1

A truck engaged in construction on the Federles' property

had passed over the edge of the Denallis' property. Thereafter

Denalli began his activities. He obtained a police scanner and

eavesdropped on the Federles' telephone conversations. He stole

credit cards and other documents from their home. He poured

gasoline throughout their garage, glued notes on the windshield

of their car, put glue in the car's door locks and placed a

corrosive solvent on the car that removed some of the paint. He

constructed a pipe bomb, connected it to his van, and called the

police reporting that Federle had affixed a bomb to his

automobile. He charged items to the credit cards he had stolen

and directed some of them be delivered to a post office box he

had rented in the Federles' name. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-3067.

UNITED STATES of America, Plaintiff-Appellee,

v.

Raymond Joseph DENALLI, Defendant-Appellant.

Jan. 23, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 94-34-Cr-Orl-18), G. Kendall Sharp,

Judge.

Before HATCHETT and BIRCH, Circuit Judges, and GODBOLD, Senior

Circuit Judge.

PER CURIAM:

Raymond Denalli was convicted on all 21 counts of an

indictment, all of which sprang from indignities, outrages, and

fraudulent acts committed by Denalli. The victims were the

Federles, his next-door neighbors. When the neighbors were away

vacationing he entered their residence, poured gasoline throughout,

and set it on fire. Firefighters could not control the blaze. The

residence, and the Federles' cat, were destroyed.1

 Denalli

questions only his conviction under Count 21, under the federal
arson statute, which provides:

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 imprisoned ..., fined ..., or both.

18 U.S.C. § 844(i) (emphasis added). We hold that the evidence did

not satisfy the jurisdictional prerequisite of § 844(i), and we

reverse the conviction on Count 21 and remand for resentencing.

The federal arson statute expressly requires a jurisdictional

prerequisite as an essential element. Congress constructed the

statute to exercise the full reach of the federal commerce power.

Russell v. U.S., 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829

(1985).

The parties concede that the Federles' private residence was

not used in interstate or foreign commerce; therefore, this court

must only determine if the destruction of the residence affected

interstate or foreign commerce.

 We review the sufficiency of evidence under the de novo

standard. U.S. v. Keller, 916 F.2d 628, 632 (11th Cir.1990), cert.

denied, 499 U.S. 978, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991). We

must construe all evidence in a light most favorable to the

government, as it prevailed in the district court. U.S. v.

Johnson, 713 F.2d 633, 661 (11th Cir.1983), cert. denied, 465 U.S.

1081, 104 S.Ct. 1447, 79 L.Ed.2d 766 (1984).

The Supreme Court recently considered the scope of federal

commerce power in U.S. v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131

L.Ed.2d 626 (1995), where the Court considered the

constitutionality of the Gun-Free School Zone Act. Id. at ----,
 2

One of the principal tenets of our federal system is that

the "States possess primary authority for defining and enforcing

the criminal law." Id. at ---- n. 3, 115 S.Ct. at 1631 n. 3; 

Brecht v. Abrahamson, 507 U.S. 619, ----, 113 S.Ct. 1710, 1720,

123 L.Ed.2d 353 (1993) (quoting Engle v. Isaac, 456 U.S. 107,

128, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982)). 

115 S.Ct. at 1626. The Court examined Commerce Clause

jurisprudence and identified three categories of activity that

Congress could regulate under the commerce power.

First, Congress may regulate the use of the channels of

interstate commerce. Second, Congress is empowered to

regulate and protect the instrumentalities of interstate

commerce, or persons or things in interstate commerce, even

though the threat may come only from intrastate activities.

Finally, Congress' commerce authority includes the power to

regulate those activities having a substantial relationship to

interstate commerce, those activities that substantially

affect interstate commerce.

Id. at ---- - ----, 115 S.Ct. at 1629-30 (citations omitted).

Congress' regulation of gun-free school zones did not involve the

first two categories of Commerce Clause regulation, so the Court

analyzed the third category. Id. at ----, 115 S.Ct. at 1630. The

Court concluded that the analysis under the third category must

determine "whether the regulated activity "substantially affects'

interstate commerce." Id.

The Court focused on the fact that the gun-free zone law was

a criminal statute2

 that had nothing to do with commerce. Id. at

----, 115 S.Ct. at 1630-31. The Court found no substantial

connection between interstate commerce and the statute. Id. at ---

-, 115 S.Ct. at 1634. It held the Gun-Free School Zone Act

unconstitutional because Congress exceeded the scope of the federal

commerce power.

Lopez did not consider the federal arson statute at issue
here, but it placed a limit on the federal commerce power. Justice

Bryer, dissenting, noted that the new restrictive reading of the

Commerce Clause could impact the analysis of the federal arson

statute. Id. at ----, 115 S.Ct. at 1664.

In U.S. v. Pappadopoulos, 64 F.3d 522 (9th Cir.1995), the

Ninth Circuit recently applied the Lopez rationale in a case

involving the federal arson statute. The Court concluded that the

federal arson statute was similar to the gun-free school zone

statute in that neither statute regulated commercial or economic

activity. Id. at 526-27. The court described the limit that Lopez

placed on the federal commerce power.

Lopez makes it clear that the Wickard [v. Filburn, 317 U.S.

111, 63 S.Ct. 82, 87 L.Ed. 122 (1942) ] line of cases "may not

be extended so as to embrace effects upon interstate commerce

so indirect and remote that to embrace them, in view of our

complex society, would effectually obliterate the distinction

between what is national and what is local and create a

completely centralized government."

Id. at 526-27. (quoting Lopez, --- U.S. at ---- - ----, 115 S.Ct.

at 1628-29). The Ninth Circuit held that the destruction of the

house did not affect interstate commerce, because the only

connection the house had to interstate commerce was a natural gas

line. Id. at 528-29.

Other courts have used Lopez to examine other federal criminal

statutes. See U.S. v. All Assets of G.P.S. Automotive Corp., 66

F.3d 483 (2d Cir.1995) ("And the Supreme Court's decision earlier

this year in U.S. v. Lopez, --- U.S. ----, 115 S.Ct. 1624, has

similarly revealed the Court's willingness to give serious and

renewed thought to issues of federalism at the foundation of our

constitutional system, and to do so in the context of the enormous
 3

Lopez guided this court's analysis of the scope of the

commerce power when considering the constitutionality of the

Freedom of Access to Clinic Entrances Act in Cheffer v. Reno, 55

F.3d 1517, 1520 (11th Cir.1995). 

expansion of federal criminal law"). Contra U.S. v. Sherlin, 67

F.3d 1208, 1213-14 (6th Cir.1995) (in its jurisdictional analysis

under the federal arson statute the court distinguished Lopez by

concluding that the gun-free school zone law did not contain a

jurisdictional element.)3

Lopez required the government to prove that the destruction

of the Federles' private residence had a substantial effect on

interstate commerce. It failed to make this showing.

Federle was an electrical engineer for Harris Corporation, a

company that engaged in interstate and international business.

Harris worked on various projects for the Canadian government.

Federle maintained an office in his private residence equipped with

a personal computer, which he used about once a week to prepare

memoranda relating to his position at Harris. Harris did not

require Federle to maintain an office at home, and it did not

require him to create the memoranda at home. Federle's computer

was not linked to any Harris computer. It was not equipped with a

modem. It had no link to interstate phone lines or other

interstate connections. The memoranda were not incorporated by

disks or other electronic means to any Harris computers. Federle

would print the memoranda on his personal printer and physically

carry them to employees at Harris. He conducted no further

activity for Harris at his residence that affected interstate

commerce.
The government contends that Federle's use of his computer

affected interstate commerce because the use concerned

international business. But the evidence did not prove any impact

of the memoranda on Harris' contract with the Canadian Government.

No substantial effect on interstate commerce was proved.

The conviction under Count 21 is REVERSED and the case

REMANDED for resentencing.