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. e du/thir dc ir c uit_1999/145Filed 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 AppellantPaul 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 an d abetting the use of an explosive to destroy propert y used in an activity affecting interstate commerce in violat ion 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 e stablish the jurisdictional element of the offense, and we w ill

reverse.

I.

On the morning of December 19, 1995, Joseph's mothe r, Lee Ann McGuire, was injured when a pipe bomb explo ded 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 Pennsylvan ia, and operated locally. Mrs. McGuire and Ms. Murray had a n arrangement with a local church whereby they would use the church's kitchen to prepare food for their cate ring 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 Toy ota, to transport items for their catering business.

On the morning of December 19, 1995, that Toyota wa s destroyed by a pipe bomb which had been planted ben eath the driver's seat. The explosion caused the caterin g business to stop operating for approximately three months. However, the interruption was not due to the loss o f the Toyota, or anything in it. Rather, it resulted from Diane

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

injuries sustained when the bomb exploded.

The crime remained unsolved for nearly a year. Howe ver, 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 M ingle to "take care of" Mrs. McGuire because they resente d Mrs. McGuire's interference in their relationship. McGui re'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 Mr s. McGuire's car. McGuire was convicted of violating 1 8 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 affectin g interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,00 0, or both;

"Thus, an essential element of the crime of arson u nder S 844(i) is that the property was used in any activ ity affecting interstate or foreign commerce." United S tates v. Pappadopoulos, 64 F.3d 522, 524 (9th Cir. 1995) (ci ting United States v. Karlic, 997 F.2d 564, 571 (9th Cir . 1993))

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1. In this appeal, McGuire challenges the authentic ity of his statement, and argues the district court violated the corpus d electi rule admitting
it. However, we need not resolve those issues because o f our determination that the government failed to establish the jurisdi ctional element of the
crime.

3(internal quotations omitted). This jurisdictional element,

like all other elements of any criminal offense, mu st be established beyond a reasonable doubt. Pappadopoulo s, 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 (1 995). The constitutionality of 18 U.S.C. S 844(i) is not impl icated in this appeal. In Lopez

the Supreme Court invalidated the Gun Free S chool Zones Act of 1990, which made it a federal o ffense for any individual knowingly to possess a firear m at a place that the individual knows, or has reas onable cause to believe, is a school zone. The Cour t . . . observed that [that Act] neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commer ce.

United States v. Gaydos, 108 F.3d 505, 508 (3rd Cir . 1997) (internal quotation marks and citations omitted). I n 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 mu st 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 evid ence that
was introduced to establish the interstate commerce nexus required by S 844(i).2

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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 wit nesses. . . . 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 reason able doubt.' " United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (i nternal citations omitted).

4B.

At trial, the prosecutor sought to establish the jurisdictional nexus required by this statute by re lying 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 b ottle 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 o r Diane Murray purchased the orange juice at a Sam's Club in Altoona Pennsylvania for use in a catering job s cheduled for December 20, 1995. Although the government conc eded that the catering business itself was a small, intr astate activity, the prosecutor argued that the bottle of orange juice was sufficient to satisfy the interstate comm erce requirement of 18 U.S.C. S 844(i) because the Flori da origins of the juice established that the activitie s of LD&B catering had an interstate effect, and the Toyota w as therefore used in an activity affecting interstate commerce.

On appeal the government suggests that we should no w look past the orange juice and consider other items that were in the trunk, the fuel in the gas tank, and th e 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 Tropican a orange juice for a catering job the next day." Appe llee's Br. at 24. The prosecution also states that the caterin g business "was a licensed business that had some eff ect upon interstate commerce. The government is not req uired
to show that this effect was itself substantial." A ppellee's Br. at 24. However, the only evidence that the gove rnment introduced at trial of the effect the catering busi ness had on interstate commerce pertained to the production, transportation, and distribution of the orange juic e. During the trial, the court expressed its concern about th e sufficiency of that proof:

[The Court]: it boils down to a very simple question . . . why is this a federal case. .. Does th is case,. . .as

5a federal case come down to nothing more tha n 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 interst ate commerce.

So it is our position that we have establish ed from an evidentiary standpoint that LD&B Catering, b y virtue of its existence as a for profit commercial ent erprise, supplied by food items purchased at distribu tors, to include out of state suppliers, is by its na ture a commercial enterprise which affects intersta te

commerce.

***

we have sought to demonstrate, . . . that th e property in question have (sic) a de minimis effect o n interstate

commerce.

App. 566-68. The trial judge then summarized the po sitions of the defendant and the prosecution. The court not ed that the defendant was arguing that, under Lopez, the prosecution must show that the act he was accused o f 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 t his statement of his position, and elaborated as follow s:

I would concede the point. I am and have pro ceeded 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 includ e the fact perhaps that the automobile was supplied by gasoline which had moved in interstate commerce, or t o show that the building in which LD&B Catering ope rated, that is the church, was supplied by heat and fuel or an electrical grid which had moved in interstat e commerce . . . It is my position that the standard is that it have a de minimis effect, and that I have met tha t burden.

App. at 570. However, despite these theoretical ass ertions, the only evidence that was offered was summarized i n the following proffer:

6I'm prepared to show, for instance, that Tro picana

orange juice, that being the single item whi ch was located in the trunk of the vehicle, had mov ed in
interstate commerce.

App. at 571.

The jury convicted the defendant as charged in the single count indictment. Following the conviction, the dis trict court issued a Memorandum Order explaining its reje ction of the defendant's previously filed motion for judg ment of acquittal under Fed. R. Evid. 29(b). The district c ourt ruled that the carton of orange juice was sufficient to s atisfy jurisdiction as it established that the catering bu siness was an activity that affected commerce. See Dist. Ct. O p. 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 orang e juice is sufficient to support the jurisdictional e lement of S 844(i) relies in large part upon Russell v. Unite d States, 471 U.S. 858 (1985). There, the defendant was convi cted of violating S 844(i) based upon the arson of a rental property which he owned, earned rental income from, and trea ted as business property for tax purposes. On appeal he ar gued that the building was not commercial or business pr operty, and therefore the charged arson lacked the intersta te commerce nexus required under 18 U.S.C. S 844(i). T he 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 s uggests that Congress at least intended to protect all busi ness property, as well as some additional property that might not fit that description . . ." Id. at 86.

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3. In the Memorandum Order, the court stated:"I hav e expressed to counsel for both parties my own view that the inter state commerce nexus is a thin one." Dist. Ct. Op. at 3.

7Ten years later the Supreme Court reconsidered the

scope of the Commerce Clause in Lopez. After review ing the evolution of Commerce Clause jurisprudence the Cour t
stated:

But even these modern-era precedents which h ave expanded congressional power under the Comme rce Clause confirm that this power is subject to outer limits. In Jones & Laughlin Steel, the Court warned that the scope of the interstate commerce po wer must be considered in the light of our dual syste m 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 obliterat e the
distinction between what is national and wha t is local and create a completely centralized governme nt. . . . Since that time, the Court has heeded that w arning
and undertaken to decide whether a rational basis existed for concluding that a regulated acti vity sufficiently affected interstate commerce.

514 U.S. at 556-57 (internal quotation marks and ci tations omitted).

The government quite correctly points out that Cong ress can regulate an intrastate activity "when the cumul ative effect of a collection of such events might ultimat ely have substantial effect on interstate commerce." Appelle e's Br. at 23 (quoting United States v. Rybar, 103 F.3d 273, 2 83 (3d Cir. 1996)). The government asserts that it need on ly show
that the arson here had a de minimis effect because Congress can properly regulate the interstate activ ity of which it was a part. The district court agreed. See Dist. Ct. Op. at 2 ("I conclude that Lopez does not change th e applicable standard for judging the sufficiency of the evidence. I therefore apply only a de minimis stand ard.") (citing Russell).

The defendant, on the other hand, argues that when Congress imposes a regulation under its authority t o "regulate those activities having a substantial rel ation to interstate commerce," the government can prosecute an activity pursuant to such regulation only if the ac tivity has

8a "substantial effect" on interstate commerce. Appe llant's

Br. at 20 & 24.

We reversed the conviction in Gaydos, because the government had not satisfied the interstate commerc e element of S 844(i). Although the defendant in Gayd os did not preserve her challenge to the sufficiency of th e jurisdictional evidence, we reviewed the sufficienc y 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 m arket. 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 ab ove, on appeal we first held that Lopez did not undermine t he constitutionality of S 844(i). We then analyzed the broad pronouncements of Russell in context with the Supre me Court's subsequent amplification in Lopez as part o f our plain error review of the sufficiency of the eviden ce. Our review focused upon cases involving arson of rental property. We concluded:

Collectively, this case law suggests that on ce the business nature of the property at issue is established, courts will presume, absent indicia of an in tention to permanently remove the property from the str eam of commerce, that the requisite nexus between t he property and interstate commerce is satisfie d, notwithstanding temporary changes or modific ations in the use of the property. We note that in eac h of these cases, however, there was a clear intention that the property at issue either remain in, or retur n to, the

stream of commerce.

Id. at 509. We held that, inasmuch as Gaydos' prope rty was uninhabitable, and she had no intention of ever rehabilitating it or renting it, the property did n ot have a sufficient nexus to interstate commerce to support a conviction under S 844(i).

9We conclude that a reasonable juror could no t have

done more than speculate that the house . . . had a real prospect of generating any future renta l revenue.

. . . we hold that the government could not prove beyond a reasonable doubt that the house . . . was used in an activity affecting interstate com merce.

Id. at 511.

The inquiry in Gaydos centered upon whether the property was "used," as it was uninhabitable and ce rtain to remain so.4 Here, much of the argument focuses upon the "interstate commerce" prong of S 844(i), as the Toy ota was used "periodically" in Mrs. McGuire's catering busi ness. Nevertheless, we consider both the nature and frequ ency of that use, as well as the extent to which the cateri ng activity affected commerce, in deciding if the evidence supp orts the exercise of federal jurisdiction under Lopez. See G aydos, 108 F.3d at 508 (stating the need for a case-by-cas e inquiry where statute contains a jurisdictional element to" ensure . . . that the [activity] in question affects inter state commerce").

McGuire's argument that the government must show a
"substantial" effect on interstate commerce to sust ain 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 proc eeds. The government argued that jurisdiction had been establ ished by proof that the defendant's home received natural gas from out-of-state sources. The court of appeals rev ersed. The court held that Lopez precluded applyingS 844(i ) to the arson of a private residence based only upon that p roperty's receipt of natural gas from out-of-state. Id. at 52 7.

The government counters McGuire's reliance upon Pappadouplouos by arguing that case is inapposite h ere

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

affects interstate commerce for purposes of S 844(i). Court s interpreting Russell have held that `rental property is per se property used in an activity affecting interstate commerce.' " Gaydos, 108 F.3d at 509.

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

nexus relied upon there (the home's connection to, and use of, an interstate supply of natural gas) did not sa tisfy S 844(i) because the property was not used in inter state commerce. Appellee's Br. at 21-22.

The district court dismissed the holding in Pappadouplouos, based upon its conclusion that Lope z 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 cas es of United States v. Stillwell, 900 F.2d 1104 (7th Cir. 1990), and United States v. Metzger, 778 F.2d 1195 (6th Ci r. 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. Lope z, 514 U.S. at 555. Though certain conduct may appear to b e the quintessence of local activity, if we "follow the m oney" the trail we will always disclose some effect on inters tate and/or foreign commerce. For example, though the ef fect is highly attenuated, driving a few blocks to pick up one's children (consumption of gasoline refined from fore ign oil,
and wear and tear on vehicle manufactured in anothe r state or country) or eating dinner in front of one' s own television set (consuming food and beverages from o utside 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 co mmerce. 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 overs eas.

Thus, the district court's conclusion that a de min imis effect on interstate commerce (no matter how attenu ated) can support the exercise of federal jurisdiction af ter Lopez,

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5. Assuming there are communities where this still occurs.

11could be stretched to include driving one's daughte r to a

neighbor's house to deliver a single box of Girl Sc out cookies. In view of the Supreme Court's pronounceme nts in Lopez, we do not believe that such an inconsequenti al effect can support the exercise of federal jurisdiction ov er a purely intrastate concern without obliterating the distinctions between state and federal jurisdiction

.

The prosecution recognizes this. Though the governm ent has argued throughout these proceedings that it nee d only show a de minimis effect on interstate commerce, it cites United States v. Denalli, 73 F.3d 328 (11th Cir. 19 96) (per curiam), in conceding that "there are uses so trivi al 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, i n violation of S 844(i). The government sought to est ablish jurisdiction by showing that Mr. Federles worked fo r 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 hom e on which he prepared memoranda for his employer on a weekly basis. The court, however, noted that Federl es' 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 memoran da and personally deliver them to his work place inste ad of transmitting them electronically. "He conducted no further activity for [his employer] at his residence that a ffected
interstate commerce." Id. at 330. The court conclud ed that
this was not sufficient to establish that Federles' home was used in an activity affecting commerce, and reverse d the
conviction.6

The reasoning in Denalli was criticized in United S tates v. Hicks, 106 F. 3d 187 (7th Cir. 1997), wherein the c ourt relied upon the aggregate effect of "local" conduct to uphold the exercise of jurisdiction. "[I]t doesn't take an y fancy intellectual footwork to conclude that the aggregat e effect of

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6. Inasmuch as Federles was living in his home at t he time it burned, we
assume that it was connected to interstate utilitie s. See Pappadopoulos,

supra.

12such arsons on commerce is substantial." Id . at 18 9. The

Hicks court disagreed with the holding in Denalli a nd Pappadopoulos, because it felt that those cases err oneously failed to consider the aggregate effect of the crim inal
conduct. The court in Hicks believed that the Comme rce Clause clearly allowed the federal government to ex ercise 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. Co rona, 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 tes t' to its logical extreme would for all practical purposes gr ant 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 precl ude applying the "aggregation test" so broadly that it sweeps within its reach every use of every property that h as an effect on interstate commerce no matter how diluted .7 The

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7. We do not, however, mean to suggest that a court can never consider the aggregate effect upon commerce. See United Stat es. v. Gentile, 144 F.3d 1365 (11th Cir. 1998) (court approved aggregat ing effect on interstate commerce where bomb was placed in a truc k that was subject to an interstate leasing agreement, and was control led by intended victim's employer); United States v. Chowdbury, 118 F.3d 742, 745 (11th Cir. 1997) (aggregating effects on business propert y"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 contac ts standing alone may not have been sufficient to demonstrate the req uisite `substantial' effect on interstate commerce, this court must cons ider these contacts in the aggregate") (citing Wickard v. Filburn, 317 U.S . 111 (1942)).

Although the courts that have been called upon to d etermine 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 ne ed only decide whether the record here supports the exercise of fe deral jurisdiction. Compare Latouf with Denalli.

13government 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. McGu ire asked Ms. Murray to become a partner because Mrs. McGuire's son was unwilling to get involved. App. a t 55. The government offered evidence that Mrs. McGuire u sed 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 husb and. App. at 479. It is not disputed that no business wa s lost because the Camry was partially destroyed. The mana ger of Tropicana's materials and systems testified that al though the orange juice container here could be used commercially, it was consistent with residential us e.9 App.
at 586. We do not believe that a conviction for vio lating 18 U.S.C. S 844(i) can be sustained on this record wit hout 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 comm erce. One need only look at the inventory of abandoned buildi ngs that so deplete the tax base and real estate values of s o many cities to appreciate that owning even an abandoned rental property could be interpreted as a use affecting in terstate commerce, if we were to use the "aggregation test" to
stretch interstate commerce to its furthest boundar ies. Yet,

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8. This is not a situation where the Toyota was nec essary 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 orang e juice container was the typical size that one might expect to see on th e shelf of a supermarket or neighborhood convenience store.

14we reversed the conviction in Gaydos because the ev idence

was not sufficient. Thus, our analysis here is cons istent 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 ephe meral 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 w ould be tantamount to removing the jurisdictional requir ement from S 844(i). We do not believe that the Supreme C ourt required Congress to include a jurisdictional eleme nt under Lopez only to have courts interpret the resulting s tatutes 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 sufficie nt to support a conviction under S 844(i). The Supreme Co urt recognizes that this "may in some cases result in l egal uncertainty." Lopez, 514 U.S. at 566. Yet, we canno t 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 t he evidence in a given case is sufficient to justify t he exercise of federal jurisdiction. " `[T]he question is neces sarily 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 comm erce here is so very nebulous that the evidence that was presented clearly cannot support the exercise of fe deral jurisdiction under this statute. We believe that th e evidence here would have been insufficient to support this c onviction 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

1510. In reaching our holding we do not mean to sugge st 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 evid ence presented here is not sufficient to support a conviction. by a business that is as concededly local in charac ter 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 d istrict court here erred in concluding that the government' s evidence had the jurisdictional juice needed to sup port the exercise of federal jurisdiction under S 844(i). Ac cordingly, we will reverse the judgment of conviction and rema nd 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