supply from another state. Even with such a link, the court reasoned, the effect of the arson on commerce was too slight to confer federal regulatory power. See also United States v. Denalli, 73 F.3d 328, 330 (11th Cir. 1996) (per curiam), modified on other grounds, 90 F.3d 444 (11th Cir. 1996). A later decision by the Ninth Circuit appears to confine Pappadopoulos to private homes, as distinct from rental buildings and other commercial establishments. United States v. Gomez, 87 F.3d 1093, 1096 (9th Cir. 1996); see also United States v. Utter, 97 F.3d 509, 516 (11th Cir. 1996). The noncommercial character of the torched building strikes us as irrelevant. The supplying of gas to private homes is a major interstate activity, and its potential disruption by arson is therefore a legitimate matter of federal concern. If the federal law forbade all arsons, including ones that had not even a slight effect on commerce, the aggregation principle would be inapplicable. X 0 is not greater than X. The statute requires proof that the arson with which the defendant is charged have some effect on commerce; only it needn't be a large effect, since the sum of many small effects can be a large effect.
The small effects can even be indirect, as in Wickard v. Filburn, 317 U.S. 111 (1942). The Court held that the planting of a crop by a farmer was within the commerce power even if he planned to consume the entire crop himself rather than sell it. Of course one farmer's activity, whatever it is, isn't going to affect commerce noticeably. But were that the test the federal government couldn't regulate agriculture at all, even though the market in agricultural products is one of the nation's largest interstate and foreign markets. The issue in Wickard v. Filburn was properly posed as whether farmers' own consumption of their crops could appreciably affect the agricultural market, and of course the answer was that it could. The price and quantity, and hence interstate and foreign shipments, of a crop are determined by the conditions of demand and supply, including the demand by the growers themselves. It makes no difference to price and quantity whether the growers eat part of the crop without selling it or sell the entire crop and then buy on the open market the amount of it they want to eat. The amount of the crop demanded and supplied is the same in both cases, and this shows that the growers' own consumption is as much a part of the national and international market as sales of the crop are. If they eat less (or more), whether of what they buy or what they grow, the price and quantity of the crop, and the volume of interstate deliveries, will be affected. This kind of straightforward economic analysis was unavailable to support federal jurisdiction in Lopez. It is available in the case of the federal arson statute because arsons that interrupt the interstate delivery of supplies affect the volume of interstate shipments of those supplies. The contrast with Lopez is shown by United States v. Sherlin, 67 F.3d 1208 (6th Cir. 1995), which held that the arson of a college dorm housing students from out of state was within the constitutional reach of the federal arson statute. It was an education case, like Lopez, but one in which the effect of the regulated activity on commerce was a good deal less conjectural.
An alternative reading of Gomez, and possibly of Pappadopoulos itself, is that aggregation is permissible only within the particular category of property to which the torched building belongs: private residences in Pappadopoulos, rental apartment buildings in Gomez. Pappadopoulos is still wrong on this approach, because private residences are linked through fuel supply and in other respects to out-of-state suppliers and the sum total of the effects of arsons that sever those links is substantial. But the approach is wrong too, because it is arbitrary. Categories such as private residence and rental apartment building do not appear in the commerce clause or the arson statute; nor is there anywhere else in the law to look for guidance ...