http://supct.law.cornell.edu/supct/html/99-5739.ZS.html

          SUPREME COURT OF THE UNITED STATES

                JONES v. UNITED STATES

 CERTIORARI TO THE UNITED STATES COURT OF APPEALS
                FOR THE SEVENTH CIRCUIT


No. 99-5739. Argued March 21, 2000 -- Decided May 22, 2000


Petitioner Jones tossed a Molotov cocktail into a home owned and 
occupied by his cousin as a dwelling place for everyday family living. 
The ensuing fire severely damaged the home. Jones was convicted in the 
District Court of violating, inter alia, 18 U.S.C.  844(i), which makes 
it a federal crime to "maliciously damag[e] or destro[y], ... by means 
of fire or an explosive, any building ... used in interstate or foreign 
commerce or in any activity affecting interstate or foreign commerce." 
The Seventh Circuit affirmed, rejecting Joness contention that 844(i), 
when applied to the arson of a private residence, exceeds the authority 
vested in Congress under the Commerce Clause.

Held:  Because an owner-occupied residence not used for any commercial 
purpose does not qualify as property "used in" commerce or 
commerce-affecting activity, arson of such a dwelling is not subject to 
federal prosecution under 844(i). Pp. 3-10.

    (a)  In support of its argument that 844(i) reaches the arson of an 
owner-occupied private residence, the Government relies principally on 
the breadth of the statutory term "affecting ... commerce," words that, 
when unqualified, signal Congress intent to invoke its full Commerce 
Clause authority. But 844(i) contains the qualifying words "used in" a 
commerce-affecting activity. The key word is "used." Congress did not 
define the crime as the explosion of a building whose damage or 
destruction might affect interstate commerce, but required that the 
damaged or destroyed property itself have been used in commerce or in an 
activity affecting commerce. The proper inquiry, therefore, is into the 
function of the building itself, and then into whether that function 
affects interstate commerce. The Court rejects the Governments argument 
that the Indiana residence involved in this case was constantly "used" 
in at least three "activit[ies] affecting commerce": (1) it was "used" 
as collateral to obtain and secure a mortgage from an Oklahoma lender, 
who, in turn, "used" it as security for the loan; (2) it was "used" to 
obtain from a Wisconsin insurer a casualty insurance policy, which 
safeguarded the interests of the homeowner and the mortgagee; and (3) it 
was "used" to receive natural gas from sources outside Indiana. Section 
844(i)s use-in-commerce requirement is most sensibly read to mean 
active employment for commercial purposes, and not merely a passive, 
passing, or past connection to commerce. See, e.g., Bailey v. United 
States, 516 U.S. 137, 143, 145. It surely is not the common perception 
that a private, owner-occupied residence is "used" in the "activity" of 
receiving natural gas, a mortgage, or an insurance policy. Cf. id., at 
145. The Government does not allege that the residence here served as a 
home office or the locus of any commercial undertaking. The homes only 
"active employment," so far as the record reveals, was for the everyday 
living of Joness cousin and his family. Russell v. United States, 471 
U.S. 858, 862 -- in which the Court held that particular property was 
being used in an "activity affecting commerce" under 844(i) because its 
owner was renting it to tenants at the time he attempted to destroy it 
by fire -- does not warrant a less "use"-centered reading of 844(i) in 
this case. The Court there observed that "[b]y its terms," 844(i) 
applies only to "property that is used in an activity that affects 
commerce," and ruled that "the rental of real estate" fits that 
description, ibid. Here, the homeowner did not use his residence in any 
trade or business. Were the Court to adopt the Governments expansive 
interpretation, hardly a building in the land would fall outside 
844(i)s domain, and the statutes limiting language, "used in," would 
have no office. Judges should hesitate to treat statutory terms in any 
setting as surplusage, particularly when the words describe an element 
of a crime. E.g., Ratzlaf v. United States, 510 U.S. 135, 140-141. Pp. 
3-8.

    (b)  The foregoing reading is in harmony with the guiding principle 
that where a statute is susceptible of two constructions, by one of 
which grave and doubtful constitutional questions arise and by the other 
of which such questions are avoided, the Courts duty is to adopt the 
latter. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast 
Building & Constr. Trades Council, 485 U.S. 568, 575. In holding that a 
statute making it a federal crime to possess a firearm within 1,000 feet 
of a school exceeded Congress power to regulate commerce, this Court, 
in United States v. Lopez, 514 U.S. 549, stressed that the area was one 
of traditional state concern, see, e.g., id., at 561, n. 3, and that the 
legislation aimed at activity in which neither the actors nor their 
conduct had a commercial character, e.g., id., at 560-562. Given the 
concerns brought to the fore in Lopez, it is appropriate to avoid the 
constitutional question that would arise were the Court to read 844(i) 
to render the traditionally local criminal conduct in which Jones 
engaged a matter for federal enforcement. United States v. Bass, 404 
U.S. 336, 350. The Courts comprehension of 844(i) is additionally 
reinforced by other interpretive guides. Ambiguity concerning the ambit 
of criminal statutes should be resolved in favor of lenity, Rewis v. 
United States, 401 U.S. 808, 812, and when choice must be made between 
two readings of what conduct Congress has made a crime, it is 
appropriate, before choosing the harsher alternative, to require that 
Congress should have spoken in language that is clear and definite, 
United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222. 
Moreover, unless Congress conveys its purpose clearly, it will not be 
deemed to have significantly changed the federal-state balance in the 
prosecution of crimes. Bass, 404 U.S., at 349. To read 844(i) as 
encompassing the arson of an owner-occupied private home would effect 
such a change, for arson is a paradigmatic common-law state crime. Pp. 
8-9.

178 F.3d 479, reversed and remanded. 

    Ginsburg, J., delivered the opinion for a unanimous Court. Stevens, 
J., filed a concurring opinion, in which Thomas, J., joined. Thomas, J., 
filed a concurring opinion, in which Scalia, J., joined.

