1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-28-1999

USA v. McGuire

Precedential or Non-Precedential:

Docket 97-3542

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Recommended Citation

"USA v. McGuire" (1999). 1999 Decisions. Paper 145.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/145
Filed May 28, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-3542 

UNITED STATES OF AMERICA 

v. 

JOSEPH T. MCGUIRE 

 Appellant 

ON APPEAL FROM THE UNITED STATES DISTRICT 

COURT FOR THE WESTERN DISTRICT OF 

PENNSYLVANIA 

Criminal Action No. 97-cr-00005-1J 

District Judge: Hon. D. Brooks Smith 

Argued: November 17, 1998 

Before: MCKEE, RENDELL & WEIS, Circuit Judges. 

(Filed: May 28, 1999) 

 Shelley Stark, Esq. (Argued) 

 Office of Federal Public Defender 

 960 Penn Avenue 

 415 Convention Tower 

 Pittsburgh, PA 15222 

 Attorney for Appellant 
 Paul J. Brysh, Esq. (Argued) 

 Bonnie R. Schlueter 

 Office of United States Attorney 

 633 United States Post Office & 

 Courthouse 

 Pittsburgh, PA 15219 

 Attorneys for Appellee 

OPINION OF THE COURT 

McKEE, Circuit Judge. 

Joseph McGuire appeals his conviction for aiding and 

abetting the use of an explosive to destroy property used in 

an activity affecting interstate commerce in violation of 18 

U.S.C. SS 2 and 844(i). For the reasons that follow we hold 

that the evidence presented was not sufficient to establish 

the jurisdictional element of the offense, and we will 

reverse. 

I. 

On the morning of December 19, 1995, Joseph's mother, 

Lee Ann McGuire, was injured when a pipe bomb exploded 

inside her Toyota Camry. Mrs. McGuire operated LD&B

Catering with her best friend, Diane Murray. LD&B 

Catering, was licensed to do business in Pennsylvania, and 

operated locally. Mrs. McGuire and Ms. Murray had an 

arrangement with a local church whereby they would use 

the church's kitchen to prepare food for their catering jobs. 

They gave the church 30% of any profit they made in return 

for the use of the kitchen. Murray and McGuire used

several different vehicles, including Lee Ann's Toyota, to 

transport items for their catering business. 

On the morning of December 19, 1995, that Toyota was 

destroyed by a pipe bomb which had been planted beneath 

the driver's seat. The explosion caused the catering 

business to stop operating for approximately three months. 

However, the interruption was not due to the loss of the 

Toyota, or anything in it. Rather, it resulted from Diane 

 2 
Murray's need to help Lee Ann McGuire recover from 

injuries sustained when the bomb exploded. 

The crime remained unsolved for nearly a year. However, 

in November 1996, agents from the Bureau of Alcohol, 

Tobacco, and Firearms questioned Joseph McGuire and his 

fiance, Kristen Markeeta. During that interrogation, 

McGuire purportedly confessed to helping a friend, Gary 

Mingle, place the bomb in McGuire's mother's car. 1

McGuire stated that he and Ms. Markeeta solicited Mingle 

to "take care of" Mrs. McGuire because they resented Mrs. 

McGuire's interference in their relationship. McGuire's 

assistance consisted of signaling Mingle by turning on a 

light on Mrs. McGuire's porch. This signaled Mingle that 

the occupants of the McGuire household were asleep and 

that it was safe for Mingle to place the bomb in Mrs. 

McGuire's car. McGuire was convicted of violating 18 U.S.C. 

S 844(i), and this appeal followed. 

II. 

A. 

18 U.S.C. S 844(i) states in relevant part: 

 Whoever maliciously damages . . ., by means of an 

 explosive, any . . . vehicle, or other real or personal 

 property used in . . . any activity affecting interstate or 

 foreign commerce shall be imprisoned for not more 

 than ten years or fined not more than $10,000, or 

 both; 

"Thus, an essential element of the crime of arson under 

S 844(i) is that the property was used in any activity 

affecting interstate or foreign commerce." United States v. 

Pappadopoulos, 64 F.3d 522, 524 (9th Cir. 1995) (citing 

United States v. Karlic, 997 F.2d 564, 571 (9th Cir. 1993)) 

_________________________________________________________________ 

1. In this appeal, McGuire challenges the authenticity of his statement, 

and argues the district court violated the corpus delecti rule admitting 

it. 

However, we need not resolve those issues because of our determination 

that the government failed to establish the jurisdictional element of the 

crime. 

 3 
(internal quotations omitted). This jurisdictional element, 

like all other elements of any criminal offense, must be 

established beyond a reasonable doubt. Pappadopoulos, 64 

F.3d at 524 (citing United States v. Nukida, 8 F.3d 665, 

669-73 (9th Cir. 1993)). 

Both parties here rely heavily on the Supreme Court's 

decision in United States v. Lopez, 514 U.S. 549 (1995). The 

constitutionality of 18 U.S.C. S 844(i) is not implicated in 

this appeal. In Lopez 

 the Supreme Court invalidated the Gun Free School 

 Zones Act of 1990, which made it a federal offense for 

 any individual knowingly to possess a firearm at a 

 place that the individual knows, or has reasonable 

 cause to believe, is a school zone. The Court . . . 

 observed that [that Act] neither regulates a commercial 

 activity nor contains a requirement that the possession 

 be connected in any way to interstate commerce. 

United States v. Gaydos, 108 F.3d 505, 508 (3rd Cir. 1997) 

(internal quotation marks and citations omitted). In Gaydos 

we upheld the constitutionality of S 844(i) against a 

challenge bottomed on Lopez. We stated: 

 Unlike the statute at issue in Lopez, S 844(i) contains 

 a jurisdictional element which ensures, on a case-by- 

 case basis, that the property in question must be used 

 in interstate or foreign commerce or in any activity 

 affecting interstate or foreign commerce. 

Id. (internal quotation marks omitted). 

Here, McGuire makes a constitutional argument, but his 

primary challenge is to the sufficiency of the evidence that 

was introduced to establish the interstate commerce nexus 

required by S 844(i).2 

_________________________________________________________________ 

2. We apply a particularly deferential standard of review when deciding 

a sufficiency of the evidence challenge. "It is not for us to weigh the 

evidence or to determine the credibility of the witnesses. . . . Rather, 

we 

must view the evidence in the light most favorable to the government, 

and will sustain the verdict if `any rational trier of fact could have 

found 

the essential elements of the crime beyond a reasonable doubt.' " United 

States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (internal citations 

omitted). 

 4 
B. 

At trial, the prosecutor sought to establish the 

jurisdictional nexus required by this statute by relying 

upon Mrs. McGuire's occasional use of her Toyota in her 

catering activity, and the contents of the Toyota's trunk 

when it exploded. The evidence established that a bottle of 

Tropicana orange juice had been in the trunk of the Toyota 

when it exploded. The raw material for that orange juice 

was produced in Florida and then shipped by "tanker" 

truck to Reading Pennsylvania where it was packaged for 

home consumption and distributed. Lee Ann McGuire or 

Diane Murray purchased the orange juice at a Sam's Club 

in Altoona Pennsylvania for use in a catering job scheduled 

for December 20, 1995. Although the government conceded 

that the catering business itself was a small, intrastate 

activity, the prosecutor argued that the bottle of orange 

juice was sufficient to satisfy the interstate commerce 

requirement of 18 U.S.C. S 844(i) because the Florida 

origins of the juice established that the activities of LD&B 

catering had an interstate effect, and the Toyota was 

therefore used in an activity affecting interstate commerce. 

On appeal the government suggests that we should now 

look past the orange juice and consider other items that 

were in the trunk, the fuel in the gas tank, and the nature 

of Mrs. McGuire's catering business. The government states 

"[a]t the time of the explosion, there were in the trunk of 

the Camry toothpicks, Tyson's chicken, and Tropicana 

orange juice for a catering job the next day." Appellee's Br. 

at 24. The prosecution also states that the catering 

business "was a licensed business that had some effect 

upon interstate commerce. The government is not required 

to show that this effect was itself substantial." Appellee's 

Br. at 24. However, the only evidence that the government 

introduced at trial of the effect the catering business had 

on interstate commerce pertained to the production,

transportation, and distribution of the orange juice. During 

the trial, the court expressed its concern about the 

sufficiency of that proof: 

 [The Court]: it boils down to a very simple question 

 . . . why is this a federal case. .. Does this case,. . .as 

 5 
 a federal case come down to nothing more than a 

 carton of orange juice? . . . 

 [The Prosecutor]: Absolutely not, Your Honor. I think 

 the question is whether LD&B Catering had an effect 

 on interstate commerce. . .. [w]hether this vehicle was 

 used in an activity, . . . affecting interstate commerce. 

 So it is our position that we have established from an 

 evidentiary standpoint that LD&B Catering, by virtue of 

 its existence as a for profit commercial enterprise, 

 supplied by food items purchased at distributors, to 

 include out of state suppliers, is by its nature a 

 commercial enterprise which affects interstate 

 commerce. 

*** 

 we have sought to demonstrate, . . . that the property 

 in question have (sic) a de minimis effect on interstate 

 commerce. 

App. 566-68. The trial judge then summarized the positions 

of the defendant and the prosecution. The court noted that 

the defendant was arguing that, under Lopez, the 

prosecution must show that the act he was accused of had 

a "substantial effect on interstate commerce" while the 

prosecution maintained that it need only satisfy a"de 

minimis test." Id at 568. The prosecutor accepted this 

statement of his position, and elaborated as follows: 

 I would concede the point. I am and have proceeded on 

 a de minimis platform. I have not presented evidence, 

 other evidence of the manner and breadth of which 

 LD&B Catering had an effect as a commercial 

 enterprise on interstate commerce, to include the fact 

 perhaps that the automobile was supplied by gasoline 

 which had moved in interstate commerce, or to show 

 that the building in which LD&B Catering operated, 

 that is the church, was supplied by heat and fuel or an 

 electrical grid which had moved in interstate commerce 

 . . . It is my position that the standard is that it have 

 a de minimis effect, and that I have met that burden. 

App. at 570. However, despite these theoretical assertions, 

the only evidence that was offered was summarized in the 

following proffer: 

 6 
 I'm prepared to show, for instance, that Tropicana 

 orange juice, that being the single item which was 

 located in the trunk of the vehicle, had moved in 

 interstate commerce. 

App. at 571. 

The jury convicted the defendant as charged in the single 

count indictment. Following the conviction, the district 

court issued a Memorandum Order explaining its rejection 

of the defendant's previously filed motion for judgment of 

acquittal under Fed. R. Evid. 29(b). The district court ruled 

that the carton of orange juice was sufficient to satisfy 

jurisdiction as it established that the catering business was 

an activity that affected commerce. See Dist. Ct. Op. at 2 

("The government's theory is that while the Toyota was not 

itself used in interstate commerce, the Toyota was used in 

an activity affecting interstate commerce."). 3 

C. 

The government's assertion that the carton of orange 

juice is sufficient to support the jurisdictional element of 

S 844(i) relies in large part upon Russell v. United States, 

471 U.S. 858 (1985). There, the defendant was convicted of 

violating S 844(i) based upon the arson of a rental property 

which he owned, earned rental income from, and treated as 

business property for tax purposes. On appeal he argued 

that the building was not commercial or business property, 

and therefore the charged arson lacked the interstate 

commerce nexus required under 18 U.S.C. S 844(i). The 

Supreme Court rejected that argument and held that"[t]he 

reference to `any building . . . used . . . in any activity 

affecting interstate or foreign commerce' " in the statute 

" `expresses an intent by Congress to exercise its full power 

under the Commerce Clause.' " Russell, 471 U.S. at 859. 

The Court concluded that "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 . . ." Id. at 86. 

_________________________________________________________________ 

3. In the Memorandum Order, the court stated:"I have expressed to 

counsel for both parties my own view that the interstate commerce 

nexus is a thin one." Dist. Ct. Op. at 3. 

 7 
Ten years later the Supreme Court reconsidered the 

scope of the Commerce Clause in Lopez. After reviewing the 

evolution of Commerce Clause jurisprudence the Court 

stated: 

 But even these modern-era precedents which have 

 expanded congressional power under the Commerce 

 Clause confirm that this power is subject to outer 

 limits. In Jones & Laughlin Steel, the Court warned 

 that the scope of the interstate commerce power must 

 be considered in the light of our dual system of 

 government and may not be expanded so as to 

 embrace effects upon interstate commerce so indirect 

 and remote that to embrace them, in view of our 

 complex society, would effectually obliterate the 

 distinction between what is national and what is local 

 and create a completely centralized government. . . . 

 Since that time, the Court has heeded that warning 

 and undertaken to decide whether a rational basis 

 existed for concluding that a regulated activity 

 sufficiently affected interstate commerce. 

514 U.S. at 556-57 (internal quotation marks and citations 

omitted). 

The government quite correctly points out that Congress 

can regulate an intrastate activity "when the cumulative 

effect of a collection of such events might ultimately have 

substantial effect on interstate commerce." Appellee's Br. at 

23 (quoting United States v. Rybar, 103 F.3d 273, 283 (3d 

Cir. 1996)). The government asserts that it need only show 

that the arson here had a de minimis effect because

Congress can properly regulate the interstate activity of 

which it was a part. The district court agreed. See Dist. Ct. 

Op. at 2 ("I conclude that Lopez does not change the 

applicable standard for judging the sufficiency of the 

evidence. I therefore apply only a de minimis standard.") 

(citing Russell). 

The defendant, on the other hand, argues that when 

Congress imposes a regulation under its authority to 

"regulate those activities having a substantial relation to 

interstate commerce," the government can prosecute an 

activity pursuant to such regulation only if the activity has 

 8 
a "substantial effect" on interstate commerce. Appellant's 

Br. at 20 & 24. 

We reversed the conviction in Gaydos, because the 

government had not satisfied the interstate commerce 

element of S 844(i). Although the defendant in Gaydos did 

not preserve her challenge to the sufficiency of the 

jurisdictional evidence, we reviewed the sufficiency of the 

evidence under a plain error standard, as a failure to prove 

an element of an offense is a fundamental error and may be 

noticed on appeal despite a defendant's failure to preserve 

the issue. Gaydos, 108 F.3d at 509. 

In Gaydos, the defendant tried to collect insurance

proceeds by scheming to burn a residential building she 

owned. The building was abandoned and the owner had no 

intention of returning the property to the rental market. 

She had stated she had no intention of removing the lead 

paint that was in the building, and she had removed

lighting and plumbing fixtures from it. As noted above, on 

appeal we first held that Lopez did not undermine the 

constitutionality of S 844(i). We then analyzed the broad 

pronouncements of Russell in context with the Supreme 

Court's subsequent amplification in Lopez as part of our 

plain error review of the sufficiency of the evidence. Our 

review focused upon cases involving arson of rental

property. We concluded: 

 Collectively, this case law suggests that once the 

 business nature of the property at issue is established, 

 courts will presume, absent indicia of an intention to 

 permanently remove the property from the stream of 

 commerce, that the requisite nexus between the 

 property and interstate commerce is satisfied, 

 notwithstanding temporary changes or modifications in 

 the use of the property. We note that in each of these 

 cases, however, there was a clear intention that the 

 property at issue either remain in, or return to, the 

 stream of commerce. 

Id. at 509. We held that, inasmuch as Gaydos' property was 

uninhabitable, and she had no intention of ever 

rehabilitating it or renting it, the property did not have a 

sufficient nexus to interstate commerce to support a 

conviction under S 844(i). 

 9 
 We conclude that a reasonable juror could not have 

 done more than speculate that the house . . . had a 

 real prospect of generating any future rental revenue. 

 . . . we hold that the government could not prove 

 beyond a reasonable doubt that the house . . . was 

 used in an activity affecting interstate commerce. 

Id. at 511. 

The inquiry in Gaydos centered upon whether the 

property was "used," as it was uninhabitable and certain to 

remain so.4 Here, much of the argument focuses upon the 

"interstate commerce" prong of S 844(i), as the Toyota was 

used "periodically" in Mrs. McGuire's catering business. 

Nevertheless, we consider both the nature and frequency of 

that use, as well as the extent to which the catering activity 

affected commerce, in deciding if the evidence supports the 

exercise of federal jurisdiction under Lopez. See Gaydos, 

108 F.3d at 508 (stating the need for a case-by-case inquiry 

where statute contains a jurisdictional element to"ensure 

. . . that the [activity] in question affects interstate 

commerce"). 

McGuire's argument that the government must show a 

"substantial" effect on interstate commerce to sustain a 

conviction under S 844(i) after Lopez draws support from 

United States v. Pappadouplouos, 64 F.3d 522, 527 (9th 

Cir. 1995). There, the defendant was convicted of 

conspiring to burn her home in violation of S 844(i) in an 

effort to collect over $4 million in insurance proceeds. The 

government argued that jurisdiction had been established 

by proof that the defendant's home received natural gas 

from out-of-state sources. The court of appeals reversed. 

The court held that Lopez precluded applyingS 844(i) to the 

arson of a private residence based only upon that property's 

receipt of natural gas from out-of-state. Id. at 527. 

The government counters McGuire's reliance upon 

Pappadouplouos by arguing that case is inapposite here 

_________________________________________________________________ 

4. "Russell established that renting real estate is an activity that 

affects 

interstate commerce for purposes of S 844(i). Courts interpreting Russell 

have held that `rental property is per se property used in an activity 

affecting interstate commerce.' " Gaydos, 108 F.3d at 509. 

 10 
because it dealt with the arson of a private residence. The 

nexus relied upon there (the home's connection to, and use 

of, an interstate supply of natural gas) did not satisfy 

S 844(i) because the property was not used in interstate 

commerce. Appellee's Br. at 21-22. 

The district court dismissed the holding in 

Pappadouplouos, based upon its conclusion that Lopez did 

not change the test adopted under earlier cases. 

Accordingly, the district court concluded that the 

prosecution need only show a de minimis effect on 

interstate commerce to support a conviction underS 844(i). 

See Dist. Ct. Op. at 2, 4 (citing the pre-Lopez cases of 

United States v. Stillwell, 900 F.2d 1104 (7th Cir. 1990), 

and United States v. Metzger, 778 F.2d 1195 (6th Cir. 

1985)). 

D. 

As we conduct our analysis we are mindful that,"in view 

of our complex society," there is virtually nothing that does 

not affect interstate commerce in some manner. Lopez, 514 

U.S. at 555. Though certain conduct may appear to be the 

quintessence of local activity, if we "follow the money" the 

trail we will always disclose some effect on interstate 

and/or foreign commerce. For example, though the effect is 

highly attenuated, driving a few blocks to pick up one's 

children (consumption of gasoline refined from foreign oil, 

and wear and tear on vehicle manufactured in another 

state or country) or eating dinner in front of one's own 

television set (consuming food and beverages from outside 

of state or country, as well as decisions on how to spend 

hundreds of millions of advertising dollars), have an 

indirect effect on interstate, and often foreign commerce. 

Even such a seemingly parochial action as borrowing a cup 

of sugar from a neighbor5 can be viewed as part of the 

stream of commerce that extends to refineries overseas. 

Thus, the district court's conclusion that a de minimis 

effect on interstate commerce (no matter how attenuated) 

can support the exercise of federal jurisdiction after Lopez, 

_________________________________________________________________ 

5. Assuming there are communities where this still occurs. 

 11 
could be stretched to include driving one's daughter to a 

neighbor's house to deliver a single box of Girl Scout 

cookies. In view of the Supreme Court's pronouncements in 

Lopez, we do not believe that such an inconsequential effect 

can support the exercise of federal jurisdiction over a 

purely intrastate concern without obliterating the 

distinctions between state and federal jurisdiction. 

The prosecution recognizes this. Though the government 

has argued throughout these proceedings that it need only 

show a de minimis effect on interstate commerce, it cites 

United States v. Denalli, 73 F.3d 328 (11th Cir. 1996) (per 

curiam), in conceding that "there are uses so trivial or 

attenuated that they are not covered by the statute." 

Appellee's Br. at 25. In Denalli, the defendant was convicted 

of burning the home of a neighbor named Federles, in 

violation of S 844(i). The government sought to establish 

jurisdiction by showing that Mr. Federles worked for a 

company that had various projects in Canada and was

engaged in interstate and foreign commerce, and 

furthermore, Mr. Federles had a computer in his home on 

which he prepared memoranda for his employer on a 

weekly basis. The court, however, noted that Federles' 

employer did not require him to have a computer in his 

home, and the computer was not connected to a modem. 

Rather, Federles would print out his weekly memoranda 

and personally deliver them to his work place instead of 

transmitting them electronically. "He conducted no further 

activity for [his employer] at his residence that affected 

interstate commerce." Id. at 330. The court concluded that 

this was not sufficient to establish that Federles' home was 

used in an activity affecting commerce, and reversed the 

conviction.6 

The reasoning in Denalli was criticized in United States v. 

Hicks, 106 F. 3d 187 (7th Cir. 1997), wherein the court 

relied upon the aggregate effect of "local" conduct to uphold 

the exercise of jurisdiction. "[I]t doesn't take any fancy 

intellectual footwork to conclude that the aggregate effect of 

_________________________________________________________________ 

6. Inasmuch as Federles was living in his home at the time it burned, we 

assume that it was connected to interstate utilities. See Pappadopoulos, 

supra. 

 12 
such arsons on commerce is substantial." Id . at 189. The 

Hicks court disagreed with the holding in Denalli and 

Pappadopoulos, because it felt that those cases erroneously 

failed to consider the aggregate effect of the criminal 

conduct. The court in Hicks believed that the Commerce 

Clause clearly allowed the federal government to exercise 

authority over the interstate supply of natural gas, and a 

residential fire that interrupted that supply posed a 

sufficient federal concern to justify the exercise of federal 

jurisdiction. 

Hicks was in turn criticized in United States v. Corona, 

108 F.3d 565 (5th Cir. 1997). In Corona, the court stated, 

"we doubt that an effect as small as the cessation of 

natural gas service to a single household satisfies the 

constitutional requirement. Taking the `effects test' to its 

logical extreme would for all practical purposes grant the 

federal government a general police power, the very danger 

the Lopez Court warned us against." Id. at 570. 

We agree that the concerns expressed in Lopez preclude 

applying the "aggregation test" so broadly that it sweeps 

within its reach every use of every property that has an 

effect on interstate commerce no matter how diluted.7 The 

_________________________________________________________________ 

7. We do not, however, mean to suggest that a court can never consider 

the aggregate effect upon commerce. See United States. v. Gentile, 144 

F.3d 1365 (11th Cir. 1998) (court approved aggregating effect on 

interstate commerce where bomb was placed in a truck that was subject 

to an interstate leasing agreement, and was controlled by intended 

victim's employer); United States v. Chowdbury, 118 F.3d 742, 745 (11th 

Cir. 1997) (aggregating effects on business property"because business 

property will almost invariably be an element of a much broader 

commercial market"); United States v. Latouf, 132 F.3d 320, 326 (6th 

Cir. 1997) (in upholding conviction under S 844(i) for arson of a 

restaurant the court noted "[a]lthough these contacts standing alone 

may not have been sufficient to demonstrate the requisite `substantial' 

effect on interstate commerce, this court must consider these contacts in 

the aggregate") (citing Wickard v. Filburn, 317 U.S. 111 (1942)). 

Although the courts that have been called upon to determine the 

sufficiency of the evidence to sustain a conviction under S 844(i) after 

Lopez do not agree if the evidence must establish a substantial effect on 

commerce, we need not decide that issue here. We need only decide 

whether the record here supports the exercise of federal jurisdiction. 

Compare Latouf with Denalli. 

 13 
government is correct in conceding that "some uses are so 

trivial or attenuated that they are not covered by[S 844(i)]." 

This prosecution is such a case. 

LD&B Catering was a "family business" consisting of Mrs. 

McGuire and her best friend Diane Murray. Mrs. McGuire 

asked Ms. Murray to become a partner because Mrs. 

McGuire's son was unwilling to get involved. App. at 55. 

The government offered evidence that Mrs. McGuire used 

her personal car (the Toyota Camry) in the catering

business "only periodically." App. at 478. However, the jury 

was required to guess at how frequently the Toyota was 

used in connection with the catering business.8 Mrs. 

McGuire and Murray also used a van, Joseph McGuire's 

truck, and a truck belonging to Diane Murray's husband. 

App. at 479. It is not disputed that no business was lost 

because the Camry was partially destroyed. The manager of 

Tropicana's materials and systems testified that although 

the orange juice container here could be used 

commercially, it was consistent with residential use.9 App. 

at 586. We do not believe that a conviction for violating 18 

U.S.C. S 844(i) can be sustained on this record without 

obliterating the intrastate/interstate distinction that was 

reinforced under Lopez. 

Moreover, although Gaydos involved an inquiry under the 

"use" prong of S 844(i), we cannot ignore that the property 

there did, in the aggregate, affect interstate commerce. One 

need only look at the inventory of abandoned buildings that 

so deplete the tax base and real estate values of so many 

cities to appreciate that owning even an abandoned rental 

property could be interpreted as a use affecting interstate 

commerce, if we were to use the "aggregation test" to 

stretch interstate commerce to its furthest boundaries. Yet, 

_________________________________________________________________ 

8. This is not a situation where the Toyota was necessary to the catering 

operation. See United States v. Michaels, 726 F.2d 1307, 1310 (8th Cir. 

1984) (stating that sufficient evidence existed to satisfy the 

jurisdictional 

element of S 844(i) when the vehicle damaged was an integral and 

necessary part of the business). 

9. Pictures introduced at trial show that the orange juice container was 

the typical size that one might expect to see on the shelf of a 

supermarket or neighborhood convenience store. 

 14 
we reversed the conviction in Gaydos because the evidence 

was not sufficient. Thus, our analysis here is consistent 

with the result we reached in Gaydos. 

We think that a conviction under 18 U.S.C. S 844(i) must 

rest upon more than the dubious interstate commerce

nexus of our hypothetical cup of sugar, or the ephemeral 

nexus of the government's carton of orange juice."[I]n view 

of our complex society," supporting this conviction by so 

slender a thread as the government presented here would 

be tantamount to removing the jurisdictional requirement 

from S 844(i). We do not believe that the Supreme Court 

required Congress to include a jurisdictional element under 

Lopez only to have courts interpret the resulting statutes in 

such a way as to remove it. 

E. 

We realize that our decision fails to establish any bright 

line test that a trial court can apply in deciding if the 

jurisdictional evidence in a given case is sufficient to 

support a conviction under S 844(i). The Supreme Court 

recognizes that this "may in some cases result in legal 

uncertainty." Lopez, 514 U.S. at 566. Yet, we cannot avoid 

all uncertainty if we are to allow for the "case-by-case 

inquiry" required under Lopez. See Gaydos, 108 F.3d at 

508 (citing Lopez, 115 S.Ct. at 1631-32). However, we 

believe that trial courts will be able to continue making 

practical, common sense determinations of whether the 

evidence in a given case is sufficient to justify the exercise 

of federal jurisdiction. " `[T]he question is necessarily one of 

degree' . . . . [T]here never will be a distinction between 

what is truly national and what is truly local, . . ." Lopez, 

514 U.S. at 567-68. 

Moreover, the "use" and effect upon interstate commerce 

here is so very nebulous that the evidence that was

presented clearly cannot support the exercise of federal 

jurisdiction under this statute. We believe that the evidence 

here would have been insufficient to support this conviction 

even under a de minimis standard, if that standard were 

applied in a manner that is consistent with Lopez. Proof 

that this single bottle of orange juice was to have been used 

 15 
10. In reaching our holding we do not mean to suggest that we are 

adopting the view of those courts that require the government to 

establish that a particular use has a "substantial" effect on interstate 

commerce under S 844(i). We only hold that the evidence presented here 

is not sufficient to support a conviction. 

by a business that is as concededly local in character as 

LD&B Catering is simply not sufficient to establish

jurisdiction under S 844(i). 

III. 

For the reasons set forth above, we hold that the district 

court here erred in concluding that the government's 

evidence had the jurisdictional juice needed to support the 

exercise of federal jurisdiction under S 844(i). Accordingly, 

we will reverse the judgment of conviction and remand this 

matter to the district court for entry of an order consistent 

with this opinion.10 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 16