* Pursuant to 5 T H C IR

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 4, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 02-10932

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BYRON DAWES,

Defendant-Appellant.

__________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:01-CR-288-1-P

_________________________________________________________________

Before JOLLY, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: *

Byron Dawes was convicted on a three-count indictment for mail

fraud (18 U.S.C. § 1341), arson (18 U.S.C. § 844(i)), and using a

fire to commit a felony (18 U.S.C. § 844(h)) in connection with a

fire that destroyed Dawes’s dry cleaning busin ess. Dawes was

sentenced to 171 months’ impri s onment, five years’ supervised

release, and restitution. Dawes appeals this conviction asserting

four points of error. We AFFIRM.2

First, Dawes alleges that the jury instruction was erroneous

because it required jurors to find only an “effect” on interstate

commerce under 18 U.S.C. § 844(i). Instead, he argues that U nited

States v. Lopez , 514 U.S. 549, 559 (1995), requires that the jury

should have been instructed that a substantial effect on commerce

must be found. “Challenges to jury instructions are reviewed to

determine whether the court’s charge, as a whole, is a correct

statement of the law and clearly instructs jurors on the legal

principles at issue.” U nited States v. Jennings

, 195 F.3d 795, 801

(5th Cir. 1999). Contrary to Dawes’s assertions, this Court

requires only an effect on interstate commerce, not a substantial

effect. S ee id .; United States v. Robinson

, 119 F.3d 1205, 1212-15

(5th Cir. 1997)

. Moreover, arson fires involving commercial rental

properties, like Dawes’s business, affect interstate commerce.

Jones v. United States

, 529 U.S. 848, 852-53 (2000); Russell v.

United States

, 471 U.S. 858, 859-62 (1985). As such, the district

court committed no error; its instructions constituted “a correct

statement of the law” and “clearly instruct[ed] jurors on the legal

principles at issue.” Jennings , 195 F.3d at 801.

Second, Dawes argues that his convictions for mail fraud and

use of fire to commit a felony under 18 U.S.C. §§ 1341 and 844(h)

should be reversed because the district court lacked jurisdiction.

A claim that the district court lacked jurisdiction may be raised

for the first time on appeal and is reviewed de novo

. U nited

States v. Henry , 288 F.3d 657, 660 (5th Cir. 2002), cert. denied

,3

123 S.Ct. 224 (2002). Specifically, Dawes contends that the arson

conviction, upon which these convictions are based, is purely a

state offense and, as such, lacks the requisite nexus to federal

jurisdiction. This claim is without merit. As discussed s upra

,

jurisdiction over the arson count is established as a result of its

effect on interstate commerce.

Third, Dawes argues that 18 U.S.C. § 844(i) and (h) are void

for vagueness under Lopez

. This Court reviews whether a statute is

void for vagueness de novo

. U nited States v. Monroe

, 178 F.3d 304,

308 (5th Cir. 1999). Specifically, Dawes asserts that he was not

on notice that conduct having a “de minimis” effect on interstate

commerce violated federal law. However, this argument is

predicated on the notion that Lopez altered the analysis of the

extent to which an individual act of arson must have affected

interstate commerce for federal jurisdiction to attach, which we

have rejected earlier. This argument is similarly meritless.

Fin ally, Dawes argues that the search of his home was

unconstitutional and evidence thus seized should have been

suppressed. When reviewing the denial of a motion to suppress,

factual findings are reviewed for clear error and the sufficiency

of the warrant is reviewed de novo

. United States v. Cherna , 184

F.3d 403, 406 (5th Cir. 1999); United States v. Cavazos , 288 F.3d

706, 709 (5th Cir. 2002), cert. denied

, 123 S.Ct. 253 (2002).

Dawes argue s that the evidence should have been excluded because4

the affidavit supporting the warrant omitted the fact that an

accelerant-detecting dog had not detected chemical accelerants on

Dawes’s person. In cases where the officers have a search warrant,

the district court must be affirmed if the good faith exception to

the exclusionary rule applies. C avazos

, 288 F.3d at 709. Only if

this exception does not apply will a court determine if the

magistrate had a substantial basis for finding probable cause. I d

.

In this case the district court properly applied the good faith

exception because the omission was not intentional and the omitted

information was not material or dispositive. S ee United States v.

Davis

, 226 F.3d 346, 351 (5th Cir. 2000)(requiring the omitted

information to be relevant and dispositive); United States v.

McCarty

, 36 F.3d 1349 , 1356 (5th Cir. 1994) (requiring omission

from affidavit to be intentional).

Second, because Dawes did not req uest an opportunity to

present evidence, the district court did not err in failing to hold

an evidentiary hearing. S ee Franks v. Delaware

, 438 U.S. 154, 155-

156 (1978). Lastly, the search was not unreasonable under F E D

. R.

C RIM

. P. 41, because that rule is inapplicable considering the

search warrant was issued by a state judge at the request of a

state officer. U nited States v. Rivas

, 99 F.3d 170, 176 (5th Cir.

1996) (citing United States v. McKeever

, 905 F.2d 829, 832 (5th

Cir. 1990)).

For the foregoing reasons, the judgment is AFFIRMED.