[PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT                            FILED
                                                                       U.S. COURT OF APPEALS
                                        ____________                     ELEVENTH CIRCUIT
                                                                             MAY 31, 2001
                                                                          THOMAS K. KAHN
                                         No. 98-6241                           CLERK
                                        ____________

                              D.C. Docket No. 97-00157-CR-1

UNITED STATES OF AMERICA,

                                                                            Plaintiff-Appellee,
                                             versus


ALAN ODOM, BRANDY NICOLE BOONE,

                                                                       Defendants-Appellants.

                                        ____________

                      Appeals from the United States District Court
                         for the Southern District of Alabama
                                     ____________
                                    (May 31, 2001)



Before BIRCH and BLACK, Circuit Judges, and NESBITT*, District Judge.

NESBITT, District Judge:



       *
          Honorable Lenore C. Nesbitt, U.S. District Judge for the Southern District of Florida,
sitting by designation.
      Defendants-Appellants Brandy Boone and Alan Odom appeal from their

criminal convictions for conspiracy to commit arson and for conspiracy to use fire

to commit a felony prosecutable in a United States court. Both Defendants

challenge their conviction under 18 U.S.C. § 844(i), contending that the United

States failed to prove that St. Joseph’s Baptist Church, the church which the

Defendants were convicted of burning, had a sufficient connection to interstate

commerce. Both Defendants also challenge their conviction under 18 U.S.C. §

844(h)(1), contending that the indictment insufficiently defined the elements of the

offense and the jury’s verdict was inconsistent. Defendant Boone also challenges

the order requiring her to pay restitution. For the reasons stated below, we reverse

the conviction under § 844(i) and affirm on all other counts.

                                I. BACKGROUND

A. Statement of Facts

      On the evening of June 30, 1997, Defendants-Appellants Odom and Boone

attended a party in Little River, Alabama, a rural community in southern Alabama.

The partygoers, including Boone and Odom, consumed a large quantity of alcohol.

Around 10 or 11 p.m., a number of the partygoers, including Odom and Boone, left

the party in three vehicles with the purpose of finding an abandoned car and setting

it on fire. The group obtained gasoline from a local service station and then went


                                          2
in search of an abandoned car. After being unable to locate the abandoned car, the

three vehicles pulled up alongside one another at an intersection and Boone

suggested “Let’s burn the nigger church.”

      All three vehicles drove directly from the intersection to St. Joseph’s Baptist

Church, which was just down the road. Odom and Michael Woods broke into the

church and set fire to a sofa and some curtains. One of the partygoers convinced

the others to extinguish the fire and not burn down the church. After extinguishing

this fire, all of the partygoers left the church grounds. Unbeknownst to Boone or

the others, Odom and Woods returned in a short time to finish the job they started

– to burn down the church – which they successfully accomplished.

B. Proceedings Below

      A grand jury in the Southern District of Alabama issued a ten count

indictment charging Odom, Boone and others with conspiracy to commit an

offense against the United States (18 U.S.C. § 371), damaging religious property

because of the religious character of the property (18 U.S.C. § 247(a)(1)), use of

fire or explosive to commit a felony prosecutable in federal court (18 U.S.C. §

844(h)(1)), damage or destruction by means of fire or explosive of any property

used in interstate commerce or in any activity affecting interstate commerce (18

U.S.C. § 844(i)) and aiding and abetting an offense against the United States (18


                                          3
U.S.C. § 2).

      At trial, the government presented the following evidence of St. Joseph’s

Baptist Church’s connection to interstate commerce: (1) one Bible, three hymnals

and an unspecified number of Sunday School materials in the church had been

purchased from the National Baptist Publishing Board in Nashville, Tennessee; (2)

natural gas used to heat the church was purchased in Alabama, but originated in

Mississippi; (3) the church received donations from the pastor’s brother and sister-

in-law who reside in Detroit, Michigan; (4) the church was a dues-paying member

of the First Eastern Shore Missionary Baptist Church Association, an intrastate

church association, which, in turn, chose delegates to attend the Alabama State

Baptist Convention, which, in turn, chose delegates to attend the National Baptist

Convention. There was no evidence that any member of St. Joseph’s congregation

had ever been elected to attend the state or national conventions. There was no

evidence that any interstate traveler had ever visited St. Joseph’s Church.

      After the government produced all of its evidence supporting the interstate

commerce nexus, defense counsel moved for judgment of acquittal on the § 844(i)

count contending that the government had failed to present sufficient evidence of

the requisite nexus to interstate commerce. The trial court held that the principles

of United States v. Lopez, 

(1995) did not apply and that the


                                          4
government had met its jurisdictional burden.

      The jury returned a verdict convicting Odom of conspiracy to violate 18

U.S.C. § 844(i) and 844(h)(1) and, in two separate counts, of violating and

attempting to violate both of those statutes. The jury found Boone guilty of

conspiring to violate 18 U.S.C. § 844(i) and conspiring to willfully use fire to

commit a felony prosecutable in a United States court under 18 U.S.C. § 844(h)(1),

in violation of 18 U.S.C. § 371. After the jury verdict, defense counsel moved to

set aside the jury’s verdict with respect to the § 844(h)(1) conspiracy conviction on

the ground that the verdict was inconsistent. The district court denied that motion.

      Pursuant to U.S.S.G. § 2K1.4, which has a guideline range of 33-41 months

(offense level 20, criminal history category I), the district court sentenced Boone to

41 months imprisonment, followed by a three-year supervised release term with the

special condition of 300 hours of community service. The court also ordered

Boone to pay $96,836 restitution to St. Joseph’s Baptist Church jointly and

severally with three co-defendants.

                                 II. DISCUSSION

A. Section 844(i) & Interstate Commerce Requirement

      Defendants Odom and Boone challenge the application of 18 U.S.C. § 844(i)

to the arson of St. Joseph’s Baptist Church contending that an insufficient


                                          5
connection exists between the arson of St. Joseph’s Church and interstate

commerce for the statute to be constitutionally applied. “A fundamental and

longstanding principle of judicial restraint requires that courts avoid reaching

constitutional questions in advance of the necessity of deciding them.” Lyng v.

Northwest Indian Cemetery Protective Ass’n, 

, 445 (1988). This

principle requires that a decision on a constitutional question is appropriate only

after addressing the statutory questions. 

Thus, here, we must determine

whether the government met its burden under § 844(i) before addressing whether

the statutory requirements satisfy the interstate commerce clause of the

Constitution.

      Section 844 prohibits the malicious damaging or destroying or attempting to

damage or destroy, by means of fire or explosive, any building used in interstate

commerce or in any activity affecting interstate commerce. 18 U.S.C. § 844(i).

The Supreme Court recently clarified in Jones v. United States, 

(2000), that the qualifying words “used in” signaled that Congress did not invoke

its full authority under the Commerce Clause. 

Section 844(i) does

not cover the destruction of buildings whose damage might affect interstate

commerce. 

Rather § 844(i) is limited to buildings used in interstate

commerce. 

844(i) requires the government to prove that St.


                                          6
Joseph’s Church was used in interstate commerce or an activity affecting interstate

commerce.

       The Jones court set forth the method to determine whether damage or

destruction of a building is properly prosecutable under § 844(i). 

inquiry “is into the function of the building itself, and then a determination of

whether that function affects interstate commerce.” 

States v.

Ryan, 

, 675 (8th Cir. 1993) (Arnold, C.J., concurring in part and

dissenting in part)). This determination involves a three-part inquiry: (1) What is

the function of the building? (2) Is the function of the building involved in

commerce? (3) Does the commerce in which the building is involved sufficiently

affect interstate commerce?

      1. Function of the Building

      There is no dispute that building owned by St. Joseph’s Church functioned

as a church. The congregation used this building for regular worship services one

Sunday a month, Sunday school classes on a weekly basis and Bible studies and

prayer meetings one night each week. Additionally, regular choir practices and

occasional funerals were held in the church. To enable the church to perform these

functions, St. Joseph’s Church (1) purchased one Bible, three hymnals and an

unspecified number of Sunday School materials from the National Baptist


                                           7
Publishing Board in Tennessee; (2) used natural gas that originated in Mississippi;

(3) received donations from out-of-state; and (4) paid dues to an intrastate

organization which in turn was part of an interstate organization.

      2. Involvement in Commerce

      The legislative history of § 844(i) reveals that the statute was crafted

specifically to include some non-business property such as police stations and

churches. Russell v. United States, 

, 860 (1985). While § 844(i)

excludes no particular type of building, the property must be “actively employ[ed]

for commercial purposes.” 

. The question here is whether

St. Joseph’s Church was sufficiently involved in interstate commerce so that the

destruction of this church is covered by § 844(i).

      Churches are not commonly considered a business enterprise; nonetheless,

churches can and do engage in commerce. The “business” or “commerce” of a

church involves the solicitation and receipt of donations, and the provision of

spiritual, social, community, educational (religious or non-religious) and other

charitable services. See, e.g., United States v. Grassie, 

, 1204 (10th

Cir. 2001) (explaining how the church buildings were used for a broad range of

religious, cultural, social, recreational, educational and financial activities). The

question of whether a building is used in commerce or affects commerce does not


                                           8
turn merely on whether the activity is engaged in for a profit. Cf. Camps

Newfound/Owatonna v. Town of Harrison, 

, 584-85 (1997)

(concluding that the commerce clause applies to charitable and non-profit entities).

To require a profit motive would exclude not only universities, museums, schools,

think tanks, police and fire stations, but also many hospitals, trade and professional

organizations, lobbying organizations, and the non-profit, non-governmental

organizations that epitomize commerce and capitalism: stock1 and commodity2

exchanges and the World Trade Organization.3 Cf. 

Grassie, 

, 1210 n.7. In general, churches engage in activities and provide services to

their members, to their community and to the public at large; churches solicit

contributions to provide these services; and they purchase goods necessary to

provide these services. Accordingly, the evidence proving that a church building is

used in or affects interstate commerce must relate to these activities -- i.e. whereby

it engages in activities relating to its “business” as a church.

       1
         See, e.g., NYSE, About the NYSE, at http://www.nyse.com/ about/about.html (last
visited Feb. 7, 2001). The New York Stock Exchange has been an incorporated non-profit
corporation since 1971. 

e.g., Chicago Board of Trade, About CBOT, at http://
www.cbot.com/cbot/www/page/0,1398,10+10+83,00.html (last visited May 14, 2001). The
Chicago Board of Trade, the world’s oldest commodity futures exchange, presently operates as
self-governing, self-regulated, not-for-profit, non-stock corporation. 

World Trade Organization, What is the World Trade Organization, at
http://www.wto.org/english/thewto_e/whatis_e/ tif_e/fact1_e.htm (last visited Feb. 7, 2001).

                                               9
      The purchase and receipt of goods or services necessary for or common to

the maintenance of any building, such as gas, electricity, insurance, or mortgage

loans, do not prove that the function of the building is to engage in commerce. See

-11. Just as the Jones Court determined that the purchase

of natural gas could not rise to level of a private home being “used in or affecting

commerce,” 

here, the mere receipt of natural gas, whether intrastate or

interstate, is insufficient to show that St. Joseph’s Church was used in an activity

affecting commerce. On the other hand, the receipt of donations, the purchase of

hymnals and payment of dues are the type of commercial activities by which a

church would conduct its business as a church, and therefore, engage in commerce.

      3. Involvement in Interstate Commerce

      The mere engagement in commercial activities may not necessarily provide

the requisite nexus between the function of the building and interstate commerce.

See United States v. Ryan, 

, 1061 (8th Cir. 2000) (explaining that a

commercial building must still have an active connection to interstate commerce to

be covered by § 844(i); see, e.g., 

(concluding a vacant former

commercial establishment failed to create a sufficient interstate commerce nexus

under § 844(i)); United States v. Rea, 

, 743 (8th Cir. 2000) (finding

that merely because the building is church property does not mean that it meets the


                                          10
interstate commerce requirement for § 844(i)).

      “[I]t is appropriate to avoid the constitutional question that would arise” if §

844(i) were construed to extend to local criminal conduct. 

.

To avoid a constitutional problem requires interpretation of § 844(i) in accord with the

requirements of the Commerce Clause. Cf. 

Court specifically instructed

that § 844(i) should be construed, in accordance with United States v. Lopez, 

, 567 (1995), to require a distinction between what is truly national and what is

truly local. 

.

      The presence of a jurisdictional element in § 844(i) enabled the Court in Jones

to avoid a constitutional commerce clause analysis mandated by Lopez. 

see also 

(explaining that a statute’s jurisdictional element

might establish that the legislation was limited to “specific” incidents with explicit

connections to interstate commerce). In construing a statute such as § 844(i), courts

should presume, absent clear evidence to the contrary, that Congress did not intend

to obliterate the distinction between national and local authority. 

statute must be interpreted in such a way so it does not encompass “paradigmatic

common-law state crime.” 

government to meet the interstate commerce requirement through

only a nominal showing of a connection to interstate commerce would do as much to


                                          11
“completely obliterate” the distinction between national and local authority as if no

jurisdictional requirement existed at all. See Andrew St. Laurent, Reconstituting

United States v. Lopez: Another Look at Federal Criminal Law, 31 Colum. J.L. &

Soc. Probs. 61, 112 (1998) (“A purely nominal jurisdictional requirement ... does

nothing to prevent the shifting of the [federal-state] balance ... [a]s virtually all

criminal actions ... involve the use of some object that has passed through interstate

commerce.”); see also 

(warning that if minimal connections

to interstate commerce sufficed to trigger § 844(i), the language “used in” would have

no office); 

(advising of the importance of maintaining

a distinction between national and local interests). The presence of a jurisdictional

element may preserve the constitutionality of the statute so long as a case-by-case

analysis requires sufficient proof of a connection to interstate commerce. Otherwise,

Congress could circumvent the requirement of the Constitution’s interstate commerce

clause by inserting a jurisdictional element into every statute and allowing the

government to rely on the most minimal proof of that element.

      Rather, § 844(i) requires that covered property is employed actively, not merely

in commerce, but in interstate commerce. 

(explaining that the

building must be actively employed in interstate commerce at the time of the fire). A

federal statute may regulate purely intrastate activity without demonstrating its


                                         12
specific impact on interstate commerce, only if it regulates economic activity.

; United States v. Lopez, 

, 559-61 (1995).

Section 844(i) regulates non-economic activity, arson. The government, therefore,

must show that this arson affects interstate commerce by showing how the function

of this particular building was used in or affected interstate commerce.

      To be considered actively employed in interstate commerce, the function of a

building must have more than a passive, past, or passing connection to interstate

commerce. 

. The Jones court observed every building is

constructed with supplies that have moved in interstate commerce. 

building, every business, and every person in the nation, has received money or

goods that traveled in interstate commerce or is a member of some organization that

directly or indirectly is involved in interstate commerce.         Thus, to meet the

jurisdictional requirement, the government must show that the function of the property

involves the active engagement in commerce and the property either has a direct and

regular connection to interstate commerce, see, e.g., 

(finding “a settled, regular pattern” of use of truck in interstate commerce sufficed

although not actively employed in interstate commerce at the “precise time of the

arson”), or a substantial connection to interstate commerce, see, e.g., United States v.

Gaydos, 

, 510 (3d Cir. 1995) (explaining that significant connections to


                                          13
out-of-state factors could satisfy the interstate commerce nexus under § 844(i)).

      Here, the government offered evidence that the church engaged in interstate

commerce by (1) receiving donations from two out-of-state donors, (2) utilizing a

handful of Bibles and prayer books that had been purchased from an out-of-state

source, and (3) indirectly contributing to an out-of-state church organization through

its membership in the in-state church organization. These “connections” to interstate

commerce are too passive, too minimal and too indirect to substantially affect

interstate commerce.

      Alternatively, the government contends that even if the link between the arson

of St. Joseph’s Church in particular and interstate commerce is insufficient, the

aggregate effect of arson of church property suffices if it substantially impacts

interstate commerce. Indeed, in United States v. Dascenzo, 

(11th Cir.

1998), this Court suggested that only a “minimal effect on interstate commerce” was

required under § 844(i) so long as the effect of arson on the particular type of property

had an aggregate effect on interstate commerce. 

Because arson of

church property substantially affects interstate commerce in the aggregate, the

government contends that this statute is properly applied to the arson of St. Joseph’s

Church.

      Yet, in United States v. Morrison, 

(2000), the Supreme Court


                                           14
expressed great doubt as to whether aggregation should apply to any non-economic

activity. See 

While the Court declined to adopt a per se rule against

aggregating the effects of any non-economic activity, the Court observed that thus far,

aggregation had only been upheld in cases where the regulated activity was economic

in nature. Id.; e.g., Katenbach v. McClung, 

(1964) (upholding

regulation of restaurant’s discriminatory commercial practice because of aggregate

affect created a highly restrictive effect on interstate travel); Heart of Atlanta, Inc. v.

United States, 

(1964) (same regarding hotel’s discriminatory practice);

Wickard v. Filburn, 

(1942) (sustaining regulation of manufacture of

wheat because of aggregate effect on wheat production). The purpose of aggregation

is to allow regulation of purely intrastate activity where the absence of such regulation

would undercut a larger economic regulatory scheme affecting interstate commerce.

. No regulatory scheme regulating an economic activity is

present here.

      Regarding non-economic criminal activity, the Morrison court clearly rejected

Congress’ ability to “regulate [such] conduct based solely on that conduct’s aggregate

effect on interstate commerce.” 

the government cannot meet the

jurisdictional requirement in a criminal statute regulating non-economic activity, it

may not rely on the aggregate effect of that conduct.            Accordingly, here the


                                            15
government may not rely on the aggregate effect of arson on churches to establish the

requisite nexus with St. Joseph’s Baptist Church.

      The Government has failed to set forth sufficient evidence establishing that St.

Joseph’s Baptist Church, the building destroyed by Defendants’ act of arson, was used

in or affected interstate commerce according to the requirements of § 844(i).

Accordingly, Defendants’ convictions under § 844(i) are reversed.

B. Vagueness of the Indictment

      Defendant Boone challenges Count I of the indictment, which charges her with

conspiracy to use fire to commit a felony prosecutable in a federal court violating §

844(h)(1). Defendant Boone contends that because Count I does not specify in which

predicate felony, § 247(a)(1), § 247(c) or § 844(i), the government alleged Boone used

fire to violate § 844(h)(1), Count I was unconstitutionally vague.

      Due process requires an indictment to provide notice sufficient to allow the

defendant to prepare an adequate defense. United States v. Lehder-Rivas, 

, 1519 (11th Cir. 1992). Predicate felonies do not need to be listed in the

indictment so long as the defendant has actual notice of the charge. Id.; see also

United States v. Johnson, 

, 1197 (8th Cir. 1992); United States v.

Zavala, 

, 527 (9th Cir. 1988). Even an inadequate indictment satisfies

due process if the defendant has actual notice, so that she suffers no prejudice. United


                                          16
States v. Becton, 

, 257 (7th Cir. 1984).

      In this case, Count I sets forth all of the underlying facts concerning the three

felonies which the government charged the defendants with conspiring to commit by

use of fire in violation of 18 U.S.C. § 844(h)(1): (1) intentional damage to religious

real property in and affecting interstate commerce based on its religious character, 18

U.S.C. § 247(a)(1); (2) intentional damage to religious real property because of the

race and color of individuals associated with the property, 18 U.S.C. § 247(c); and (3)

malicious damage by fire of a building used in interstate commerce, 18 U.S.C. §

844(i). Defendant Boone knew that she was charged with conspiring to set fire to St.

Joseph’s Baptist Church. Counts IV charged one predicate felony as a separate

substantive count and Count V specified two of the predicate felonies. Therefore,

Boone does not and cannot claim that she did not have notice of these felonies or that

she was unable to mount a defense to these felonies. Accordingly, the indictment was

not unconstitutionally vague.

C. Inconsistent Verdicts

      Defendants Boone and Odom challenge the jury’s verdict convicting them of

conspiracy to violate 18 U.S.C. § 844(h)(1), but acquitting them of violating the

underlying predicate felonies as inconsistent verdicts. Nearly seventy years ago,

Justice Holmes, writing for the Supreme Court, explained: “Consistency in the verdict


                                          17
is not necessary.” Dunn v. United States, 

, 393 (1932). As each count

in an indictment is regarded as a separate indictment, merely the jury’s choice to

acquit on one charge does not have a res judicata effect on any other separate count.

further explained that “[t]he most that can be said [of an

inconsistent verdict] is that the verdict shows that either in the acquittal or the

convictions the jury did not speak their real conclusions, but that does not show that

they were not convinced of the defendant’s guilt.” 

words, the jury

compromised.

      This principle was more recently affirmed by United States v. Powell, 

(1984). In Powell, the defendant was charged with possession with the intent to

distribute cocaine and using the telephone in committing and facilitating certain

felonies – i.e. conspiracy to possess cocaine with intent to distribute. 

The

jury acquitted the defendant of the former, but convicted her of the latter. 

Court held the rule set forth in Dunn even applies to verdicts, such as the one

here, that acquit on a predicate offense while convicting on the compound offense.

Defendants’ convictions for conspiring to violate 18 U.S.C. § 844(h)(1) in

violation of 18 U.S.C. § 371 will stand regardless of their acquittal on any or all of the

other counts. Accordingly, Defendants Boone’s and Odom’s convictions under this

count are affirmed.


                                           18
D. Restitution

      Defendant Boone challenges the district court’s ordering her to pay, jointly and

severally with Odom and others, over $96,000 in restitution to St. Joseph’s Baptist

Church. Defendant Boone claims that the facts establish that she withdrew from the

conspiracy and therefore, do not support the district court’s restitution order.

      Ordinarily, this Court reviews a district court’s restitution order for abuse of

discretion. United States v. Davis, 

, 462 (11th Cir. 1997). If a defendant

fails to challenge a restitution order at sentencing, she waives that objection. 

a case, this Court reviews for plain error. 

admits that she

did not raise the issue below and we accordingly review for plain error.

      A restitution order may order payment of losses consistent with the common

law of conspiracy. Namely, a defendant convicted of participation in a conspiracy

is liable not only for her own acts, but also those reasonably foreseeable acts of others

committed in furtherance of the conspiracy. 

A participant remains

liable until the conspiracy ends or the participant withdraws. 

contends that she withdrew from the conspiracy once she left the church and that it

was unforeseeable that Odom and others would return to the church to continue the

arson of the church.

      A conspirator’s participation in a conspiracy is presumed to continue until all


                                           19
activity related to the conspiracy ceases. United States v. Starrett, 

, 1550

(11th Cir. 1995). Consequently, a defendant has the burden of proving (1) that she

took affirmative acts inconsistent with the object of the conspiracy and (2)

communicated those acts or her desire to withdraw to her co-conspirators (or disclosed

the scheme to law enforcement). United States v. United States Gypsum, 

, 464-466 (1978)(emphasis added); 

. The presumption

here is that the conspiracy to burn the church continued. Merely leaving the church

grounds did not necessarily end the conspiracy, nor her participation in the conspiracy.

Boone took no affirmative acts inconsistent with the conspiracy: she did not put the

original fire out; she did not convince the others to leave; and she did not announce

to the others that she had changed her mind about the original plan to “burn the nigger

church.” She is, therefore, appropriately liable for the acts of the other members of

the conspiracy. Accordingly, the district court’s restitution order holding Boone

jointly and severally liable with the other conspirators is appropriate and affirmed.

                                III. CONCLUSION

      For the foregoing reasons, we reverse Appellants’ convictions under § 844(i)

because the government failed to present sufficient proof that St. Joseph’s Church was

used in or affected interstate commerce. We affirm the Appellants’ convictions under

844(h)(1) because the indictment was not unconstitutionally vague nor the verdict


                                          20
inconsistent. Finally, we affirm the district court’s restitution order because Appellant

Boone failed to establish that she withdrew from the conspiracy; therefore, Boone is

jointly and severally liable for the acts of her co-conspirators.

      AFFIRMED in PART, REVERSED in PART.




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