United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2546

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Harvey Andrew Rea, *

* 

Appellant. *

___________

Submitted: December 18, 1998

 Filed: February 23, 1999

___________

Before MURPHY, JOHN R. GIBSON, and MAGILL, Circuit Judges.

___________

MAGILL, Circuit Judge.

Harvey Rea (Rea or Harvey) entered a conditional guilty plea to one count of

conspiracy to commit arson in violation of 18 U.S.C. §§ 371, 844(i). The district

court sentenced Rea to twenty-four months imprisonment and ordered him to pay

restitution in the amount $45,000. Rea contends that his conduct does not satisfy the

jurisdictional requirement of the arson statute, 18 U.S.C. § 844(i), and that his

conviction must be vacated. Rea also argues that the district court erred in ordering

restitution under the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. § 3663A.

We affirm Rea's conviction, but remand for reconsideration of the restitution order.
-2-

I.

On July 12, 1997, Harvey Rea and Jeremy Rea (Jeremy) were visiting their

father's residence, which is adjacent to the St. James A.M.E. Church (Church) in

Minneapolis, Minnesota. Jeremy broke into the basement of the Church annex, a

building used by the Church for education and other activities, and removed a

computer.

Worried that they might get caught if evidence of the crime were left inside the

Church annex, Harvey directed Jeremy to clean up his fingerprints and to set fire to

the Church annex to destroy any other evidence. Jeremy ignited a fire in the

basement of the Church annex. When the fire started to burn out of control, Harvey

called 911 and reported the fire. The brothers later admitted to their involvement in

the crime.

Harvey and Jeremy were charged in a two-count indictment for conspiracy to

commit arson in violation of 18 U.S.C. §§ 371, 844(i) and aiding and abetting in the

commission of arson in violation of 18 U.S.C. §§ 2, 844(i). After Jeremy agreed to

cooperate with the government and pleaded guilty to being an accessory after the fact

in arson, Harvey conditionally pleaded guilty to the conspiracy count of the

indictment. Harvey reserved the right to appeal the district court's denial of his

motions to dismiss the indictment for lack of subject matter jurisdiction or, in the

alternative, to enter a judgment of acquittal.

The district court accepted the plea agreement and sentenced Harvey to twentyfour months imprisonment followed by thirty-six months supervised release. The

court also ordered Harvey to pay restitution, jointly and severally with Jeremy, in the

amount of $45,000.
1Section 844(i) 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 for not less than 5 years and not

more than 20 years, fined under this title, or both . . . .

18 U.S.C. § 844(i).

-3-

II.

Rea was convicted under 18 U.S.C. § 371 for conspiracy to commit arson, a

violation of 18 U.S.C. § 844(i). Rea argues that the district court lacked jurisdiction

to enter a judgment of conviction because the Church annex was not "used in

interstate . . . commerce or in any activity affecting interstate . . . commerce." 18

U.S.C. § 844(i).1 Relying on United States v. Lopez, 514 U.S. 549 (1995), Rea also

suggests that the government must establish that the building burned had a

substantial affect on interstate commerce to satisfy section 844(i)'s jurisdictional

element. We disagree with both contentions.

First, we point out that section 844(i)'s "interstate commerce" requirement,

while jurisdictional in nature, is merely an element of the offense, not a prerequisite

to subject matter jurisdiction. See United States v. Ryan, 41 F.3d 361, 363 (8th Cir.

1994) (en banc). Accordingly, the district court had subject matter jurisdiction to

enter the judgment of conviction.

Second, this Court has explained that Lopez is inapposite to convictions

secured pursuant to section 844(i) and does not raise the government's evidentiary

burden on the jurisdictional element of the offense. See United States v. Melina, 101
-4-

F.3d 567, 573 (8th Cir. 1996) ("we do not find Lopez's analysis applicable due to the

§ 844(i)'s express jurisdictional element"); United States v. Flaherty, 76 F.3d 967,

973-74 (8th Cir. 1996) ("The Lopez decision did not address the amount of evidence

required to prove an explicit jurisdictional element of an offense and does not control

this case."); see also United States v. Tocco, 135 F.3d 116, 123-24 (6th Cir. 1998)

("We hold that in light of the fact that, unlike the statute in Lopez, § 844(i) does

contain a jurisdictional element, Lopez did not elevate the government's burden in

establishing jurisdiction in a federal arson prosecution."); United States v. Hicks, 106

F.3d 187, 190 (7th Cir. 1997) ("The regulated activity must have a substantial effect,

but this requirement is a condition of the statute's constitutionality . . . rather than an

element of the crime . . . ."). Accordingly, we construe Rea's argument as being that

the facts to which he pleaded guilty are not sufficient to demonstrate that the Church

annex was used in interstate commerce or in any activity affecting interstate

commerce.

We review application of facts to the legal interpretation of section 844(i) de

novo. See United States v. Brummels, 15 F.3d 769, 771 (8th Cir. 1994). When

analyzing a conviction under section 844(i), we must determine whether the evidence

is sufficient to demonstrate that the burned property--here, the Church annex--was

"'used' in an 'activity' that affects commerce." Russell v. United States, 471 U.S. 858,

862 (1985) (emphasis added).

"In enacting section 844(i), Congress intended to exercise its full power under

the Commerce Clause of the Constitution," Ryan, 41 F.3d at 364, and intended for

the statute to cover the destruction of church property. See Russell, 471 U.S. at 860-

61 & n.7. Although section 844(i)'s scope is not unlimited, see United States v. Voss,

787 F.2d 393, 397 (8th Cir. 1986) (mere fact that vacant residential building is

insured by an interstate insurer not sufficient to satisfy section 844(i)'s jurisdictional

requirement); see also Russell, 471 U.S. at 861-62 (acknowledging Representative

Celler's statements that the statute would not cover the bombing of private homes),
2We reject Rea's argument that the Establishment Clause of the First

Amendment prohibits application of the federal arson statute to church property. To

pass muster under the Establishment Clause, a statute must (1) have a secular

legislative purpose, (2) neither promote nor inhibit religion, and (3) avoid excessive

governmental entanglement with religion. SeeCommittee for Pub. Educ. & Religious

Liberty v. Nyquist, 413 U.S. 756, 773 (1975). We conclude that section 844(i)

-5-

this Court has held that "section 844(i) reaches arson of any property having even a

de minimis connection to interstate commerce." Ryan, 41 F.3d at 364. This standard

is easily satisfied. See Voss, 787 F.2d at 397.

We conclude that the Church annex had a sufficient connection with interstate

commerce to sustain Rea's conviction. The Church annex was used by the

congregation as a schoolhouse and for other activities. The fire destroyed the music

teaching area, including an organ, piano, curriculum materials, and literature. See

Presentence Investigation Report at 2, ¶ 12. The parties stipulate that some of the

texts used in conjunction with Sunday School, taught in the annex, were purchased

from a source outside the State of Minnesota four times each year. Furthermore, the

annex received natural gas from a source outside the State of Minnesota. We

conclude that the Church school's use of materials purchased in interstate commerce,

coupled with its use of natural gas from an out-of-state source, satisfy the

jurisdictional element of section 844(i). See Hicks, 106 F.3d at 189-90 (supply of gas

to private homes is a major interstate activity); United States v. Ramey, 24 F.3d 602,

607 (4th Cir. 1994), cert. denied, 514 U.S. 1103 (1995) (trailer's receipt of interstate

utilities sufficient to satisfy 844(i)'s jurisdictional requirement); see alsoUnited States

v. Milton, 966 F. Supp. 1038, 1041 (D. Kan. 1997) (recognizing that churches satisfy

the jurisdictional requirement of 844(i)). Congress clearly intended for the statute to

cover the destruction of church property, and this is not a case where the de minimis

standard, which guards the federal-state balance, would be starved of content if

sustained by these facts. See Voss, 787 F.2d at 397. We, therefore, affirm the

conviction below.2
satisfies all of the concerns identified in Nyquist.

-6-

III.

Rea next contends that the district court erred in imposing restitution under the

MVRA because he is indigent. We conclude that the district court properly imposed

restitution for the full amount of damage caused to the Church annex, but remand for

reconsideration of the payment schedule portion of the sentencing order.

The MVRA requires a defendant to make restitution to a victim of an offense

against property. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii). The restitution order

procedures statute requires the court to order restitution for the full amount of the

victim's loss, without regard to the defendant's economic circumstances. See 18

U.S.C. § 3664(f)(1)(A). The district court properly followed the mandate of section

3664(f)(1)(A) in ordering restitution for the full amount of the loss attributable to

Rea's conduct. Rea's argument to the contrary is without merit.

The court also ordered Rea to pay restitution in the amount of $750 per month

for five years, beginning thirty days after judgment. We review a district court's

restitution order for abuse of discretion. See United States v. Riebold, 135 F.3d 1226,

1231 (8th Cir. 1998).

When fashioning a restitution payment schedule, a court is required to consider

the defendant's financial resources and other assets, projected earnings and other

income, and financial obligations, including obligations to dependents. See 18 U.S.C.

§ 3664(f)(2). The presentence investigation revealed that Rea is married with three

children. He is a high school graduate with no special skills or training. Rea is

unemployed and earned $400 each month in his most recent job. Rea has no debts

and no assets, except for $100 in personal property. Despite adopting these findings

of fact, the district court ordered Rea to pay $750 each month in restitution, beginning
3We note that the court ordered Rea jointly and severally liable for restitution

with his brother, Jeremy. There is no indication in the record concerning Jeremy's

ability to fulfill the restitution obligation.

-7-

during his incarceration.3 We cannot discern any indication that the district court

considered the factors outlined in section 3664(f)(2) when fashioning the payment

order, cf. Chicago Truck Drivers, Helpers & Warehouse Workers Union Pension

Fund v. Brotherhood Labor Leasing, -- F.3d --, No. 98-2004, 1999 WL 42247, at *1

(8th Cir. Feb. 1, 1999) (stating that it is difficult for a court of appeals to determine

whether a district court abused its discretion in the absence of some explanation, even

a brief one, of the district court's reasoning), and remand for reconsideration of the

payment order in light of the statutory considerations.

IV.

The judgment of conviction entered below is affirmed. We reverse and remand

the sentencing order with instructions to reimpose the restitution payment schedule

in consideration of the factors outlined in section 3664(f)(2).

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.