United States v. Ajmal Aman, 4th Cir. (2012)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 11-4121
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
AJMAL A. AMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
T. S. Ellis, III, Senior
District Judge. (1:10-cr-00236-TSE-1)
Argued:
March 20, 2012
Before TRAXLER,
Judges.
Chief
Decided:
Judge,
and
DUNCAN
and
May 10, 2012
DAVIS,
Circuit
Affirmed by unpublished per curiam opinion.
ARGUED:
Matthew
Alan
Wartel,
Alexandria,
Virginia,
for
Appellant.
George Zachary Terwilliger, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF:
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ajmal Aman appeals from his conviction for arson, see 18
U.S.C. 844(i), arguing that the application of 844(i) to his
conduct
exceeds
the
Commerce Clause.
federal
governments
authority
under
the
We find Amans argument unpersuasive, and we
affirm his conviction and sentence.
I.
Aman was one of several owners of Bridges Billiards and
Grill,
bar
and
restaurant
located
in
Fairfax,
Virginia.
Bridges occupied almost 10,000 square feet of leased space on

the first floor of a seven-story commercial office building that
housed more than seventy other businesses.
On
through
November
1,
use
gasoline
of
2009,
an
and
intentionally-set
lighter
fluid
as
fire
(started
accelerants)
destroyed the restaurants office and damaged other parts of the

restaurant.
started.
Aman was alone in the restaurant when the fire

He fled the building and ran down the street to a
nearby fire station to report the fire.
The fire had already
been reported, and a unit was on its way to the restaurant even
as Aman was pounding on the fire station door.
Aman made his way back to the Bridges parking lot and spoke
to Captain Gregory Rausch, one of the firefighters on the scene.
Aman told Rausch that he had been closing up the restaurant when
2
the fire started and that, in his rush to leave the building, he
had left his keys inside the restaurant.
Rausch testified that
Aman strongly smelled of lighter fluid and that Amans clothes - an orange jumpsuit worn as a costume for the restaurants
Halloween party -- looked stiff and melted from the knees down.
While
evaluating
Aman
for
burns
and
other
injuries,
Rausch
noticed a large amount of cash stuffed into one of Amans boots.

A
box
containing
bottles
of
lighter
fluid,
jugs
of
gasoline, and Amans wallet, car keys, and cell phone was found
in the undamaged part of the restaurant.
Another bottle of
lighter fluid was found in Amans car, Amans fingerprints were

found on some of the gasoline and lighter-fluid containers, and
grocery-store surveillance footage showed Aman buying multiple
bottles of lighter fluid in the days before the fire.
Not
surprisingly, the jury found this evidence sufficient to convict

Aman of arson.
II.
Under
destroy,
by
844(i),
means
of
it
is
fire
a
or
federal
an
crime
explosive,
to
any
damage
or
building,
vehicle, or other real or personal property used in interstate

or foreign commerce or in any activity affecting interstate or
foreign commerce.
18 U.S.C. 844(i) (emphasis added).
On
appeal, Aman argues that the operation of Bridges, a local bar

3
and restaurant serving a predominantly local customer base, did

not substantially affect interstate commerce, as he asserts is
required by United States v. Lopez, 514 U.S. 549 (1995).
Aman
therefore contends that applying 844(i) to his conduct exceeds

the governments authority under the Commerce Clause and that
his conviction must be reversed.
We disagree.
In Jones v. United States, 529 U.S. 848 (2000), the Supreme

Court held that an owner-occupied residence not used for any
commercial
commerce
purpose
or
does
not
qualify
commerce-affecting
as
property
activity,
as
used
required
in
by
844(i), and that arson of such a dwelling, therefore, is not

subject to federal prosecution under 844(i).
Id. at 850-51.
The Court rejected the governments claim that the house was
used
in
interstate
activities
because
it
was
financed
and
insured through out-of-state companies and received natural gas

from an out-of-state supplier.
See id. at 855.
The Court
explained:
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.
If
such connections sufficed to trigger 844(i), the
statute's limiting language, used in any commerceaffecting activity, would have no office.
Id. at 857 (citation omitted).
The Court instead concluded that
the statutes jurisdictional hook -- the requirement that the

building
itself
be
used
in
an
activity
affecting
interstate
commerce -- is most sensibly read to mean active employment for

commercial purposes, and not merely a passive, passing, or past
connection to commerce.
by
limiting
federal
Id. at 855.
arson
The Court explained that
prosecutions
in
this
manner,
the
constitutional question brought to the fore in Lopez could be

avoided.
Id. at 858.
Amans constitutional challenge thus turns on whether the

property
at
issue
in
this
case
was
actively
commercial purposes at the time of the fire.

is
met,
then
the
connection
to
employed
for
If that standard
interstate
commerce
is
substantial enough to quell any Lopez-based concerns about the

propriety
of
the
prosecution.
See
Jones,
529
U.S.
at
858;
United States v. Patton, 451 F.3d 615, 633 (10th Cir. 2006)
(explaining that 844(i)s jurisdictional hook as interpreted
in Jones serve[s] the purpose of limiting the statute to arson
cases where there really was a substantial and non-attenuated
effect on interstate commerce).
The
Jones
[C]ourt
established
two-part
inquiry
to
determine whether a building fits within the strictures of

844(i).
First, courts must inquire into the function of the
building itself.
Second, courts must determine whether that

5
function affects interstate commerce.
United States v. Terry,
257 F.3d 366, 368-69 (4th Cir. 2001) (quoting Jones, 529 U.S. at
854).
As we explain, whether the relevant building is the
seven-story office tower that houses the restaurant or simply

the restaurant itself, the function of that building affects
interstate commerce as a matter of law.
In Russell v. United States, 471 U.S. 858 (1985), the Court
held that where property is being rented to tenants at the time
of an arson, it is unquestionably being used in an activity
affecting commerce within the meaning of 844(i).
Id. at 862.
As the Court explained,

We need not rely on the connection between the market
for residential units and the interstate movement of
people to recognize that the local rental 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.
Id. (footnote and internal quotation marks omitted).
Like the two-unit apartment building in Russell, the 70tenant office building in this case was a part of the broad
commercial market in rental properties.
The office building
thus was being actively employed in a commercial activity that

affects interstate commerce as a matter of law.
See United
States v. Parsons, 993 F.2d 38, 40 (4th Cir. 1993) ([T]he plain
language
of
Russell
controls.
6
If
the
house
was
rental
property at the time of the arson, it was used in an activity

that
affects
interstate
commerce,
and
Parsons
conduct
was
within the statute.); see also United States v. Guzman, 603

F.3d 99, 109 (1st Cir.) (The rule in this circuit is that
rental property is per se sufficiently connected to interstate
commerce to confer federal jurisdiction under Section 844(i).
(internal quotation marks omitted)), cert. denied, 131 S. Ct.
487 (2010); United States v. Iodice, 525 F.3d 179, 183 n.2 (2d
Cir. 2008) (concluding that Russell established a per se rule
that rental property is property used in an activity affecting
interstate commerce).
We would reach the same conclusion even if we disregarded
the
rental-property
aspects
of
this
case
and
restaurant itself as the only relevant building.
viewed
the
Bridges was
operating as a bar and restaurant at the time of the fire, and

that commercial use of the property is enough to establish the
necessary connection to interstate commerce.
F.3d
inside
at
370-71
church
(finding
building
commercial
sufficient
within the scope of 844(i):
daycare
to
bring
See Terry, 257

center
operated
church
building
In both Russell and in the case
at bar, the commercial use of the property brings the building

within
844(i)s
jurisdictional
nexus.);
see
also
United
States v. Soy, 413 F.3d 594, 603-04 (7th Cir. 2005) ([T]he per
se rule set forth in Russell applies equally to restaurants and
7
bars, and, consequently, buildings housing these establishments

are used in interstate commerce for purposes of 844(i).);
United
States
(Russell
v.
Joyner,
mandates
the
201
F.3d
adoption
of
61,
a
79
(2d
similar
Cir.
per
2000)
se
rule
regarding bars or restaurants.); United States v. Serang, 156

F.3d
910,
913-14
(9th
Cir.
commercial property. . . .
1998)
(A
restaurant
is
clearly
As a commercial enterprise, it had a
per se substantial effect on interstate commerce and is subject

to regulation by Congress in 844(i).).
The evidence presented at trial was more than sufficient to
establish the critical jurisdictional facts -- that Bridges at
the time of the fire was an active bar and restaurant operating
out of leased space in a commercial office building.
not
dispute
the
acknowledges
sufficiency
that
establishment.
of
Bridges
Brief
of
was
Appellant
this
evidence,
an
at
Aman does
overtly
14.
and
he
commercial
Aman
insists,
however, that [s]imply engaging in business does not ipso facto

create a substantial [e]ffect on commerce.
Otherwise, limits
[on] Congress authority would collapse into a rule that allowed

federal
jurisdiction
over
all
commerce.
Id.
Again
we
premised
entirely
on
disagree.
Amans
argument
in
this
regard
is
Lopez; Aman does not discuss (or even cite) Jones or Russell in
his brief.
Although Russell was decided well before the Court

8
issued its opinion in Lopez, the Court effectively re-affirmed

Russells holding in Jones.
See Jones, 529 U.S. at 856-57.
Moreover, the Jones Court explained that its construction of

844(i) was reinforced by its opinion in Lopez, id. at 851, and
that the statute raises no Lopez concerns so long as it is
applied only to arson of property that was actively employed for
commercial purposes, see id. at 857-58.
that
the
Aman may well believe
active-employment-for-commercial-purposes
standard
in
fact is inconsistent with Lopez, but that is a matter for the

Supreme Court, not this court.
See United States v. Young, 609
F.3d 348, 356 (4th Cir. 2010).
III.
Because the operation of a restaurant in a leased space is
an activity that affects interstate commerce, we reject Amans
claim that the application of 844(i) to his conduct exceeds
the federal governments authority under the Commerce Clause.
Accordingly, we hereby affirm Amans conviction and sentence.
AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

March 20, 2012

May 10, 2012

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

We find Amans argument unpersuasive, and we

affirm his conviction and sentence.

Bridges occupied almost 10,000 square feet of leased space on

destroyed the restaurants office and damaged other parts of the

Aman was alone in the restaurant when the fire

nearby fire station to report the fire.

The fire had already

Rausch testified that

noticed a large amount of cash stuffed into one of Amans boots.

lighter fluid was found in Amans car, Amans fingerprints were

surprisingly, the jury found this evidence sufficient to convict

vehicle, or other real or personal property used in interstate

18 U.S.C. 844(i) (emphasis added).

appeal, Aman argues that the operation of Bridges, a local bar

and restaurant serving a predominantly local customer base, did

therefore contends that applying 844(i) to his conduct exceeds

In Jones v. United States, 529 U.S. 848 (2000), the Supreme

844(i), and that arson of such a dwelling, therefore, is not

insured through out-of-state companies and received natural gas

See id. at 855.

Id. at 857 (citation omitted).

The Court instead concluded that

the statutes jurisdictional hook -- the requirement that the

commerce -- is most sensibly read to mean active employment for

The Court explained that

constitutional question brought to the fore in Lopez could be

Amans constitutional challenge thus turns on whether the

commercial purposes at the time of the fire.

substantial enough to quell any Lopez-based concerns about the

determine whether a building fits within the strictures of

First, courts must inquire into the function of the

Second, courts must determine whether that

function affects interstate commerce.

United States v. Terry,

As we explain, whether the relevant building is the

seven-story office tower that houses the restaurant or simply

As the Court explained,

The office building

thus was being actively employed in a commercial activity that

property at the time of the arson, it was used in an activity

within the statute.); see also United States v. Guzman, 603

restaurant itself as the only relevant building.

operating as a bar and restaurant at the time of the fire, and

within the scope of 844(i):

See Terry, 257

In both Russell and in the case

at bar, the commercial use of the property brings the building

bars, and, consequently, buildings housing these establishments

regarding bars or restaurants.); United States v. Serang, 156

As a commercial enterprise, it had a

per se substantial effect on interstate commerce and is subject

however, that [s]imply engaging in business does not ipso facto