1

The Hon. Daniel L. Hovland, Chief Judge, United States District Court for the

District of North Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-2855SD

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United States of America, *

*

Appellee, *

* On Appeal from the United

v. * States District Court

* for the District of

* South Dakota.

R. J. S., Jr., *

*

Appellant. *

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Submitted: February 10, 2004

Filed: May 6, 2004

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Before RILEY and RICHARD S. ARNOLD, Circuit Judges, and HOVLAND,1

 Chief

District Judge.

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RICHARD S. ARNOLD, Circuit Judge.

R. J. S., Jr., a juvenile, was convicted of violating 18 U.S.C. § 844(e) for his

use of a telephone to communicate a false threatening message. He was sentenced

to two years' probation. On appeal, defendant argues that the telephone call was a

wholly intrastate activity and, therefore, that Congress had no power to regulate it

under the Commerce Clause. We reject this argument and affirm the judgment of the
2

The Hon. Richard H. Battey, United States District Judge for the District of

South Dakota.

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District Court.2

 We hold that the commerce power reaches wholly intrastate

telephone calls, so long as the calls are made with telephones connected to an

interstate telephone system.

On February 10, 2003, the Pine Ridge School placed R. J. S., Jr., and two other

students in the school's detention room, which is equipped with a telephone

connected to a ten-digit interstate number. At approximately 11:15 a.m., a call was

made from the detention-room telephone to the school secretary's telephone, which

is connected to a separate ten-digit interstate number. A school counselor answered

the call to the secretary's telephone and heard R. J. S., Jr., threaten to blow up the

building. 

Defendant argues that the telephone he used to communicate the threat falls

outside the legitimate scope of 18 U.S.C. § 844(e) because the call was placed and

received within the school and, therefore, it did not require the use of an interstate

telephonic system. We disagree. Under the plain language of § 844(e), defendant

need only use an "instrument of interstate commerce" to establish a sufficient nexus

to interstate commerce. We have previously held that a telephone, regardless of

whether it is used to make an interstate or intrastate call, is an instrument of interstate

commerce. See United States v. Corum, ___ F.3d ___, ___, 2004 WL 718930 (8th

Cir. 2004) (holding that the intrastate use of a telephone to communicate bomb threats

to three houses of worship satisfies the interstate-commerce element of 18 U.S.C. §

844(e)), and Myzel v. Fields, 386 F.2d 718, 727-28 (8th Cir. 1967) (holding that the

intrastate use of a telephone to violate federal securities laws satisfies the interstatecommerce element of the Securities Exchange Act of 1934). Other Circuits that have

addressed this issue have ruled similarly. See United States v. Marek, 238 F.3d 310,

318 n.35 (5th Cir. 2001); United States v. Gilbert, 181 F.3d 152, 158 (1st Cir. 1999);
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United States v. Weathers, 169 F.3d 336, 341 (6th Cir. 1999); and United States v.

Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997). 

Regardless of whether the call defendant made within the school required the

use of an interstate telephonic system, both telephones were connected to an interstate

telephonic system. Both were connected to separate ten-digit interstate numbers. In

addition, defendant's call made both telephones unavailable to outside, interstate

contact. Thus, we hold that the telephone defendant used to communicate the threat

was an instrument of interstate commerce as that phrase is used in § 844(e). It was

therefore subject to federal regulation and protection, United States v. Lopez, 514

U.S. 549, 558 (1995), and therefore was within the power of Congress to regulate

under the Commerce Clause.

The judgment of the District Court is affirmed. 

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