that based on discourse construction of a forty four i churches synagogues mosques temples what have you are just ordinarily not places that we associate with interstate commerce so if they are regulated they have to be regulated because they have a substantial effect on interstate commerce this is the familiar lopez analysis you get three categories that can be regulated and the interstate commerce clause you get channels we don't have that get instrument that's all you need that is a perfect motion and this court in the united states versus omer made it clear that when you have an implied element that's not alleged in the indictment you dismissed if it's if  made omer involved a god an error where materiality was an alleged in the indictment and it's very difficult to see any distinction between materiality being an implied element and a substantial effect on interstate commerce there's no analytical way that i know of to distinguish the two and because implied elements must be in the indictment this court must dismiss now i did raise two other challenges challenge the first the other challenge i raised was  from the mind that churches synagogues and the like ordinarily not involved in the stream of commerce and that is indisputable true he also asked for a drain structure that said that the government has approved a special effect bulk in that instance it's a theory of defense instruction there's no other defense in this case like i said in my opening there's little question who did this maybe a lot of question asked why but there's little question as to who did the only defense possible in this case was this synagogue didn't have a substantial effect on interstate commerce and he wasn't allowed to make that argument i mean his lawyers tried  valiantly in closing to try to make that point but without the theory of defense and struction without the jury instruction telling the jurors that you have to find a substantial fact it really hamstrung his defense and that was a pretty good defense it's not just a per reversal hey he had a shot in the dark chance of getting this one no it was a pretty good defense recall the facts in this case are that this arson occurred with two bullets containers of gasoline the damage was to the stucco some woodwork cost about six thousand dollars to actually repair the damage we're talking about flaming overstock o and the subsurface supposed connection interstate commerce was a three glass decision in the first instance but the government concedes all over their papers that this is just an ordinary element recall that's the reason they supposedly get out of the indictment challenge they say no no no interstate commerce that's just an ordinary element of the offense it's a matter of can challenge you on the front end and he's not allowed to challenge it during the instructions and during the argument in other words the government is just removing the interstate commerce element from this offense and there's just no constitutional way you can do that i mean in light of a jury i would show you pictures of the synagogue like it's a small synagogue in a hallway and i would say this synagogues a place of worship it's not a place of business and i think everyone would agree with that and if this case were yes your complaint is that it did not use the magic words substantial magic helped magic element substantial yes and you say that that's necessary ye only because of what was said in the month you would say that that's necessary to allege substantial in some other interstate commerce case earl are you saying it's necessary in every case across the board if whether it's a synagogue or a supermarket or a railroad now i think this courthouse full marks clear that because of the fact that it is a church congress didn't intend it to be regulator in the state commerce clause and if it was a chattel of interstate commerce if it were consolidated freight ways that were in the indictment were the missouri river were it something that was straddling the border i don't think there'd be an issue sort of what you're arguing here is that in the case of a synagogue specifically so it has to be substantial and that's the issue that has to be presented to the jury but in a railroad every week of course the boy has to attend services i think that would make no difference whatsoever i think that the fact the building itself is the subject matter it's not who goes there is not where they buy things it's not whether this place places international up front we conclude that the government presented sufficient evidence to satisfy the interstate commerce element and then they say in the very first section the district court instructed the jury that quote a residential apartment building with multiple rental uni is a building in interstate commerce that's all we're suggesting in this case that the judge should have instructed the jury that a building used as a gift shop or even a synagogue and it is used as a gift shop and a daycare center is used interstate commerce defense counsel says that since that's directing a verdict it is not it is instructing the jury that as a matter of law these uses of a building constitute interstate commerce the jury still finds the element of interstate commerce because they have to find that the building in fact was used as a gift shop and daycare center but once they make that factional fighting it's over up have to be an element that the interstate commerce  mall and did only ten dollars a month in business or even lost money it would still be in commerce under the case law it's probably true but it probably is you're like well it's a problem but shop but the shop itself was only ten to fifteen feet away from where the fire was burning so it was very close to the fire yes it was it was the main doors of the synagogue where the fire was set with a can a gasoline apparently and it did substantial damage and there was smoke damage throughout the entire synagogue i'm i correct that i understood you to say that the amount of interstate commerce done by the gift shop was relevant as long as but the case to seem to suggest that that doesn't matter as long as all we're talking about a spiritual activities but if we're talking about commercial activities the case does seem to be quite clear that once a church or synagogue involves itself and commercial activities it doesn't matter and have drawn an artificial distinction synagogues and churches are not all like private residences where there's no commercial activity going on these kinds of organizations do a camera a lot of commercial activity and i think what you're finding is that the case is th instance a church that buys radio station time on three radio stations in town is in commerce that's the holding of the case well if you if you if you want that's sounds like spiritual activity to me but it's also commercial activity so i think what you're seeing is lamont let me ask a minute about lamont because that's a very recent case yes lamont seems to say that ordinarily ordinarily if something is a house of worship it is not subject to the federal arson structured an overt that salad has this talks about mega churches that are engaging in all sorts of businesses and that's something we don't have to reach an education as no one is claiming a must be a sliding scale between megachurch and little gift shop and i don't know where to draw the line frankly this is why i think it's not a jury question you can't ask the jury to draw that line i think it's a legal question for the court to decide is this enough  dealing i think in great great in terms of commerce five to six not or three to five thousand dollars per child per year so considerable commerce going on there and it was not in the same building but it was this far away the buildings are this far away and the the the statute talks about real property the indicted in this case talks about the real property being damaged it was the same complex and i'm sure your honor has children or grandchildren you know  that the primary concern of parents putting their kids in a daycare center is safety and this firebombing must have had an impact on that daycare center well now you acknowledge there was a couple things wrong with this trial first of all you claim that the court should fact told the jury at that this gift shop if it was there constituted a place used in interstate commerce or words to that effect yes but the court didn't do that that's correct then the court instructed the jury on on the proposition that it is place used materials that were shipped in interstate commerce it would constitute interstate commerce or words to that effect which is precisely what was wrong with the case of the private residence where the person committed the the arson correct now when you put those two in de is wrong is wrong but the facts on which they found that are undisputed the fact is that the gift shop was used at what was an interstate commerce and was and the baker center was it facts in a criminal case doesn't get you away from a jury trial on the issue you can have all kinds of undisputed facts but that doesn't say you excuse the jury from deciding each well and i think the but the can but the question is would it trouble because he if this had seems incidental that there was a gift shop in a daycare center here the day care center is in a different building the gift shop isn't very big he sets fire to the doors of the synagogue which are powerful  very clear owners were talking a lot about the gift shop but you know what i don't see in the indictment the gift shop indictment reads congregation best damn it doesn't say one word about to get shop and this court in dupo adopted the  sell just religious whips it was part of their spiritual mission this isn't a gift shop selling tasking gum it's going things to be used in the you know part of the worship you know i'm not here to defend w it was ridiculous it was bad it was all those things but it wasn't a federal case let me go to say cork at this time there doesn't belong here thank you