USA v. Andrea Forsythe

Filing

NOT PRECEDENTIAL OPINION Coram: SMITH, Chief Judge MCKEE and RESTREPO, Circuit Judges. Total Pages: 14. Judge: Chief Judge SMITH Authoring.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1019
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UNITED STATES OF AMERICA
v.
ANDREA FORSYTHE,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-14-cr-00291-001
District Judge: The Honorable Cathy Bissoon
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
September 25, 2017
Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges
(Filed: October 12, 2017)
_____________________
OPINION
_____________________



This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.

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SMITH, Chief Judge.
Andrea Forsythe burned down a house she was renting in Sturgeon,
Pennsylvania, in an attempt at insurance fraud. She conditionally pleaded guilty
to, inter alia, one count of malicious destruction of property by fire under 18
U.S.C. § 844(i). She now appeals, arguing that Congress lacks the power under the
Commerce Clause of the United States Constitution to criminalize the destruction
of a Pennsylvania residence that Forsythe rented from a fellow Pennsylvanian.
The Government argues that Forsythe’s conditional guilty plea waived her
right to appeal this issue, but we have held that arguments that Congress lacked
power to criminalize a given defendant’s actions under the Commerce Clause are
jurisdictional issues that cannot be waived.
Reaching the merits of that constitutional challenge, we conclude that
Forsythe’s argument fails. Russell v. United States, 471 U.S. 858 (1985), squarely
held that § 844(i) constitutionally criminalizes burning rented homes. Forsythe
argues that United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison,
529 U.S. 598 (2000), and Jones v. United States, 529 U.S. 848 (2000), have eroded
the authority of Russell. Essentially, Forsythe acknowledges that Russell is on
point and asks us to overrule it. As we have repeatedly explained, we must follow
apposite Supreme Court cases until the Supreme Court itself overrules them.
Moreover, Forsythe’s cases do not contradict Russell. Section 844(i) as applied to
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Forsythe is a constitutional exercise of power under the Commerce Clause
because, among other things, it clearly regulates economic activity and contains a
jurisdictional element. To the extent Forsythe raised a statutory argument, it also
fails under Russell.
BACKGROUND
Because Forsythe stated in open court that she agreed with the
Government’s summary of the facts during her guilty plea colloquy, the facts here
are uncontested. See App. 79–83.
Forsythe was a nanny who stole a diamond necklace from her employer.
She lived in a rented house in Sturgeon, Pennsylvania. She then took out a renter’s
insurance policy, pawned the necklace, burned down her rented house, and made a
claim on her policy, including the necklace as though it had been destroyed in the
fire. A few months later, Forsythe admitted that she set fire to the house and that
she pawned the jewelry before starting the fire.
Forsythe was indicted and ultimately pleaded guilty to malicious destruction
of property by fire in violation of 18 U.S.C. § 844(i).1 That statute reads in
relevant part:
Whoever maliciously damages or destroys, or attempts to
damage or destroy, by means of fire or an explosive, any
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Forsythe also pleaded guilty to wire fraud under 18 U.S.C. § 1343. Because
Forsythe does not challenge that conviction, we do not discuss it further.
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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. . . .
18 U.S.C. § 844(i) (emphasis added). In 1985, a unanimous Supreme Court held in
Russell that “buildings used in interstate commerce” include rented residential
property. See Russell, 471 U.S. at 862 (“[T]he statute . . . applies to property that
is ‘used’ in an ‘activity’ that affects commerce. The rental of real estate is
unquestionably such an activity.”). In so doing, the Court impliedly held that
§ 844(i) was constitutional as applied to rented residential property and explained
that the relevant language in § 844(i) “expresses an intent by Congress to exercise
its full power under the Commerce Clause.” Id. at 859.
After indictment, Forsythe filed a motion to dismiss, arguing that a troika of
cases—United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison,
529 U.S. 598 (2000), and Jones v. United States, 529 U.S. 848 (2000)—“compel
the conclusion that the jurisdictional element of the federal arson statute has not
been satisfied in this case.” App. 31. Specifically, Forsythe argued that Congress
did not have the power to criminalize the destruction of the rented home because
“[t]he intrastate ‘rental’ of a residential property” did not bring the house within

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Congress’s power to regulate under the Commerce Clause. App. 31.2
The District Court denied Forsythe’s motion: “The government’s proffer of
its intended evidence is sufficient to establish the interstate commerce element of
the charged offense under those cases. It must be given an opportunity to present
such evidence to the jury. Defendant has preserved her right to seek relief on
appeal.” App. 2 (United States v. Forsythe, No. 2:14-cr-00291-CB-1 (W.D. Pa.
Mar. 23, 2016), ECF No. 41).
Forsythe subsequently entered a conditional plea of guilty under Rule
11(a)(2) of the Federal Rules of Criminal Procedure. Forsythe’s conditional plea
stated:
As a condition of her guilty plea, Andrea Forsythe may take
a direct appeal from her conviction limited to the following
issue: Was the residential structure located at [. . .] McVey
Street in Sturgeon, Pennsylvania being used in interstate
commerce or in an activity affecting interstate commerce
within the meaning of 18 U.S.C. § 844(i) on or about June 23,
2014?
Appellee Br. at 11 (emphasis added). The agreement further specified that the
“reservation of the right to appeal the basis of the specified issue does not include

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Arguably, part of the motion to dismiss made a statutory interpretation argument.
See App. 40 (“Construing the federal arson statute consistent with the Supreme
Court’s approach in Jones, § 844(i) does not reach rental residential property
where the rental activity is exclusively intrastate.”). As discussed below, this
argument is meritless.
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the right to raise issues other than the issue specified.” Id. Following her plea,
Forsythe was sentenced to sixty months’ imprisonment and ordered to pay roughly
$179,000 in restitution payments. This timely appeal followed.
JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291.
We review all three issues—waiver, the as-applied constitutional challenge,
and any statutory interpretation issue—de novo because they are legal issues. See
United States v. Hardwick, 544 F.3d 565, 570 (3d Cir. 2008) (“Because the
interpretation of a contract generally is a question of law, we review the District
Court’s interpretation of the terms of the waiver [in the plea agreement] de
novo.”); United States v. Torres, 383 F.3d 92, 95 (3d Cir. 2004) (explaining that
we review legal issues such as statutory construction and constitutional issues de
novo).
ANALYSIS
The Government argues that Forsythe’s constitutional challenge was
unpreserved by her conditional plea. We have held a defendant’s claim that
Congress lacked power under the Commerce Clause to criminalize his or her
behavior is jurisdictional and therefore cannot be waived.
However, Forsythe’s constitutional challenge is meritless. Forsythe wants
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us to declare Russell a dead letter. But, we, as an “inferior Court[],” U.S. Const.
art. III, § 1, plainly lack the power to overrule the Supreme Court’s decision in
Russell, even had Forsythe’s arguments been persuasive. We further explain why
Forsythe’s argument is not persuasive.
Finally, to the extent Forsythe made a statutory argument on appeal, it, too,
is meritless in light of Russell and Jones’s approval of Russell.
I. Forsythe Could Not Waive Her As-Applied Constitutional Challenge
Forsythe’s constitutional challenge to § 844(i) goes well beyond the
“meaning of 18 U.S.C. § 844(i),” an issue that might have been explicitly
preserved by her plea. Indeed, on reply, Forsythe essentially admits that she wants
to go beyond the text of the plea to reach the constitutional issue.3
Forsythe offers two reasons why the constitutional argument comes within
the conditional plea: (1) the plea was meant to track her motion to dismiss and (2)
the constitutional issue is jurisdictional and therefore cannot be waived. We need
not reach the first argument, as the second has merit.
Forsythe argues that she could not waive her as-applied constitutional
challenge because it goes to the trial court’s jurisdiction. Under Third Circuit law,
that is correct. In United States v. Whited, we held that a criminal defendant who

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See Reply Br. at 4.
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argued in her pretrial motion that a criminal statute exceeded the limits of the
Commerce Clause as applied to her could raise the same issue on appeal even
though she “did not preserve her right to appeal the pretrial motion by entering a
conditional guilty plea.” 311 F.3d 259, 262 (3d Cir. 2002) (citing United States v.
Rodia, 194 F.3d 465, 469 (3d Cir. 1999)).4 A fortiori, here, Forsythe can still raise
her as-applied Commerce-Clause challenge even though it is not expressly
preserved by her conditional guilty plea.
Therefore, we proceed to consider Forsythe’s constitutional argument.
II. Lopez, Morrison, and Jones Do Not Alter Our Duty to Adhere to Russell
As noted above and as we have held previously, Russell held that Congress
constitutionally could and did regulate the destruction of rental property in
§ 844(i). See United States v. Gaydos, 108 F.3d 505, 509 (3d Cir. 1997) (“We
believe that Russell’s interpretation of § 844(i), and its holding, that the statute

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We have also twice held that facial challenges that criminal statutes went beyond
Congress’s power under the Commerce Clause are jurisdictional issues that cannot
be waived. See United States v. Bishop, 66 F.3d 569, 572 n.1 (3d Cir. 1995)
(“Although Bishop pleaded guilty without reserving his right to appeal his motion
to dismiss the indictment because of the alleged constitutional invalidity of section
2119, see Fed. R. Crim. P. 11(a)(2), we have jurisdiction over his appeal of this
issue because it goes to the jurisdiction of the district court.”); United States v.
Rodia, 194 F.3d 465, 469 (3d Cir. 1999) (“Rodia did not preserve his right to
appeal by entering a conditional guilty plea. See Fed. R. Crim. P. 11(a)(2).
However, since the issue presented goes to the jurisdiction of the District Court, we
have jurisdiction over his appeal.”).
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constitutionally regulates arson of business property that satisfies the requisite
jurisdictional element, is still authoritative precedent.”). Forsythe argues that
Lopez, Morrison, and Jones undermined Russell.
Even assuming that Forsythe’s argument were correct, we are bound to
follow the Supreme Court’s decision in Russell. See, e.g., United States v. Extreme
Assocs., Inc., 431 F.3d 150, 155–56 (3d Cir. 2005) (stressing, at length, that the
Third Circuit cannot ignore a Supreme Court case directly on point unless that case
has been completely abrogated); Jerome Frank, Words and Music: Some Remarks
on Statutory Interpretation, 47 Colum. L. Rev. 1259, 1271 (1947) (“A court like
that on which I sit, an intermediate appellate court, is, vis-a-vis the Supreme Court,
‘merely a reflector, serving as a judicial moon.’” (quoting Choate v. Comm’r, 129
F.2d 684, 686 (2d Cir. 1942))).
For instance, more than fifteen years ago, a criminal defendant argued that,
under Lopez, Morrison, and Jones, Congress did not have the power to punish
defendants under the felon-in-possession statute, 18 U.S.C. § 922(g)(1). See
United States v. Singletary, 268 F.3d 196, 197, 200 (3d Cir. 2001). As in this case,
the Supreme Court had ruled that the statute was constitutional before Lopez,
Morrison, and Jones. See Singletary, 268 F.3d at 200 (describing Scarborough v.
United States, 431 U.S. 563 (1977)). Discussing the defendant’s argument that
Lopez, Morrison, and Jones required us to disregard the Court’s apposite
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precedent, we explained:
[E]ven if there were merit to Singletary’s argument that the
Supreme Court’s trinity of Commerce Clause decisions have
somehow weakened the precedential value of Scarborough,
we may not precipitate its decline. The Supreme Court itself
has admonished lower courts to follow its directly applicable
precedent, even if that precedent appears weakened by
pronouncements in its subsequent decisions, and to leave to
the Court itself “the prerogative of overruling its own
decisions.”
Id. at 205 (quoting Agostini v. Felton, 521 U.S. 203, 237 (1997)). So, too, we
cannot “precipitate [the] decline” of Russell.
In any event, there does not appear to be merit to Forsythe’s argument that
Lopez, Morrison, or Jones significantly undermined Russell.5 Lopez and Morrison
show that Congress’s power to criminalize certain behavior is limited. In Lopez,
the Supreme Court held that Congress did not have authority under the Commerce
Clause to criminalize the possession of a firearm in a school zone “because the
statute neither regulated a commercial activity (possession of a gun near a school)
nor contained a requirement that the possession of a firearm in a school zone be
connected in any way to interstate commerce.” Singletary, 268 F.3d at 200 (citing
Lopez, 514 U.S. at 551, 567–68). In Morrison, the Supreme Court held that

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It is notable that Forsythe could not point to any court that has held that Russell is
no longer controlling precedent even though it has been seventeen years since
Morrison and Jones were decided.
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Congress did not have power under the Commerce Clause to pass the Violence
Against Women Act because it “contain[ed] no jurisdictional element establishing
that the federal cause of action is in pursuance of Congress’ power to regulate
interstate commerce” and because the connection between regulating violence
against women and interstate commerce was too attenuated. See Morrison, 529
U.S. at 613–18; Singletary, 268 F.3d at 202–03.
We previously held that Russell remained binding precedent following
Lopez, see Gaydos, 108 F.3d at 509 (“[W]e join the other circuits which have
concluded that § 844(i) remains constitutionally viable after Lopez.”), and, as
briefly summarized above, Morrison is very similar to Lopez, see Whited, 311 F.3d
at 266 (noting that Morrison “echoed both the holding of Lopez and its underlying
reasoning”). Therefore, there is no reason to believe either case weakens Russell.
Indeed, this case is decidedly different from the criminalization of gun
possession and gender-motivated violence at issue in Lopez and Morrison,
respectively, because as Russell explained, there cannot be any doubt that renting
property is economic activity and because § 844(i) has a jurisdictional element.
See, e.g., Delaware Cty. v. Fed. Hous. Fin. Agency, 747 F.3d 215, 227 (3d Cir.
2014) (“The lesson to be drawn from Lopez and Morrison is that whether the
activity is economic in nature is central to our analysis . . . .”); United States v.
Walker, 657 F.3d 160, 179 (3d Cir. 2011); see also United States v. Kukafka, 478
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F.3d 531, 535–36 (3d Cir. 2007) (“[A] court should consider: (1) ‘the economic
nature of the regulated activity;’ (2) ‘a jurisdictional element limiting the reach of
the law to a discrete set of activities that additionally has an explicit connection
with or effect on interstate commerce;’ (3) ‘express congressional findings
regarding the effects upon interstate commerce of the activity in question;’ and (4)
‘the link between the regulated activity and interstate commerce.’” (quoting United
States v. Gregg, 226 F.3d 253, 262 (3d Cir. 2000))).
Not only is there no reason to believe that Lopez or Morrison calls Russell
into question, but there is likewise no reason to believe that Jones deprecates
Russell. In Jones, the Supreme Court held 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).” Jones, 529 U.S. at 850–51. The Jones
court explicitly distinguished the case before it from Russell because the property
was owner-occupied. See Jones, 529 U.S. at 854 (“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.”). Indeed, many read Jones as reaffirming Russell. See United States v.
Hang Le-Thy Tran, 433 F.3d 472, 477 (6th Cir. 2006) (“The Supreme Court’s later
ruling in Jones . . . did not disturb the Court’s holding in Russell that the arson
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statute applies to rental properties.”); United States v. Logan, 419 F.3d 172, 180
(2d Cir. 2005) (“[T]he Supreme Court cited Russell with approval in Jones, which
was decided after Morrison and Lopez.”); United States v. Grassie, 237 F.3d 1199,
1208 (10th Cir. 2001) (“Indeed, the Court relied upon its prior decision in
Russell . . . .”); Groome Resources Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d
192, 207 (5th Cir. 2000) (“This recognition was reaffirmed in the recent Jones
decision.”); id. at 207 n.23 (“In the instant case, the house is functioning as a rental
unit for disabled individuals, which under Russell can be regulated under the
commerce power.”).
Because Russell is directly on point and the Supreme Court has never
expressly overruled it, we must follow it. Even if we could consider whether
Lopez, Morrison, and Jones eroded Russell, we would conclude that Russell
remains correct.
III. To the Extent Forsythe Made Any Purely Statutory Argument, It Fails
Because Jones Adhered to Russell
To the extent that Forsythe argued that the statutory interpretation in Jones
would change our interpretation of Russell, she is wrong. As noted above, Jones
took pains to stress its consistency with Russell. See, e.g., Jones, 529 U.S. at 856
(“Our decision in Russell does not warrant a less ‘use’-centered reading of
§ 844(i).”). Because the Supreme Court’s construction in Russell is binding, we
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hold that § 844(i) reaches the destruction of residential property rented by one
Pennsylvanian from another.
CONCLUSION
For the reasons stated above, we will affirm the judgment of the District
Court.

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