UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-20889

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TAM DUY NGUYEN,

Defendant-Appellant.

______________________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

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July 9, 1997

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:

In this appeal, we address whether the Double Jeopardy Clause prohibits a court from

imposing consecutive sentences for two counts of the same indictment, where one count charges the

defendant with destroying property by means of an explosion, and the other charges the defendant

with using and carrying a destructive de vice during the commission of the former count. We also

address whether minor damage to an apartment complex renders t his murder case subject to the

federal arson/explosion statute because the crime involved an activity affecting commerce. 18 U.S.C.

§ 844(i).

Tam Duy Nguyen admitted to the police that he gave instructions on how to build a

car bomb to another party, paid that individual to construct the bomb, and placed the bomb under the

driver’s seat of Lam Huu Diep’s van, which was parked in front of an apartment building. On

January, 23, 1992, Diep entered his van and turned his key in the ignition, triggering an explosion that1 This court’s recent decision, United States v. Corona

, 108 F.3d 565 (5th Cir. 1997), reached a

result different from S ingleton

. I n Corona

, the defendant had been convicted for violatio ns of 18

U.S.C. § 371, 18 U.S.C. § 844(i), and 18 U.S.C. § 844(h)(1), and on appeal this court found a double

jeopardy violati o n, because “Congress has not authorized three separate punishments for arson,

conspiracy to commit arson, and for using fire to commit conspiracy to commit arson.” The statutory

language of 18 U.S.C. § 844(h) contains language indicating an intent that the offense be punished

cumulative ly with other offenses that closely mirrors similar language in 18 U.S.C. § 924(c).

Compare 18 U.S.C. § 844(h) (“Whoever-- (1) uses fire or an explosive to commit any felony which

may be prosecuted in a court of the United States, or (2) carries an explosive during the commission

of any felony which may be prosecuted in a court of the United States,

. . . shall, in addition to the

puni shment provided for such felony , be sentenced to imprisonment for 10 years. . . .

2 killed Diep, destroyed his van, and blew out the windows and doors of two units of the apartment

building.

Following trial by jury, Nguyen was convicted on three counts. Count 1 charged

Nguyen with conspiring to violate 18 U.S.C. § 844(i), a violation of 18 U.S.C. § 371. Count 2

charged Nguyen with damaging and destroying property that was used in interstate commerce or in

an activity affecting interstate commerce by means of an explosive, a violation of 18 U.S.C. § 844(i).

Count 3 charged Nguyen with using and carrying a firearm (which includes explosives among its

definitions under 18 U.S.C. §§921 (a)(3) and (4)) in violation of 18 U.S.C. § 924(c)(1).

On appeal, Nguyen argues that Counts 2 and 3 were multiplicitous and violated the

Double Jeopardy Clause, and that the Government failed to prove the interstate commerce element

of 18 U.S.C. § 844(i).

In United States v. Singleton

, 16 F.3d 1419 (5th Cir. 1994), we addressed the question

whether the Double Jeopardy Clause prevented the Government from charging the defendants with

both carjacking, a violation of 18 U.S.C. § 2119, and t he use or carrying of a firearm during or in

relation to a crime of violence, a violation of 18 U.S.C . § 924(c)(1). We held that the question is

whether the statutes indicate a congressional desire to impose mult iple punish ments. Id. at 1428.

Finding that § 924(c) on its face provided for mult iple punishments, we concluded that the defendants

could be tried on both counts without violating the Double Jeopardy Clause. I d. at 1429. S ingleton ’s

rationale applies equally to the instant case; we find that Nguyen’s convictions for violating §§ 844(i)

and 924(c) do not violate the Double Jeopardy Clause. 1Notwithstanding any other provision of law, th e court shall not place on probation or suspend the

sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment

imposed under this subsection run concurrently with any other term of imprisonment including that

imposed for the felony in which the explosive was used or carried ” ) with 18 U.S.C. § 924(c) (1)

(“Whoeve r, during and in relation to any crime of violence or drug trafficking crime . . . uses or

carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug

trafficking crime

, be sentenced to imprisonment for five years.

. . . Notwithst anding any other

provision of law, the court shall not place on probation or suspend the sentence of any person

convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this

subsection run concurrently with any other term of imprisonment including that imposed for the

crime of violence or drug trafficking crime in w hich the firearm w as used or carried” ) (emphasis

added).

Although a faithful applic ation of S ingleton to Corona would seem to warrant the

same result as in Singleton

, C orona never specifically addressed whether this language in Section

844(h) indicates an explicitly stated intent by Congress to impose the offense cumulatively with other

offenses. In any case, Corona can be distinguished from the instant case in a number of ways. For

example, Nguyen’s convictions a ro se under three separate statutes, and did not involve multiple

subsections of the same statute, unlike Corona

. Furthermore, the instant case essentially involves

several offenses-- i.e.

, using an explosive in a crime of violence (§ 924(c)(1)) and destroying property

used in commerce (§ 844(i)), in addition to the conspiracy count--rather than the “arson/conspiracy

to commit arson/using fire to conspire to commit arson” triple redundancy that arose in Corona

. Most importantly, Corona did not involve 18 U.S.C. § 924(c)(1), and Singleton

, the earlier of the

two decisions, is directly on point. We are bo und by S ingleton ’s holding that Section 924(c)’s

cumulative offense language authorizes Section 924(c)(1) to be imposed cumulatively with other

offenses.

3

As for Nguyen’s Interstate Commerce argument, we find Russell v. United States

, 471

U.S. 858, 105 S. Ct. 2455 (1985), controlling, at least until the Supreme Court reconsiders it in light

of United States v. Lopez

, 514 U.S. 549, 115 S. Ct. 1624 (1995). In R ussell , the Suprem e Court

observed regarding § 844(i): “In sum, the legislative history suggests that Congress at least intended

to protect all business property

, as well as some additional property that might not fit that description,

but perhaps not every private home.” I d. at 862, 105 S. Ct. at 2457. The Court went on to state that

while the statute “[b]y its terms

. . . only applies to property that is ‘used’ in an ‘activity’ that affects

commerce,” the local re nt al o f an apartment was sufficient to fall within this category. I d. I n the

instant case, the van that exploded was used to provide maintena nce supplies for the building, the

building was also damaged, and two of the building’s apartments were being used as business offices.

Pursuant to Russell, the rental property damaged by Nguyen’s explosion was property being “‘used’

in an ‘activity’ that affects commerce,” and thus interstate commerce, within the meaning of § 844(i).

For the reasons discussed above, Nguyen’s sentences are AFFIRMED

.4

ENDRECORD5

EDITH H. JONES, Circuit Judge, Dissenting:

I respectfully dissent from affirming this conviction

because it is an abuse of the federal government’s authority to

prosecute this local revenge murder. In U nited States v. Lopez

,

514 U.S. 549, 115 S.Ct. 1624 (1995), the Supreme Court reminded the

courts to police the borders of federalism wi th new care and due

regard for the unique historical primacy of states in local law

e nforcement. I do not see how a killing of one man by his

acquaintance can be a federal offense simply be cause the killer

used a car bomb and de minimis damage was done to adjacent rental

property.

The issue in this case is not Congress’s power to

criminalize the act of maliciously damaging or destroying, or

attempting to damage or destroy

b y means of fire or an explosive, a n y building, vehicle, or other real or personal

property used in interstate or foreign

commerce or in any activity affecting

interstate or foreign commerce.

18 U.S.C. § 844(i). Nor is it an issue here whether an explosion

perpetrated on local rent property can be federally prosecuted,

because the S upreme Court has held that such rental activity

affects commerce. R ussell v. United States

, 471 U.S. 858, 862, 105

S. Ct. 2455, 2457 (1985). While R ussell ’s conclusion that local

rent property “affects commerce” is not as demanding as the Lopez

“substantial effects” test, R ussell binds us until it is

reconsidered by the Supreme Court. S ee United States v. Rawls

, 85

F.3d 240, 242-43 (5th Cir. 1996) (observing that, although 182 Lopez described three classes of valid legislation under the commerce clause: legislation that

regulates “the use of the channels of interstate commerce;” that which re gulates or protects “the

instrumentalities of interstate commerce, or persons or things in interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;” and

that which regulates even local activities that “substantially affect” interstate commerce. L opez

, 514

U.S. at ___, 115 S.Ct. at 1629-30. The federal arson statute is among the third class. S ee Russell

, 471 U.S. at 862, 105 S. Ct. at 2457 (discussing the effect on co m merce of the local rental of an apartment, and Congress’s power to regulate this activity).

6 U.S.C. § 922 would not meet Lopez ’s requirements for a sufficient

nexus to commerce if the matter were considered res nova

, this

court was bound by Scarborough v. United States , 431 U.S. 563, 97

S. Ct. 1963 (1977), which dealt with a predecessor to 18 U.S.C. §

922(g)); Rodriguez de Quijas v. Shearson/American Express, Inc.

,

490 U.S. 477, 484-85, 109 S. Ct. 1917, 1921-22 (1989) (instructing

that when “a prec edent of this Court has direct application in a

case, yet appears to rest on reasons rejected in some other line of

decisions, the Court of Appeals should follow the cas e which

directly controls, leaving to this Court the prerogative of

overruling its own decisions”).

Given these premises, however, Lopez still does no t

permit me to agree that inflicting “by means of fire or explosive”

any damage, no matter how trivial or unexpected, on a local rental

property is an act that “substantially affects” interstate

commerce. 2 L opez indicated that when, as here, a fed eral statute

contains a jurisdictional element reflecting Congress’s intent to

regulate interstate commerce, case-by-case inquiry remains

necessary to maintain the limits on federal power. S ee Lopez

, 514

U.S. at

___, 115 S.Ct. at 1631; United States v. Pappadopoulos

, 64

F.3d 522, 526 (9th Cir. 1995) (holding that L opez ’s “substantial3 See, e.g.

, Hodel v. Virgi nia Surface Mining & Reclamation Assn.

, Inc., 452 U.S. 264,

276-280, 101 S.Ct. 2352, 2360-2361 (1981) (upholding regulation of intrastate coal mining);

Wickard v. Filburn , 317 U.S. 111, 63 S.Ct. 82 (1942) (upholding regulation of production and

consumption of home-grown wheat under the Commerce Clause).

7 effects” analysis must be applied to ensure the constitutionality

of a statute that relies on a jurisdictional element in individual

cases where the significance of the contacts to interstate commerce

is at issue). The substantial effects test articulates the limit.

Admittedly, what constitutes a substantial effect may

impose more of a rhetorical than an actual limit on federal

authority, as is exemplified by some of the economic regulation

c ases cited in Lopez

. 3 In the criminal area, however, the

substantial effects test is meaningful, because crimi nal law

enforcement has traditionally been a state responsibility.

Further, the effects of crime are ordinarily wholly local and often

non-commercial. If it seems mere rhetoric to confine federal

legislation to local activities w ith a substantial effect on

interstate commerce, it is untenable to judicially eliminate either

the word “interstate” or “commerce” from the Constitution and

“convert congressional Commerce Clause authority to a gener a l

police power of the sort held only by the States”. L opez

, 514

U.S. at ___, 115 S. Ct. at 1625.

Taking Russell as still-guiding law after Lopez , the

application of the substantial effects test to this statute may be

easily described: a defendant’s act or attempt at maliciously

damaging or destroying, by means of fire or an explosive, property

used in interstate commerce must have [or intend] a direct impact4 St rict ly speaking, t he regulated activity under § 844(i) is not simply propert y affect ing

commerce, but the arson or destruction of such property

. S ee

, e.g.

, United States v. Gaydos

, 108

F.3d 505, 508 (3d Cir. 1997) (discussing “ Russell 's interpretation of § 844(i), and its holding, that

the statute constitutionally regulates arson of business property ”); United States v. Pappadopoulos

, 64 F.3d 522, 526 (9th Cir.1995) (“the conduct regulated by section 844(i)--arson--is not commercial

or economic in nature”). After L opez

, courts should consider on a case-by-case inquiry whether this

effect on commerce is substantial. See, e.g.

, United States v. Corona , 108 F.3d 565, 570 (5th Cir.

1997) (Congress may constitionally criminalize “the burning of buildings rented by cab companies for

commercial purposes [under § 844(i)] because those burnings can have a substantial effect on

interstate commerce”) (emphasis added); Pappadopoulos

, 64 F.3d at 527-28 (the destructi on of a

privately owned house did not substantially affe ct int erstate commerce, because the house’s sole

connection to interstate commerce was a natural gas line).

5 This court’s recent decision, U nited States v. Corona

, 108 F.3d 565 (5th Cir. 1997), should

be distinguished. In C

orona

, the defendants targeted an arguably residential (and non-commercial)

house, but the fire spread to a building next door with a sufficient connection to commerce to support

a conviction under § 844(i). Unlike the instant case, in C orona the damage to the adjacent structure,

a commercially-rented taxi cab warehouse and cab employee lounge, was substantial--the roof

collapsed, and the building along with one of the taxicabs was destroyed. I d

. at 568; United States

v. Corona , 934 F. Supp. 740, 741-43 (E.D. La. 1996), aff’d , 108 F.3d 565 (5th Cir. 1997).

8 on the property’s ability to be u sed in that fashion. Thus,

intentional or attempted incineration of the property substantially

affects interstate commerce. 4 Setting off a firecracker on the

floor of a department store, however, or causing minor damage to

property used in interstate commerce as a result of a noncommercial arson on nearby property does not. 5

The evidence in this case plainly proves a crime that had

no connection to interstate commerce and that only ac cidentally,

insubstantially damaged commercial rental property. Appellant

Nguyen arranged for a bomb to be placed in Diep’s vehicle, killing

Diep and dest roying the van, but barely grazing the adjacent

apartment complex. The government argued at trial that the

privately owned van affected interstate commerce because the victim

used it to transport items relating to his job as a maintenance man

for the apartment complex. This single connection is too tenuous9

to support federal jurisdiction. S ee United States v. Collins

, 40

F.3d 95, 99 (5th Cir. 1994) ( reversing convictions and sentences

for violation of 18 U.S.C. § 1921(a) and 18 U.S.C. § 924(c)(1)

because theft of a vehicle which prevented the owner from attending

a busines s meeting was “too attenuated to satisfy the interstate

commerce requirement”), cert. denied

,

___ U.S.

___, 115 S. Ct. 1986

(1995). As for the apartment building, there was minor damage to

some French doors and to the juncture of the 2x6 planks that formed

part of the eaves. There was no structural damage to the building,

and it was not closed down for repairs. If this is a federal crime

it is hard to conceive of any arson or explosive-related case that

would not be.

The federal arson/explosive statute expressly seeks to

protect prope rty used in commerce

. The use of this property had

nothing to do with the crime, and the superficial scrapes the

building received in no way impaired its position in commerce.

Based on a post- Lopez individ ual inquiry as to whether the

defendant’s car-bombing of his acquaintance substantially affected

interstate commerce, the answer seems to me easy. Broken windows

a nd split eaves do not make a federal case. I respectfully

dissent.