United States of America v. Douglas Hersom

Of the Federal Circuit, sitting by designation.*
United States Court of Appeals
For the First Circuit
No. 07-2401
UNITED STATES OF AMERICA,
Appellee,
v.
DOUGLAS HERSOM,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Boudin, and Dyk,*
Circuit Judges.
David Shaughnessy for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
December 3, 2009

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DYK, Circuit Judge. This is an appeal from a criminal
conviction of arson in the United States District Court for the
District of Maine. Defendant Douglas Hersom pled guilty to a
charge that he maliciously destroyed by fire a building owned by an
institution “receiving Federal financial assistance” in violation
of 18 U.S.C. § 844(f). On appeal, Hersom contends that his
conviction should be reversed because the statute is
unconstitutional, or that the statute should be construed to be
inapplicable to the circumstances of his case. Alternatively, he
contends that resentencing is required because the district court
erroneously determined that he was a career offender under the U.S.
Sentencing Guidelines (“Guidelines”). U.S. Sentencing Guidelines
Manual § 4B1.1 (“U.S.S.G.”).
We conclude that 18 U.S.C. § 844(f), as properly
construed, is a permissible exercise of Congress’s power under the
Property Clause of the Constitution. U.S. Const. art. IV, § 3, cl.
2. We also hold that the statute is applicable in the
circumstances of this case, and thus we affirm the conviction.
Finally, we vacate the sentence and remand for resentencing in
light of this Court’s intervening decision in United States v.
Giggey, 551 F.3d 27 (1st Cir. 2008) (en banc).
I.
On May 24, 2007, defendant Hersom pled guilty to one
count of arson in violation of 18 U.S.C. § 844(f). Hersom
stipulated that on December 19, 2006, he, co–defendant Timothy

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Giggey, and an unnamed juvenile male intentionally set three
separate fires which ultimately destroyed the entire block of four
buildings located from 159 to 177 Lisbon Street in Lewiston, Maine.
The specific property listed in the indictment, 171 Lisbon Street,
was owned by Greely Capital, LLC (“Greely”). The City of Lewiston
provided financing to renovate the properties (in the amount of
$50,000), utilizing funds obtained through a Community Development
Block Grant (“CDBG”) from the U.S. Department of Housing and Urban
Development (“HUD”).
At the sentencing hearing, the court determined that
Hersom was a career offender under U.S.S.G. § 4B1.1 because he had
two predicate offenses. Hersom’s two prior felony convictions
included a March 2000 conviction for burglary of a dwelling
structure and a February 2004 conviction for burglary of a
commercial structure. The court sentenced Hersom to 151 months in
prison and ordered him to pay restitution of $351,333.33. Hersom
timely appealed, and we have jurisdiction under 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a).
Following oral argument, we requested supplemental
briefing concerning the proper construction of 18 U.S.C. § 844(f)
and the constitutionality of the statute as so construed.
II.
A. The Scope of 18 U.S.C. § 844(f)
Congress enacted 18 U.S.C. § 844(f) as part of Title XI
of the Organized Crime Control Act of 1970. Pub. L. No. 91-452, 84

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The government contends that defendant did not raise and1
preserve the issue of the constitutionality or construction of 18
U.S.C. § 844(f). Hersom contends that the issue is jurisdictional
and that in any event the issue was not waived because trial
counsel provided ineffective assistance. We need not determine
whether the issue is waived in light of our disposition.
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Stat. 922, 957 (codified as amended in scattered sections of 18
U.S.C.). The statute makes it a crime to destroy
by means of fire or an explosive, any
building, vehicle, or other personal or real
property in whole or in part owned or
possessed by, or leased to, the United States,
or any department or agency thereof, or any
institution or organization receiving Federal
financial assistance.
18 U.S.C. § 844(f)(1) (emphases added). Section 844(f) was
promulgated pursuant to Congress’s power under the Property Clause
of the Constitution. H.R. Rep. No. 91-1549 (1970), as reprinted in
1970 U.S.C.C.A.N. 4007, 4046. The Property Clause of the
Constitution provides that “Congress shall have Power to dispose of
and make all needful Rules and Regulations respecting the Territory
or other Property belonging to the United States.” U.S. Const.
art. IV, § 3, cl. 2.
On appeal, Hersom argues that to pass constitutional
muster, section 844(f) must be interpreted as applying only to
property owned, possessed, or leased by the United States, its
departments and agencies, and property owned, possessed, or leased
by “federal instrumentalities,” i.e. institutions or organizations
“substantially funded by the federal government and effectuating a
specific Congressional purpose.” Appellant’s Br. 51. Thus, 1

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Hersom’s theory is that the federal government’s power under the
Property Clause does not extend beyond property owned, possessed,
or leased by the federal government and its instrumentalities.
However, the Supreme Court, in a case curiously not cited by either
party, has held that the Property Clause authority is not so
limited. In Ruddy v. Rossi, 248 U.S. 104, 106-07 (1918), the Court
upheld under the Property Clause provisions of the Homestead Act,
Pub. L. No. 37-64, 12 Stat. 392 (1862), that provided that federal
lands transferred to settlers by the United States could not be
reached under state law to satisfy debts contracted prior to the
transfer. 248 U.S. at 106. Thus, at least in some circumstances,
Congress may properly enact legislation under the Property Clause
power governing the conduct of third parties with respect to
property not owned, possessed, or leased by the United States, its
agencies, or its instrumentalities where such regulation is
necessary to protect property acquired from the federal government.
Hersom alternatively contends that section 844(f) should
be construed to be limited to “federal instrumentalities,” because
of the Supreme Court’s decision in United States v. Walter, 263
U.S. 15 (1923). In Walter, Congress had enacted a federal criminal
statute punishing fraud against “any corporation in which the
United States of America is a stockholder.” 263 U.S. at 16; see
Act of October 23, 1918, Pub. L. No. 65–228, 40 Stat. 1015. The
defendant had defrauded the United States Emergency Fleet
Corporation (“Fleet Corporation”), a corporation in which the

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United States owned all of the stock. Walter, 263 U.S. at 16. The
Court held that the criminal statute “should be construed to refer
only to corporations like the Fleet Corporation that are
instrumentalities of the government and in which for that reason it
owns stock,” in order to avoid the constitutional issue raised by
interpreting the statute to encompass “any corporation in which the
United States owned a single share of stock.” Id. at 17-18.
However, Walter does not compel a “federal instrumentalities”
construction of section 844(f). Nothing in the Court’s opinion in
Walter foreclosed the possibility that some other federal interest
in property, more substantial than ownership of a “single share of
stock,” would be sufficient to withstand constitutional scrutiny.
Moreover, the language of the 1918 Act was ambiguous as
to what level of stock ownership was sufficient to trigger coverage
under the statute. In contrast, section 844(f) expressly applies
to “any institution or organization receiving Federal financial
assistance.” The legislative history accompanying the recent 2002
amendment to section 844(f) (restoring the federal financial
assistance language) also does not suggest that section 844(f) is
limited to “federal instrumentalities.” See Homeland Security Act,
Pub. L. No. 107-296, § 1125, 116 Stat. 2135, 2285. That history
contains no reference to “federal instrumentalities,” and refers to
institutions or organizations “receiving Federal financial
assistance.” See 18 U.S.C. § 844(f); H.R. Rep. No. 107-658, at 5-
6 (2002).

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See, e.g., 6 C.F.R. § 17.105(9) (defining “Federal financial2
assistance” with respect to Title IX for the Department of Homeland
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Hersom makes two additional arguments in favor of his
“federal instrumentality” construction, neither of which we find
persuasive. First, Hersom correctly points out that the
legislative history of an earlier version of the statute containing
the “Federal financial assistance” language stated that it applied
to “universities, hospitals, and police stations.” Appellant’s Br.
46; H.R. Rep. No. 91-1549, as reprinted in 1970 U.S.C.C.A.N. at
4014. But we do not think this suggests that the statute is
limited to federal instrumentalities; if anything, it suggests the
contrary. Second, Hersom argues that in United States v.
Kimberlin, the Seventh Circuit adopted a “federal instrumentality”
construction. 805 F.2d 210 (7th Cir. 1986). It is true that the
Seventh Circuit suggested that the statute applied only to “federal
instrumentalities,” but the court’s definition of a federal
instrumentality was quite different from Hersom’s. In Kimberlin,
the court viewed a federal instrumentality as an institution which
“effectuates a national program with federal funds.” Id. at 242.
This is a much broader construction than Hersom advocates, and is
analogous to the construction we adopt below.
While neither the statutory text nor the legislative
history sheds adequate light on the precise scope of “receiving
Federal financial assistance,” the phrase is used in other federal
statutes and regulations. The Supreme Court has recognized that 2

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Security as a “grant or loan of Federal financial assistance,” a
“grant of Federal real or personal property or any interest
therein,” “[p]rovision of the services of Federal personnel,”
“[s]ale or lease of Federal property or any interest therein at
nominal consideration or at consideration reduced for the purpose
of assisting the recipient,” and “[a]ny other contract, agreement,
or arrangement that has as one of its purposes the provision of
assistance to any education program or activity”); 7 C.F.R. §
15.2(g) (defining “Federal financial assistance” for the Department
of Agriculture with respect to effectuation of Title VI of the
Civil Rights Act of 1964 as including “(1) grants and loans of
Federal funds, (2) the grant or donation of Federal property and
interests in property, (3) the detail of Federal personnel, (4) the
sale and lease of, and the permission to use (on other than a
casual or transient basis), Federal property or any interest in
such property or the furnishing of services without consideration
or at a nominal consideration, or at a consideration which is
reduced for the purpose of assisting the recipient, . . . and (5)
any Federal agreement, arrangement, or other contract which has as
one of its purposes the provision of assistance”).
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in general, similar language used in federal statutes should be
given a similar construction, unless the purpose of the statute or
its legislative history suggests otherwise. In Rutledge v. United
States, the Court adopted the analysis of the plurality opinion in
Jeffers v. United States, 432 U.S. 137 (1977), in which Justice
Blackmun interpreted the phrase “in concert” in 21 U.S.C. § 848 to
connote “cooperative action,” because “in concert” had been
similarly construed in other federal statutes. Rutledge, 517 U.S.
292, 299 n.10, 300 (1996). Absent “any indication . . . to the
contrary” in the legislative history or elsewhere, it appeared that
Congress intended the same words to have the same meaning in
section 848. Id. at 299 n.10 (quoting Jeffers, 432 U.S. at 149).
Similarly, in Reina v. United States, the Court interpreted the
phrase “in any court” in 18 U.S.C. § 1406 to cover both federal and

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state prosecutions because the same language in other statutes had
been so construed. 364 U.S. 507, 510 (1960).
The Court’s precedent interpreting the meaning of
“receiving Federal financial assistance” in the civil rights
statutes is thus illuminating. See, e.g., Grove City College v.
Bell, 465 U.S. 555, 569-70 (1984). In those cases, the Supreme
Court held that the statutes covered organizations that are
“intended recipients” of federal financial assistance, even if the
aid flowed through a conduit. In Grove City College v. Bell, the
Supreme Court considered the meaning of the phrase within the
context of Title IX, 20 U.S.C. § 1681, which prohibits sex
discrimination in “any education program or activity receiving
Federal financial assistance.” Grove City, 465 U.S. at 563-70.
Grove City, a private college, declined to participate in all
federal financial aid programs that would have provided funds
directly to the university. Id. at 561. However, it enrolled a
number of students who received Basic Educational Opportunity
Grants (“BEOGs”) from the federal government. Id. The Court
concluded that, although Grove City received federal financial
assistance indirectly, it was nonetheless an “intended recipient”
of federal financial assistance, and Title IX was applicable to the
institution. Id. at 569-70. Thus, a private college receiving
indirect federal financial assistance through student educational
grants was held to be “receiving Federal financial assistance.”
Id.

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Hersom correctly points out that not all beneficiaries of
federal funding fall into the category of organizations “receiving
Federal financial assistance,” relying on United States Department
of Transportation v. Paralyzed Veterans of America, 477 U.S. 597
(1986). At issue in Paralyzed Veterans was the applicability of
section 504 of the Rehabilitation Act, which prohibits
discrimination against any qualified handicapped individual in “any
program or activity receiving Federal financial assistance.” 29
U.S.C. § 794 (1982). The court of appeals concluded that section
504 applied to all air carriers by virtue of the extensive program
of federal financial assistance provided to airports under the
Airport and Airway Development Act of 1970, Pub. L. No. 91-258, 84
Stat. 219, and the Airport and Airway Improvement Act of 1982, Pub.
L. No. 97-248, 96 Stat. 324, 671 (1982). Paralyzed Veterans, 477
U.S. at 603. The Supreme Court reversed, holding that the intended
recipients of federal financial assistance under the statutes were
the operators of the airports, not the air carriers:
It is not difficult to identify the
recipient of federal financial assistance
under these Acts: Congress has made it
explicitly clear that these funds are to go to
airport operators. Not a single penny of the
money is given to the airlines. Thus, the
recipient for purposes of § 504 is the
operator of the airport and not its users.
Id. at 605 (emphasis in original); see also National Collegiate
Athletic Ass’n v. Smith, 525 U.S. 459, 468 (1999) (“Entities that
receive federal assistance, whether directly or through an
intermediary, are recipients within the meaning of Title IX;

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entities that only benefit economically from federal assistance are
not.”).
We view these Supreme Court cases as establishing that
the term “Federal financial assistance” generally refers to
entities receiving federal funds–directly or indirectly–so long as
they are the intended recipients of the federal legislation
providing the assistance. We see no reason why section 844(f)
should be interpreted differently.
The statute presents a second interpretive question:
whether the statute applies to arson of all property owned or
possessed by the organization receiving federal financial
assistance. In the case of an organization whose operations are
substantially or primarily funded by the federal government, we
have little doubt that the statute applies to all of the
organization’s property. Indeed, the legislative history of
section 844(f) seems to confirm the applicability of the statute in
such situations. The House Report explains that the provision was
designed “[t]o permit the Federal Government to more directly
participate in the investigation and prosecution of the recent rash
of attacks on ROTC facilities and other buildings on college
campuses culminating in the tragedy at the University of
Wisconsin.” H.R. Rep. No. 91-1549, as reprinted in 1970
U.S.C.C.A.N. at 4046. The University of Wisconsin incident alluded
to was the August 1970 bombing of the Army Mathematics Research
Center at the University of Wisconsin, an Army-funded think tank.

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See Hearings Before Subcomm. No. 5 of the H. Comm. on the
Judiciary, 91st Cong. 324-25 (1970) (Letter of Hon. Henry C.
Schadeberg, Member of Congress). We need not address here the
scope of the statute in other situations dissimilar from the
present case where a different federal interest might be
implicated. See Sabri v. United States, 541 U.S. 600 (2004)
(construing federal bribery statute to apply to organizations
receiving federal benefits even though bribery did not relate to
federal benefits; Court recognized federal interest in preventing
all bribery of such institutions).
However, we do think it both appropriate and necessary to
determine the scope and constitutionality of the statute in
situations such as in this case, where the federal financial
assistance is limited to the acquisition, renovation, or lease of
a specific property. A question exists as to whether section
844(f) should be limited to the property acquired, renovated, or
leased using federal financial assistance, or whether 844(f)
applies to all property owned or possessed by the organization. We
conclude that, in general, the statute should be limited to arson
of property acquired, renovated, or leased using federal financial
assistance.
First, there is no legislative history suggesting that
Congress intended section 844(f) to cover all property owned,
possessed, or leased by institutions receiving federal financial
assistance designed to enable them to acquire, renovate, or lease

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specific property, and the government has identified no federal
interest that would be served by such an expansive interpretation.
Second, the legislative history suggests that Congress
intended the scope of the statute to be co-extensive with its
authority under the Property Clause, and was primarily concerned
with the authority of the United States “to protect its own
property.” H.R. Rep. No. 91-1549, as reprinted in 1970
U.S.C.C.A.N. at 4046. The House Report on the Organized Crime
Control Act of 1970 stated that Congress “relies for its
constitutional base on the power of the Federal Government to
protect its own property,” and cites two other analogous statutes
involving theft of government property, 18 U.S.C. § 641, and
willful destruction of government property, 18 U.S.C. § 1361. H.R.
Rep. No. 91-1549, as reprinted in 1970 U.S.C.C.A.N. at 4046. No
Property Clause case has been called to our attention suggesting
that Congress has the authority under that clause to regulate
conduct of third parties directed at those who own, possess, or
lease federal property or use federal funds to do so unless that
conduct at least relates to the property, as was the case in Ruddy
v. Rossi. 248 U.S. at 106-07; see also Kleppe v. New Mexico, 426
U.S. 529, (1976) (holding that the protection of wild horses on
public lands was a valid exercise of Congress’s power under the
Property Clause to make rules regarding the use of federal
property). The application of the Necessary and Proper Clause adds
little to the analysis.

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We are also obligated to construe the statute to avoid
constitutional questions that would be presented by a broad
construction. See Jones v. United States, 529 U.S. 848, 857 (2000)
(“[W]here 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.”); Edward J. DeBartolo Corp. V. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575 (1988) (“[E]very
reasonable construction must be resorted to, in order to save a
statute from unconstitutionality.”). The Court’s decision in Jones
is particularly instructive. There, the Court sought to construe
language in 18 U.S.C. § 844(i), which prohibits the use of “fire or
an explosive” to damage or destroy “any . . . property used in
interstate or foreign commerce or in any activity affecting
interstate or foreign commerce.” The Court concluded that while
the statute excluded no particular type of building, a private,
owner-occupied residence was not “used” in interstate commerce
under the statute. Jones, 529 U.S. at 856. The Court declined to
adopt the government’s expansive interpretation of section 844(i),
noting that under such a construction, “hardly a building in the
land would fall outside the federal statute’s domain.” Id. at 857.
Similarly, applying section 844(f) to all property of any
organization “receiving Federal financial assistance” would give
the statute a sweeping scope. In the present economy, a wide
variety of organizations, both private and non-profit, receive some

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We recognize that our construction is contrary to a decision3
by the Tenth Circuit. See United States v. Apodaca, 522 F.2d 568,
571-72 (10th Cir. 1975). However, it does not appear that the
legislative history of the statute or concerns about the
constitutional power of Congress were either raised or discussed in
that case.
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form of federal financial assistance to acquire, renovate, or lease
specific property. Applying the statute to cover all property
owned by such entities would transform a broad swathe of
“traditionally local criminal conduct” into a “matter for federal
enforcement.” Id. at 858. The interpretive canon against
construing statutes to have the effect of significantly altering
the federal-state balance in the prosecution of crime would thus
appear to apply here with full force. See id. at 858 (citing
United States v. Bass, 404 U.S. 336, 349 (1971)). The doctrine of
lenity, requiring criminal statutes to be construed narrowly, also
suggests a narrowing construction. See Rewis v. United States, 401
U.S. 808, 812 (1971).
Thus, in the case of organizations receiving federal
financial assistance related to specific property, we construe
section 844(f) as limited in general to arson of that particular
property. In holding that section 844(f) is generally limited to 3
property owned or possessed using federal financial assistance, we
do not foreclose the possibility that the statute should be
construed to apply in some limited instances to non-federally
funded property where federal interests are implicated, for
example, because the proximity of the federally funded and non-

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federally funded property creates a risk of injury to federal
property from arson as to the non-federal property.
B. Application to Hersom’s Case
Applying the statutory construction we have proposed, we
conclude that § 844(f) is constitutional and that it applies to
Hersom’s conduct in this case.
First, Greely, the owner of the property, received
federal funds through the City of Lewiston, and thus is in fact an
intended recipient of federal financial assistance. The CDBG
program provides annual grants on a formula basis to units of local
government and states in order to further broad community
development objectives. The statute specifies that the “[t]he
primary objective . . . of the community development program of
each grantee under this chapter is the development of viable urban
communities, by providing decent housing and a suitable living
environment and expanding economic opportunities, principally for
persons of low and moderate income.” 42 U.S.C. § 5301(c). It
further requires that “not less than 70 percent of the aggregate of
the Federal assistance . . . shall be used for the support of
activities that benefit persons of low and moderate income.” Id.
Defendant argues that the City of Lewiston, rather than
Greely, was the intended recipient of CDBG funding. Units of state
and local government are certainly intended recipients of the CDBG
program. The money flows directly to local governments: the
statute provides that “[t]he Secretary is authorized to make grants

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to States, units of general local government, and Indian tribes to
carry out activities in accordance with the provisions of this
chapter.” Id. at § 5303. States and units of local governments
are the entities that must develop and submit a comprehensive
planning document and application for funding to HUD. In its
Consolidated Plan, the jurisdiction must outline its projected use
of funds and demonstrate how its expenditures will serve the
enumerated national objectives. See id. at § 5304; 24 C.F.R. §
570.200.
However, the statute also specifically envisions a role
for private entities in achieving the community development
objectives of the statute. Most relevantly, the statute
specifically enumerates certain activities that may be carried out
by for-profit organizations: “Activities assisted under this
chapter may include . . . provision of assistance to private, for-
profit entities, when the assistance is appropriate to carry out an
economic development project . . . .” 42 U.S.C. § 5305(a)(17)
(emphasis added). The statute further authorizes the Secretary to
extend federal loan guarantees to public agencies for various
purposes, including the private economic development activities
enumerated in § 5305(a)(17). 42 U.S.C. § 5308; 24 C.F.R. §
570.700-.711. Thus, the text of the statute demonstrates that
private developers such as Greely engaged in economic development
activities are in fact “intended recipients” of the federal
financial assistance.

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Furthermore, the property in this case was renovated
using federal loan funds. Hersom appears to concede on appeal that
the buildings that were the subject of the arson were renovated
using a $50,000 loan from the City of Lewiston through the HUD
block grant, and, in any event, the Pre-Sentence Investigation
Report ("PSI”) indicates that this is the case. PSI 4. Because
this appeal follows a guilty plea, we draw the relevant facts from
the uncontested portions of the PSI and the transcript of the
sentencing hearing. United States v. Dietz, 950 F.2d 50, 51 (1st
Cir. 1991). Those facts in the PSI lend support to the guilty
plea.
We therefore conclude that the statute was properly
applied in Hersom’s case.
III. Sentencing
We turn to the sentencing issue. Hersom contends that
the court improperly treated him as a career offender for
Sentencing Guidelines purposes because arson of a commercial
building is not a predicate offense. This Court’s recent en banc
decision in United States v. Giggey, 551 F.3d 27, 28-29 (1st Cir.
2008), abrogates the rule established in United States v. Fiore,
983 F.2d 1, 4-5 (1st Cir. 1992), which held that prior conviction
for a burglary of a non-dwelling structure is per se a crime of
violence under the Guidelines. Giggey held that in order to
determine whether a defendant’s prior convictions for non-
residential burglary constituted “crimes of violence,” the district

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court was required to use the “categorical approach,” comparing the
elements of the state crime against the requirement in U.S.S.G. §
4B1.2(a)(2) that the offense involve conduct that “presents a
serious potential risk of physical injury to another.” Giggey, 551
F.3d at 38-40. As the government conceded in its brief, remand is
thus necessary in order to enable the district court to decide
whether Hersom’s second career offender predicate is a “crime of
violence.”
IV. CONCLUSION
For the reasons set forth above, we affirm the judgment
of conviction, vacate the sentence, and remand to the district
court for resentencing.
It is so ordered.
No Costs.

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