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18-2139-cr 

United States v. Griffin 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 24th day of June, two thousand nineteen. 

PRESENT: RALPH K. WINTER,

JOSÉ A. CABRANES, 

REENA RAGGI, 

Circuit Judges. 

 

UNITED STATES OF AMERICA

Appellee, 18-2139-cr 

v. 

DUANE E. GRIFFIN, 

Defendant-Appellant. 

 

FOR APPELLEE: Sonja Ralston, Attorney, Appellate 

Section, Criminal Division, United States 

Department of Justice (Steven David 

Clymer, Assistant United States Attorney, 

on the brief), for Grant C. Jaquith, United 

States Attorney for the Northern District 

of New York, Albany, NY. 

FOR DEFENDANT-APPELLANT: Thomas J. Melanson, Melanson Law 

Office P.C., Kingston, NY. 
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Appeal from a judgment of the United States District Court for the Northern District of 

New York (Mae A. D’Agostino, Judge). 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is 

AFFIRMED. 

Defendant-Appellant Duane E. Griffin (“Griffin”) appeals his conviction after a jury trial of 

arson of a building used in interstate commerce, in violation of 18 U.S.C. § 844(i). Griffin argues 

that the District Court erred in denying his motion for acquittal under Federal Rule of Criminal 

Procedure 29 based on insufficient evidence that the building at issue was “used in interstate or 

foreign commerce or in any activity affecting interstate or foreign commerce” as required by 18 

U.S.C. § 844(i). We assume the parties’ familiarity with the underlying facts, the procedural history 

of the case, and the issues on appeal. 

We review the denial of a Rule 29 motion for a judgment of acquittal de novo, viewing “the 

evidence in the light most favorable to the Government with all reasonable inferences resolved in 

the Government’s favor.” United States v. Valle, 807 F.3d 508, 515 (2d Cir. 2015). We will uphold the 

jury’s verdict “if any rational trier of fact could have found the essential elements of the crime had 

been proved beyond a reasonable doubt.” Id. 

Griffin argues that the Government failed to show that the building at issue satisfied the 

“used in interstate . . . commerce” requirement of 18 U.S.C. § 844(i) because the property, which 

included a ground-floor bar and three rental apartments, was not in active use at the time of the fire. 

“[T]he Supreme Court has interpreted the phrase ‘used in’ to ‘mean active employment for 

commercial purposes, and not merely a passive, passing, or past connection to commerce.’” United 

States v. Iodice, 525 F.3d 179, 183 (2d Cir. 2008) (quoting Jones v. United States, 529 U.S. 848, 855 

(2000)). To decide whether a building satisfies this requirement, we determine, first, the function of 

the building and, then, whether that function affects interstate commerce. Id. We have explained that 

rental properties, bars, and restaurants “per se” affect interstate commerce under § 844(i). United 

States v. Joyner, 201 F.3d 61, 79 (2d Cir. 2000). 

Temporarily vacant commercial buildings, including restaurants and rental properties, “do 

not necessarily relinquish their relationship with interstate commerce for purposes of § 844(i)” due 

to their vacancy. Iodice, 525 F.3d at 184. Such a building will satisfy the interstate commerce 

requirement “as long as there [i]s evidence at trial of sufficiently definite plans to return the property 

to the stream of commerce.” Id. This requires more than a showing that the building “may someday 

be brought into the stream of commerce, or . . . [its] owner desires someday to bring it into the 

stream of commerce.” Id. at 185. 
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Here, the evidence at trial established that the building was recently active in interstate 

commerce and that there were definite, imminent plans to return the property to commercial use. 

The building at issue in this case was a three-story structure, with a bar on the first floor and rental 

apartments on the second and third floors. All tenants had vacated the building some time prior to 

the fire on March 17, 2012. The bar ceased having regular hours at the end of 2011. Nevertheless, 

the bar was still available for rent for private parties and was indeed rented approximately ten times 

in 2012 prior to the fire. Seven weeks before the fire, the building was foreclosed on by a lender. 

The property, whose value depended on its commercial use, was, however, scheduled to be sold at 

auction on April 4, 2012. Indeed, on March 5 and 12, 2012, the lender advertised the upcoming 

auction in the local paper. It was only as a result of the fire that the auction and sale were canceled, 

thereby delaying return of the property to the stream of commerce. This evidence was sufficient to 

allow a reasonable jury to find that the building was actively employed for commercial purposes until 

shortly before the fire and that there were sufficiently definite plans to return the property to the 

stream of commerce. Accordingly, we conclude that this evidence is sufficient to satisfy the 

interstate nexus requirement under § 844(i). 

CONCLUSION 

We have reviewed all of the arguments raised by Griffin on appeal and find them to be 

without merit. For the foregoing reasons, we AFFIRM the July 10, 2018 judgment of the District 

Court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk