United States v. Milligan , 3 F. App'x 169 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-7068
ROBERT RICHARD MILLIGAN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-96-437-JFM, CA-99-3899-JFM)
Submitted: January 31, 2001
Decided: February 22, 2001
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Nina J. Ginsberg, DIMURO, GINSBERG & MOOK, P.C., Alexan-
dria, Virginia, for Appellant. Lynne A. Battaglia, United States Attor-
ney, Joseph L. Evans, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MILLIGAN
OPINION
PER CURIAM:
Robert Richard Milligan appeals from the district court’s final
order entered on June 28, 2000, denying a petition for writ of habeas
corpus. Milligan, who previously pled guilty to arson under 18
U.S.C.A. § 844(i) (West Supp. 2000), was sentenced to 210 months
in prison followed by a three-year term of supervised release. He filed
his motion under 28 U.S.C.A. § 2255 (West Supp. 2000), claiming
that in light of Jones v. United States, 120 S. Ct. 1904 (2000), the
building located at 1311 N. Rose Street, the subject of the arson of
which Milligan was convicted, was not covered by the federal arson
statute, 18 U.S.C. § 844(i). For the reasons set forth below, we affirm
Milligan’s conviction and sentence.
Section 844(i) prohibits the arson or attempted arson of property
"used in interstate or foreign commerce or in any activity affecting
interstate or foreign commerce." In Jones v. United States, the
Supreme Court held that § 844(i) covered only property currently
used in commerce or in an activity affecting commerce, and that an
owner-occupied home used as a dwelling place for everyday family
living is not property "used in interstate commerce." Id. at 1912.
Milligan argues that the vacant, uninhabitable building at 1311 N.
Rose Street, previously leased as a private residence, was not actively
used for any commercial purpose at the time of the fire, and therefore,
is not property "used" in commerce or commerce-affecting activity
and is not subject to federal prosecution under § 844(i). He asserts the
evidence that the dwelling at 1311 N. Rose Street was used in an
activity affecting commerce was insufficient to satisfy the interstate
commerce nexus, claiming that there was no evidence supporting fed-
eral jurisdiction at the time of the fire, because at the time it burned,
it was vacant and uninhabitable1 from a fire ten days earlier, and fur-
ther that federal jurisdiction is lacking because there is no evidence
1
The government correctly noted in its brief that while Milligan refers
to the property as "uninhabitable," the only record description of the unit
is that before July 1 it was occupied by a tenant who was moved out
against her will, and after the July 1, fire, it "had only minimal damage."
UNITED STATES v. MILLIGAN 3
that Milligan intended to improve or repair the building, or return it
to the rental market.
We find that Milligan’s claim that the building he burned was not
a "rental property" affecting commerce at the time of the fire because
the building was vacant at the time of the fire strains credibility under
the facts of this case. The record reveals that Milligan moved the ten-
ant out only twelve hours before the first arson attempt,2 he had rented
the unit for years prior to the arson, he planned the crime while the
unit was still occupied,3 and he renewed the insurance the day before
the arson attempt, again while it was still occupied by a tenant. These,
and other facts, including Milligan’s history of burning that specific
property, collecting the insurance, and then re-renting it, strongly sup-
port the conclusion that the unit was not a vacant building, but rather
was actively being used commercially at the time of the fire.
Moreover, the fact that Milligan had evicted the final tenant in
anticipation of and in order to facilitate the arson does not mean that
the property was not currently used in commerce,4 particularly where
the intention to commit the arson and the planning for that arson arose
2
In the context of analyzing whether a property remained rental prop-
erty even when vacant at the time of a fire, this court has previously held
that, "vacancy alone does not constitute a ‘removal’ from the rental mar-
ket." United States v. Parsons, 993 F.2d 38, 41 (4th Cir. 1993) (citations
omitted); see also United States v. Mayberry, 896 F.2d 1117, 1120 (8th
Cir. 1990) (temporary closure of commercial enterprise does not under-
mine federal arson jurisdiction).
3
Specifically, beginning in May 1995, while 1311 N. Rose Street was
still occupied by Pamela Buckson, Milligan began direct preparations to
burn it down.
4
Milligan’s reliance upon United States v. Gaydos, 108 F.3d 505 (3d
Cir. 1997), and United States v. Ryan, 227 F.3d 1058 (8th Cir. 2000), to
support his claim that vacancy at the time of the fire is sufficient to stave
off federal jurisdiction is misplaced, as those cases are distinguishable on
their facts. In Gaydos (lead paint contamination) and Ryan (business fail-
ure), the factors upon which the holdings were based were objective
commercial circumstances, as compared to the vacancy and (alleged)
uninhabitability here which were direct functions of the criminal enter-
prise itself.
4 UNITED STATES v. MILLIGAN
while the tenant occupied the property and where the tenant was
removed only hours before an initial but unsuccessful arson attempt.
Accordingly, we affirm the district court’s denial of Milligan’s
§ 2255 motion, and uphold Milligan’s conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED