Jones v. United States (99-5739) 
178 F.3d 479, reversed and remanded.


                    Opinion of the Court

            Supreme Court of the United States 

                  Jones v. United States


                       No. 99-5739 


       DEWEY J. JONES, PETITIONER v. UNITED STATES

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

                      [May 22, 2000]

Justice Ginsburg delivered the opinion of the Court.

    It is a federal crime under 18 U.S.C.  844(i) (1994 ed., Supp. IV) 
to damage or destroy, "by means of fire or an explosive, any ... 
property used in interstate or foreign commerce or in any activity 
affecting interstate or foreign commerce." This case presents the 
question whether arson of an owner-occupied private residence falls 
within 844(i)s compass. Construing the statutes text, we hold that 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, therefore, is not subject to federal 
prosecution under 844(i). Our construction of 844(i) is reinforced by 
the Courts opinion in United States v. Lopez, 514 U.S. 549 (1995), and 
the interpretive rule that constitutionally doubtful constructions 
should be avoided where possible, see Edward J. DeBartolo Corp. v. 
Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 
(1988).

                            I

    On February 23, 1998, petitioner Dewey Jones tossed a Molotov 
cocktail through a window into a home in Fort Wayne, Indiana, owned and 
occupied by his cousin. No one was injured in the ensuing fire, but the 
blaze severely damaged the home. A federal grand jury returned a 
three-count indictment charging Jones with arson, 18 U.S.C.  844(i) 
(1994 ed., Supp. IV); using a destructive device during and in relation 
to a crime of violence (the arson), 18 U.S.C.  924(c); and making an 
illegal destructive device, 26 U.S.C.  5861(f). Jones was tried under 
that indictment in the Northern District of Indiana and convicted by a 
jury on all three counts.1 The District Court sentenced him, pursuant to 
the Sentencing Reform Act of 1984, to a total prison term of 35 years, 
to be followed by five years of supervised release. The court also 
ordered Jones to pay $77,396.87 to the insurer of the damaged home as 
restitution for its loss. Jones appealed, and the Court of Appeals for 
the Seventh Circuit affirmed the judgment of the District Court. 178 
F.3d 479 (1999). 

    Jones unsuccessfully urged, both before the District Court and on 
appeal to the Seventh Circuit, that 844(i), when applied to the arson 
of a private residence, exceeds the authority vested in Congress under 
the Commerce Clause of the Constitution, Art. I, 8, cl. 3. Courts of 
Appeals have divided both on the question whether 844(i) applies to 
buildings not used for commercial purposes,2 and on the 
constitutionality of such an application.3 We granted certiorari, 528 
U.S. 1002 (1999), and framed as the question presented:

"Whether, in light of United States v. Lopez, 514 U.S. 549 (1995), and 
the interpretive rule that constitutionally doubtful constructions 
should be avoided, see Edward J. DeBartolo Corp. v. Florida Gulf Coast 
Building & Constr. Trades Council, 485 U.S. 568,575 (1988), 18 U.S.C.  
844(i) applies to the arsonof a private residence; and if so, whether 
its application to the private residence in the present case is 
constitutional."

Satisfied that 844(i) does not reach an owner-occupied residence that 
is not used for any commercial purpose, we reverse the Court of Appeals 
judgment.

                            II

    Congress enacted 18 U.S.C.  844(i) as part of Title XI of the 
Organized Crime Control Act of 1970, Pub. L. 91-452, 1102, 84 Stat. 
952, "because of the need to curb the use, transportation, and 
possession of explosives. " Russell v. United States, 471 U.S. 858, 
860, n. 5 (1985) (citation omitted). The word "fire," which did not 
appear in 844(i) as originally composed, was introduced by statutory 
amendment in 1982.4 As now worded, 844(i) (1994 ed., Supp. IV) reads in 
relevant part:

"Whoever maliciously damages or destroys, or attempts to damage or 
destroy, by means of fire or 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 shall be 
imprisoned for not less than 5 years and not more than 20 years, fined 
under this title, or both ... ."

    We previously construed 844(i) in Russell v. United States, 471 
U.S. 858 (1985), and there held that 844(i) applies to a building "used 
as rental property," ibid. The petitioner-defendant in Russell had 
unsuccessfully attempted to set fire to a two-unit apartment building he 
owned. He earned rental income from the property and "treated it as 
business property for tax purposes." Id., at 859. Our decision stated as 
the dispositive fact: "Petitioner was renting his apartment building to 
tenants at the time he attempted to destroy it by fire." Id., at 862. It 
followed from that fact, the Russell opinion concluded, that "[t]he 
property was ... being used in an activity affecting commerce within the 
meaning of 844(i)." Ibid.5 

    We now confront a question that was not before the Court in Russell: 
Does 844(i) cover property occupied and used by its owner not for any 
commercial venture, but as a private residence. Is such a dwelling 
place, in the words of 844(i), "used in ... any activity affecting ... 
commerce"?

    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," see Brief 
for United States 10, 16-17, words that, when unqualified, signal 
Congress intent to invoke its full authority under the Commerce Clause. 
But 844(i) contains the qualifying words "used in" a commerce-affecting 
activity. The key word 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 ... ." United States v. 
Mennuti, 639 F.2d 107, 110 (CA2 1981) (Friendly, J.).6 Congress 
"require[d] that the damaged or destroyed property must itself have been 
used in commerce or in an activity affecting commerce." Ibid. The proper 
inquiry, we agree, "is into the function of the building itself, and 
then a determination of whether that function affects interstate 
commerce." United States v. Ryan, 9 F.3d 660, 675 (CA8 1993) (Arnold, C. 
J., concurring in part and dissenting in part).7

    The Government urges that the Fort Wayne, Indiana residence into 
which Jones tossed a Molotov cocktail was constantly "used" in at least 
three "activit[ies] affecting commerce." First, the homeowner "used" the 
dwelling as collateral to obtain and secure a mortgage from an Oklahoma 
lender; the lender, in turn, "used" the property as security for the 
home loan. Second, the homeowner "used" the residence to obtain a 
casualty insurance policy from a Wisconsin insurer. That policy, the 
Government points out, safeguarded the interests of the homeowner and 
the mortgagee. Third, the homeowner "used" the dwelling to receive 
natural gas from sources outside Indiana. See Brief for United States 
19-23.

    The Government correctly observes that 844(i) excludes no 
particular type of building (it covers "any building"); the provision 
does, however, require that the building be "used" in an activity 
affecting commerce. That qualification is most sensibly read to mean 
active employment for commercial purposes, and not merely a passive, 
passing, or past connection to commerce. Although "variously defined," 
the word "use," in legislation as in conversation, ordinarily signifies 
"active employment." Bailey v. United States, 516 U.S. 137, 143, 145 
(1995); see also Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) 
("When terms used in a statute are undefined, we give them their 
ordinary meaning."). 

    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. Bailey, 516 U.S., 
at 145 (interpreting the word "use," as it appears in 18 U.S.C.  
924(c)(1), to mean active employment of a firearm and rejecting the 
Governments argument that a gun is "used" whenever its presence 
"protect[s] drugs" or "embolden[s]" a drug dealer). The Government does 
not allege that the Indiana residence involved in this case 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. 

    Our decision in Russell does not warrant a less "use"-centered 
reading of 844(i). In that case, which involved the arson of property 
rented out by its owner, see supra, at 4, the Court referred to the 
recognized distinction between legislation limited to activities "in 
commerce" and legislation invoking Congress full power over activity 
substantially "affecting ... commerce." 471 U.S., at 859-860 and n. 4. 
The Russell opinion went on to observe, however, that "[b]y its terms," 
844(i) applies only to "property that is used in an activity that 
affects commerce." Id., at 862. "The rental of real estate," the Court 
then stated, "is unquestionably such an activity." Ibid.8 Here, as 
earlier emphasized, the owner used the property as his home, the center 
of his family life. He did not use the residence in any trade or 
business. 

    Were we to adopt the Governments expansive interpretation of 
844(i), hardly a building in the land would fall outside the federal 
statutes domain. Practically every building in our cities, towns, and 
rural areas is constructed with supplies that have moved in interstate 
commerce, served by utilities that have an interstate connection, 
financed or insured by enterprises that do business across state lines, 
or bears some other trace of interstate commerce. See, e.g., FERC v. 
Mississippi, 456 U.S. 742, 757 (1982) (observing that electric energy is 
consumed "in virtually every home" and that "[n]o State relies solely on 
its own resources" to meet its inhabitants demand for the product). If 
such connections sufficed to trigger 844(i), the statutes limiting 
language, "used in" any commerce-affecting activity, would have no 
office. See United States v. Monholland, 607 F.2d 1311, 1316 (CA10 1979) 
(finding in 844(i) no indication that Congress intended to include 
"everybody and everything"). "Judges should hesitate ... to treat 
statutory terms in any setting [as surplusage], and resistance should be 
heightened when the words describe an element of a criminal offense." 
Ratzlaf v. United States, 510 U.S. 135, 140-141 (1994); accord, Bailey, 
516 U.S., at 145. 

                           III

    Our reading of 844(i) 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, our duty is to adopt the latter." 
United States ex rel. Attorney General v. Delaware & Hudson Co., 213 
U.S. 366, 408 (1909), quoted in Jones v. United States, 526 U.S. 227, 
239 (1999); see also DeBartolo, 485 U.S., at 575; Ashwander v. TVA, 297 
U.S. 288, 348 (1936) (Brandeis, J., concurring).     In Lopez, this 
Court invalidated the Gun-Free School Zones Act, former 18 U.S.C.  
922(q) (1988 ed., Supp. V), which made it a federal crime to possess a 
firearm within 1,000 feet of a school. The defendant in that case, a 
12th-grade student, had been convicted for knowingly possessing a 
concealed handgun and bullets at his San Antonio, Texas, high school, in 
violation of the federal Act. Holding that the Act exceeded Congress 
power to regulate commerce, the Court stressed that the area was one of 
traditional state concern, see 514 U.S., at 561, n. 3, 567; id., at 577 
(Kennedy, J., concurring), and that the legislation aimed at activity in 
which "neither the actors nor their conduct has a commercial character," 
id., at 580 (Kennedy, J., concurring); id., at 560-562 (opinion of the 
Court).

    Given the concerns brought to the fore in Lopez, it is appropriate 
to avoid the constitutional question that would arise were we to read 
844(i) to render the "traditionally local criminal conduct" in which 
petitioner Jones engaged "a matter for federal enforcement." United 
States v. Bass, 404 U.S. 336, 350 (1971). Our comprehension of 844(i) 
is additionally reinforced by other interpretive guides. We have 
instructed that "ambiguity concerning the ambit of criminal statutes 
should be resolved in favor of lenity," Rewis 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 definite," United 
States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222 (1952). 
We have cautioned, as well, that "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. See generally Poulos, The Metamorphosis of the 
Law of Arson, 51 Mo. L. Rev. 295 (1986).

                           IV

    We conclude that 844(i) is not soundly read to make virtually every 
arson in the country a federal offense. We hold that the provision 
covers only property currently used in commerce or in an activity 
affecting commerce. The home owned and occupied by petitioner Joness 
cousin was not so used -- it was a dwelling place used for everyday 
family living. As we read 844(i), Congress left cases of this genre to 
the law enforcement authorities of the States.

    Our holding that 844(i) does not cover the arson of an 
owner-occupied dwelling means that Joness 844(i) conviction must be 
vacated. Accordingly, the judgment of the Court of Appeals is reversed, 
and the case is remanded for further proceedings consistent with this 
opinion.

It is so ordered.



Notes

1.  The question on which we granted review refers solely to Joness 
844(i) conviction. See infra, at 3. We therefore do not address his 
924(c) and 5861(f) convictions.

2.  Compare United States v. Gaydos, 108 F.3d 505 (CA3 1997) (vacant, 
uninhabitable house formerly rented not covered by statute), United 
States v. Denalli, 73 F.3d 328 (CA11) (owner-occupied residence not 
covered), modified on other grounds, 90 F.3d 444 (1996) (per curiam), 
United States v. Mennuti, 639 F.2d 107 (CA2 1981) (same), with United 
States v. Ryan, 41 F.3d 361 (CA8 1994) (en banc) (vacant former 
commercial property covered), cert. denied, 514 U.S. 1082 (1995), United 
States v. Ramey, 24 F.3d 602 (CA4 1994) (owner-occupied residence 
covered), cert. denied, 514 U.S. 1103 (1995), and United States v. 
Stillwell, 900 F.2d 1104 (CA7) (same), cert. denied, 498 U.S. 838 
(1990). 

3.  Compare United States v. Pappadopoulos, 64 F.3d 522 (CA9 1995) 
(application to owner-occupied residence unconstitutional), with 178 
F.3d 479 (CA7 1999) (decision below), and Ramey, 24 F.3d, at 602 
(application constitutional). 

4.  See Pub. L. 97-298, 2(c), 96 Stat. 1319 (amending 844(i) to insert 
the words "fire or" before the words "an explosive"). The House Report 
accompanying the 1982 legislation explained that the original measure, 
which was confined to damage caused by "an explosive," had resulted in 
problems of practical application. H. R. Rep. No. 678, 97th Cong., 2d 
Sess., 2 (1982). In particular, the Report noted a Circuit conflict on 
the question whether the measure covered use of gasoline or other 
flammable liquids to ignite a fire. Id., at 2, and nn. 5-6. 

5.  We noted in Russell that the original version of the bill that 
became 844(i) applied to destruction, by means of explosives, of 
property used "for business purposes." Russell, 471 U.S., at 860, n. 5. 
After some House members indicated that they thought the provision 
should apply to the bombings of schools, police stations, and places of 
worship, the words "for business purposes" were omitted. Id., at 
860-861. The House Report accompanying the final bill, we further noted 
in Russell, described 844(i) as "a very broad provision covering 
substantially all business property." Id., at 861, and n. 8 (citing H. 
R. Rep. No. 91-1549, pp. 69-70 (1970)). 

6.  The defendants in Mennuti destroyed two buildings. One was the 
residence of the owner and her family, the other was a rental property. 
See 639 F.2d, at 108-109, n. 1. The Second Circuit affirmed the District 
Courts dismissal of the entire indictment. Our decision in Russell v. 
United States, 471 U.S. 858 (1985), supersedes Mennuti with respect to 
the building held for rental. Regarding the family residence, we find 
Mennutis reasoning persuasive.

7.  In Ryan, Chief Judge Arnold dissented from a panel decision holding 
that the arson of a permanently closed fitness center fell within 
844(i)s prohibition. The panel majority considered adequate either of 
two interstate commerce connections: the building was owned and leased 
by out-of-state parties, and received natural gas from across state 
borders. The panel added, however, that it would not extend the decision 
"to property which is purely private in nature, such as a privately 
owned home, used solely for residential purposes." 9 F.3d, at 666-667. 
Sitting en banc, the Eighth Circuit affirmed the panels judgment. See 
United States v. Ryan, 41 F.3d 361 (1994), cert. denied, 514 U.S. 1082 
(1995).

8.  Notably, the Court in Russell did not rest its holding on the 
expansive interpretation advanced by the Government both in Russell and 
in this case. Compare Brief for United States in Russell v. United 
States, O.T. 1984, No. 435, p. 15 ("Petitioner used his building on 
South Union Street in an activity affecting interstate commerce by 
heating it with gas that moved interstate."), with Russell, 471 U.S., at 
862 (focusing instead on fact that "[t]he rental of real estate is 
unquestionably ... an activity" affecting commerce).




