Appeal by the United States from an order of the District Court for the Eastern District of New York, George C. Pratt, Judge, dismissing an indictment under 18 U.S.C. § 844(i) on the ground that the Government's proposed proof would not establish a case within the terms of the statute. Affirmed.
Before Feinberg, Chief Judge, and Friendly and Meskill, Circuit Judges.
The United States appeals from an order of the District Court for the Eastern District of New York dismissing an indictment under § 844(i) of Title XI of the Organized Crime Control Act of 1970 on the ground that the Government's proposed proof would not establish a crime within the terms of the statute.
A four count indictment charged appellees Mennuti and Natale and others who subsequently pleaded guilty with conspiracy to violate and substantively violating 18 U.S.C. § 844(i) by destroying two buildings located at 10 Yacht St., Brookhaven, N.Y., and 26 Sally Lane, Ridge, N.Y. by means of explosives. The pertinent statute, enacted in 1970, as a part of the Organized Crime Control Act, imposes heavy penalties on anyone who
maliciously damages or destroys, or attempts to destroy, by means of an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce ....
Mennuti and Natale having moved to dismiss the indictment for lack of jurisdiction, the Government submitted an affidavit of an Assistant United States Attorney, reproduced in the margin,*fn1 stating the facts on which it would rely as showing that defendants' alleged acts were within the statute. In a well-considered opinion Judge Pratt held that these facts did not suffice to show that destruction of two private residences by means of an explosive constituted the destruction of a building "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." Accordingly he dismissed the indictment. The Government has appealed pursuant to 18 U.S.C. § 3731.
To the ordinary mind, the destruction of two private dwellings would not constitute the destruction of buildings used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce. The pictures summoned up by these words include such things as railroad stations, bus depots, airport buildings, and factories using raw materials from out of state or shipping products out of the state, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 (1937). Crossing the area between use in commerce and use affecting commerce, we reach such buildings as the offices of an insurance company receiving premiums from outside the state and disbursing benefits and loans across state lines, Polish National Alliance v. NLRB, 322 U.S. 643, 647-48, 64 S. Ct. 1196, 1198, 88 L. Ed. 1509 (1944), or of a company delivering within the state oil purchased from another company that had brought it into the state, NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226-27, 83 S. Ct. 312, 313, 9 L. Ed. 2d 279 (1963), or hotels and restaurants serving imported food to persons traveling from one state to another. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 85 S. Ct. 377, 13 L. Ed. 2d 290 (1964).
It is abundantly clear, as the above cases illustrate, that only business-related activities constitute "commerce". Chief Justice Marshall instructed long ago that the essence of commerce is "commercial intercourse". Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), a definition consonant with the dictionary and with the derivation of the term. Consequently a residence is not used in interstate or foreign commerce simply because it was built in part with out-of-state materials, its purchase was financed by a bank which engages in or whose activities affect interstate commerce, it was insured by a company engaged in such commerce, it received electric power and telephone service from companies engaged in or affecting commerce, and its repair or reconstruction will require out-of-state materials. This would not be changed by the fact that a dwelling was advertised for rental, and that a lessee might come from without the state.
It would be altogether strained to say that such a dwelling, although not used in commerce, is "used" in an activity affecting commerce. It is not enough under the statute that the quantum of commerce might differ if the dwelling had never been built, were destroyed or were rebuilt. The critical word here is "used". Congress did not define the crime described in § 844(i) as the explosion of a building whose damage or destruction might affect interstate commerce as we assume it could constitutionally have done. See generally Stern, The Commerce Clause Revisited The Federalization of Intra-State Crime, 15 Ariz.L.Rev. 271 (1973). It chose to require that the damaged or destroyed property must itself have been used in commerce or in an activity affecting commerce.
Heart of Atlanta Motel, Inc. v. United States, supra, 379 U.S. 241, 85 S. Ct. 348, 13 L. Ed. 2d 258 and Katzenbach v. McClung, supra, 379 U.S. 294, 85 S. Ct. 377, 13 L. Ed. 2d 290, do not run counter to this analysis. Title II of the Civil Rights Act of 1964, which was at issue in those cases, dealt with a variety of business enterprises hotels, restaurants, motion picture houses and the like, see 42 U.S.C. § 2000a et seq. Congress declared that they were to be deemed to affect commerce if certain criteria with respect to interstate patronage or source of supply were met. Clearly the establishments were being used in the sale of goods and services, the very elements that are absent here.
The case before us likewise does not fall within the "third category" described in Perez v. United States, 402 U.S. 146, 150, 91 S. Ct. 1357, 1359, 28 L. Ed. 2d 686 (1971).*fn2 There Congress followed the pattern of first declaring that all extortionate credit transactions, "even when purely intrastate in character, nevertheless directly affect interstate and foreign commerce", see 402 U.S. at 147 n.1, 91 S. Ct. at 1358, n.1 and then making it a crime to engage in such a transaction without need of proof that the specific transaction had any particularized effect on commerce. The statute with which we are here concerned follows a different scheme. The general declaration of purpose, 84 Stat. 952, was merely, so far as here pertinent, that the statute was "to protect interstate and foreign commerce against interference and interruption by reducing the hazard to persons and property arising from misuse and unsafe or insecure storage of explosive materials." Each of the crimes listed in the many subsections to §§ 842 and 844 had to meet the specific tests specified in each.
Finally, Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942), is in no way inconsistent with this analysis. At issue in that case was the constitutionality, not the construction, of federal acreage limitations as they applied to wheat grown for home consumption. The plaintiff, Filburn, claimed that the regulation went beyond Congress' power to regulate commerce. While Filburn was not a wheat farmer, the Court made it clear that Congress' power to regulate his production of wheat was grounded, at least in part, on the fact that he was a potential entrant into that market. As the Court said:
One of the primary purposes of the Act was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs ...