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March 1, 1993


The opinion of the court was delivered by: OBERDORFER

 A federal grand jury has returned, and the United States is prosecuting in federal court, an indictment that alleges that on June 21, 1992, within the District of Columbia, defendant, Jeff Jerome Montgomery, maliciously damaged and attempted to destroy, by means of fire, the building located at 4301 Argyle Terrace, N.W., in Washington, and a 1992 Pontiac van garaged there, both of which were "used in activities affecting interstate commerce" *fn1" in violation of 18 U.S. Code § 844(i). The indictment also charges essentially the same conduct as a violation of D.C. Code §§ 22-401 and 403. Finally, the indictment charges that Montgomery violated D.C. Code § 22-403 on September 8, 1991, when he broke and destroyed "private property not his own, consisting of a window of a value of less than $ 200 located at 4301 Argyle Terrace N.W."

 The defendant has entered a plea of not guilty and has given notice of possible reliance on the insanity defense. A magistrate judge ordered that the defendant be held without bond and that ruling was approved by Chief Judge Penn. In pretrial proceedings, the defendant has been adjudged competent to stand trial, but he is now confined at the District of Columbia's St. Elizabeth's Hospital. Elizabeth Teegarden, Ph. D., Chief of the Evaluation Unit of the Forensic Inpatient Services of the District of Columbia Commission on Mental Health Services, has filed a report that relates the opinions of two psychiatrists, Drs. Glenn Miller and Mitchell Hugonnet, that "Montgomery was suffering from paranoid delusions at the time of the instant offense in such a way that he was unable to appreciate the nature and quality or the wrongfulness of his actions." They diagnosed his disorders as delusional (paranoid) disorder, persecutory type, alcohol abuse, cannabis abuse, cocaine abuse, and personality disorder, NOS, with antisocial features. Meanwhile, both the prosecution and the defense have filed a number of motions, one of which is defendant's motion to dismiss the indictment for lack of federal jurisdiction.

 The defendant's motion to dismiss will be granted effective March 8, 1993, because the United States has failed to carry its burden of establishing that the building and the van which were burned were used in an activity affecting interstate commerce within the meaning of the Commerce Clause and 18 U.S.C. § 844(i), as construed in Russell v. United States, 471 U.S. 858, 859, 85 L. Ed. 2d 829, 105 S. Ct. 2455 & n.4 (1985). The brief Russell opinion cited with approval the statement in Scarborough v. United States, 431 U.S. 563, 571, 52 L. Ed. 2d 582, 97 S. Ct. 1963 (1977), that:

As we have previously observed, Congress is aware of the "distinction between legislation limited to activities 'in commerce' and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce." (Emphasis added.)

 In construing the clause and the statute, the Russell opinion further stated:

In the floor debates on the final bill, although it was recognized that the coverage of the bill was extremely broad, the Committee Chairman, Representative Celler, expressed the opinion that "the mere bombing of a private home even under this bill would not be covered because of the question whether the Congress would have the authority under the Constitution." 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.

 Russell, 471 U.S. at 861 (citations omitted).

 The Russell opinion leaves it to courts to draw on a case-by-case basis the line between those private homes (and, by necessary inference, those private vehicles) which are used in activities affecting interstate commerce and those which are not. Such ambiguity in a criminal statute requires construction of it in accordance with the principles of lenity. See, e.g., United States v. Mennuti, 639 F.2d 107, 113 (2d Cir. 1981) (Friendly, J.). *fn2"

 As then-Justice Rehnquist has observed with respect to "the broad dicta" with which the Supreme Court has described the reach of Congress' power to regulate pursuant to the Commerce Clause: "there are constitutional limits." Hodel v. Virginia Surface Min. & Reclam. Ass'n., 452 U.S. 264, 309, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981) (concurring opinion). He reiterated the concern expressed by Chief Justice Hughes that the commerce power "not be extended so as to . . . obliterate the distinction between what is national and what is local and create a completely centralized government." Id., citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 81 L. Ed. 893, 57 S. Ct. 615 (1937). Finally, Justice Rehnquist stated:

It would be a mistake to conclude that Congress' power to regulate pursuant to the Commerce Clause is unlimited. Some activities may be so private or local in nature that they simply may not be in commerce. Nor is it sufficient that the person or activity reached have some nexus with interstate commerce. Our cases have consistently held that the regulated activity must have a substantial effect on interstate commerce.

 Hodel, 452 U.S. 310 at 310-11 (emphasis in original).

the Supreme Court's admonitions that "ambiguity" concerning the ambit of criminal statutes should be resolved in the favor of lenity, Ruiz v. United States, 401 U.S. 808, 812 . . . (1971) and that "when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definitive." [citations omitted] Moreover, . . . "unless Congress conveys its purpose clearly, it will not be deemed to have changed the federal-state balance" in the prosecution of crimes.

 Mennuti, 639 F.2d at 113.

 The simple facts set out in the compact Russell opinion further inform, in the context of criminal law, the broad, but not unlimited, reach of section 844(i) to private residences and, by reasonable inference, to private vehicles. Russell owned an urban building which housed residential apartments. He let the apartments for rent, and made his home elsewhere. In a scheme to defraud the carrier of fire insurance on the building, he hired a convicted felon to set it on fire. The "torch" attempted to carry out his nefarious mission by igniting a pipe which carried natural gas into this residential apartment building. The attempt failed and he turned Russell in to the FBI instead of making the second attempt requested. The Supreme Court concluded, as a matter of law, that the rental of real estate is "unquestionably" an activity that affects commerce. Said the Court:

The local rental market of an apartment unit is merely an element of a much broader commercial market in rental properties. The congressional power to regulate the class of activities that constitute the rental market for real estate includes the power to regulate individual activity within that class.
The petitioner was renting his apartment building to tenants at the time4 he attempted to destroy it by fire. The property was therefore used in an activity affecting commerce within the meaning of the Act.

 Id. at 862.

 The contrast between the simple facts of Russell and the prosecutor's proffer here (a copy of which is attached) is striking. Judge and Mrs. Mize own and occupy a private home in the District of Columbia and regularly park their van in an attached garage. When the garage and van were burned, Judge Mize was not engaged in any activity affecting interstate commerce, substantially or otherwise. See United States v. Monholland, 607 F.2d 1311, 1315 (10th Cir. 1979) (statute not applicable to burning of state judge's truck used for transportation to and from work but with no "real relationship to commerce").

 Viewing Mrs. Mize's activity, as proffered by the prosecution, in perspective and in light of the principle of lenity, it is apparent that only a minor preparatory fraction of her nurse training activity occurred in the family home. Nor does her infrequent use of the family van primarily for occasional shopping in the Washington suburbs and one trip to a nurse-training seminar in Williamsburg, Virginia, constitute use of the van in an activity affecting interstate commerce within the meaning of this criminal statute and the Commerce Clause, as fairly construed in light of Russell and Mennuti.

 If Mrs. Mize's part-time, $ 5500-per-year job in nurse training is, in any sense, "commerce," it is not of a kind or magnitude which federal law and the federal courts have regulated civilly, except in the most limited and tangential ways. Congress may very well have acted with restraint in such situations to minimize the Commerce Clause problems such as those which lurk here. See, e.g., Independent Ladies' Garment Workers' Union v. Donovan, 232 U.S. App. D.C. 309, 722 F.2d 795 (D.C. Cir. 1983) (piece work in home is prohibited in certain industries to facilitate enforcement of minimum wage law obligations of an employer engaged in demonstrably interstate commerce business); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 247, 13 L. Ed. 2d 258, 85 S. Ct. 348 (section 201(b)(1) exempts from the federal public accommodations law "any inn, hotel, motel, or other establishment . . . which contain not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence").

 But this is a criminal prosecution, attempting to apply a federal criminal statute to a garden variety arson such as has been traditionally and severely punishable in a local court pursuant to local law. *fn5" In this criminal case, it is appropriate to construe both the Commerce Clause and Section 844(i) with restraint and according to the principle of lenity. Application of that principle leads to the conclusion that Congress was not authorized by the Commerce Clause, and, in any event, has not stated with sufficient clarity an intent, to federalize a residential arson case like this. In particular, the Russell facts do not establish a precedent for applying section 844(i) to the potpourri strung together in the prosecution's proffer here. *fn6" If the proffered facts can prove a federal crime within the meaning of the Commerce Clause and section 844(i) as construed in Russell and Mennuti, it is difficult to imagine any rational and manageable limit on the application of that statute to an urban (or suburban) home, or a vehicle garaged there, particularly in communities like Kansas City, Missouri/Kansas and the metropolitan areas of New York and Washington.

 In sum, it is inconceivable that the Framers of the Commerce Clause or even the Congress that approved Section 844(i) contemplated that such a statute (originally aimed at protecting from attack by terrorists and racketeers property substantially used in genuine interstate commercial activity) would be applied to convert into enclaves protected by federal criminal law every private home occupied, and every vehicle used, for example, by the hundreds of thousands who work in a metropolitan area like Washington, do a modicum amount of work at home, and drive privately owned vehicles back and forth across the District line in the course of their daily routine.

 There remain for consideration counts 3, 4, and 5 alleging violations of District of Columbia law. These are pendent charges. Jurisdiction is authorized under D.C. Code § 11-502(3) and is a matter of discretion. United States v. Kember, 222 U.S. App. D.C. 1, 685 F.2d 451, 454-55 (D.C. Cir. 1982) (federal court has discretion to retain case where retention is warranted by remaining matters of federal concern and judicial economy); United States v. Kember, 208 U.S. App. D.C. 380, 648 F.2d 1354, 1359 (D.C. Cir. 1980) (federal jurisdiction over offenses under District of Columbia law is appropriate in some cases even after disposition of federal offenses is reached). On this eve of trial with all the preparation that has taken place, it ...

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