United States v. Katherine Pappadopoulos

64 F.3d 522 64 USLW 2136 , 42 Fed. R. Evid. Serv. 930 , 95 Cal. Daily Op. Serv. 6743 , 95 Daily Journal D.A.R. 11,581 , 95 Daily Journal D.A.R. 15 ,037 UNITED STATES of America, Plaintiff-Appellee, v. Katherine PAPPADOPOULOS, Defendant-Appellant. No. 93-10577. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 13, 1995. Decided Aug. 25, 1995. As Amended on Denial of Rehearing and Suggestion for Rehearing En Banc Nov. 13, 1995. Lauren J. Weil, Asst. Federal Defender, Sacramento, CA, for defendant-appellant. Steven R. Lapham, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California. Before: WALLACE, Chief Judge, HUG, and FARRIS, Circuit Judges. Opinion by Chief Judge WALLACE; Concurrence by Judge FARRIS. WALLACE, Chief Judge: 1 Katherine Pappadopoulos appeals from her convictions for conspiracy, 18 U.S.C. Sec. 371 , arson, 18 U.S.C. Sec. 844 (i), arson to commit another felony, 18 U.S.C. Sec. 844 (h)(1), mail fraud, 18 U.S.C. Sec. 1341 , and interstate transportation of property taken by fraud, 18 U.S.C. Sec. 2314 . The district court had jurisdiction under 18 U.S.C. Sec. 3231…

Opinion by Chief Judge WALLACE; Concurrence by Judge FARRIS.

Katherine Pappadopoulos appeals from her convictions for conspiracy, 18 U.S.C. § 371 , arson, 18 U.S.C. § 844 (i), arson to commit another felony, 18 U.S.C. § 844 (h)(1), mail fraud, 18 U.S.C. § 1341 , and interstate transportation of property taken by fraud, 18 U.S.C. § 2314 . The district court had jurisdiction under 18 U.S.C. § 3231 . We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 . We affirm in part, reverse in part, and remand.

I

Pappadopoulos and her husband, who were experiencing severe financial trouble, conspired with Orfanos to burn the Pappadopou-loses’ 10,000 square foot home in Sacramento, California. In August 1992, the Pappado-pouloses went to Greece, where they received numerous telephone calls from Orfanos. Two of these calls, taped by Orfanos, pertained to the method Orfanos would use to burn the home. On September 1, Orfanos entered the home, poured lacquer thinner throughout, and set fire to the residence. After the fire, Orfanos called a friend, Marshall, and explained that the house was on fire and that his car was still in the garage of the home and that he needed a…

concurring:

In United States v. Lopez, — U.S. —, —, 115 S.Ct. 1624, 1630 , 131 L.Ed.2d 626 (1995), the Supreme Court held that Congress may regulate intrastate activities that substantially affect interstate commerce. See also United States v. Robertson, — U.S. —, —, 115 S.Ct. 1732, 1733 , 131 L.Ed.2d 714 (1995). In part II we determine whether a private home supplied with out-of-state natural gas satisfies this test. If it does not, the government has not satisfied the jurisdictional element of 18 U.S.C. § 844 (i), and Pappo-dopoulos’s conviction must be reversed.

I agree with the majority’s opinion that “[t]he arson of a [private home] has only a remote and indirect effect on interstate commerce.” The receipt of interstate natural gas does not establish a sufficient nexus with interstate commerce. See United States v. Bass, 404 U.S. 336, 347 , 92 S.Ct. 515, 522 , 30 L.Ed.2d 488 (1971).

The Supreme Court has upheld a variety of congressional Acts regulating intrastate economic activity even if individual cases only indirectly affect interstate commerce. Lopez , at-, 115 S.Ct. at 1630. The rationale is that the aggregate effect of economic regulation is substantial. In Wickard…