United States of America v. Douglas Hersom

United States Court of Appeals
For the First Circuit
No. 10-1555
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, Circuit Judge,
Souter, Associate Justice,*
and Boudin, Circuit Judge.
Stuart W. Tisdale, Jr., with whom Tisdale & Davis, PA was on
brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Richard
Murphy, United States Attorney, was on brief, for appellee.
September 22, 2011
The Hon. David H. Souter, Associate Justice (Ret.) of the *
Supreme Court of the United States, sitting by designation.

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SOUTER, Associate Justice. In this, his second appeal,
see United States v. Hersom, 588 F.3d 60 (1st Cir. 2009), Douglas
Hersom assigns error to the district court’s denial of his motion
to withdraw his guilty plea to arson of a building owned by an
organization receiving federal financial assistance, see 18 U.S.C.
§ 844(f). After the prior appeal led to remand for resentencing,
Hersom claimed that the statute was inapplicable, not because the
owner (Greely Capital, LLC) was merely an indirect recipient of
benefits, as argued when he was last in this court, but because all
the redevelopment funds lent to Greely had been disbursed to it, so
that it was no longer “receiving” the financial assistance when he
committed the arson. The government opposed the motion, as it does
here, on grounds of waiver, law of the case, and failure to qualify
to withdraw the plea under Federal Rule of Criminal Procedure 11,
as well as on the merits of the statutory construction argument.
While the district judge had some question about reaching the
merits, he did so and rejected Hersom’s reading of the statute. We
affirm.
There is no doubt that the trial judge would have had
support for finding the issue waived, as distinct from forfeited,
but the record is not unequivocal. When the case was first before
the district court, defense counsel told someone in the court
clerk’s office that Hersom had come to think that Greely’s receipt
of the full amount of the federally funded loan before the fire
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occurred made the statute inapplicable, and at the resentencing
hearing after the first appeal the district court asked counsel
whether he intended to get into that issue. The lawyer explained
that he had discussed the matter with his client after doing some
research and said, “I think that the issue is resolved.”
As for applying the law of the case doctrine, that prior
decision of an issue not raised in an interim appeal is binding in
subsequent proceedings, the district court was uncertain. While
this court had held the statute applicable on the facts, the
argument based on completed receipt of benefits had not been ruled
upon expressly prior to the appeal and was not raised in the appeal
itself.
All such doubts were resolved in favor of reaching the
merits because of what the trial judge saw as a powerful reason for
giving full consideration to the motion to withdraw the guilty plea
under the standard of fairness and justice imposed by Rule 11:
Hersom’s argument that the statute could not be applied after a
completed benefit disbursement was in effect a claim of legal
innocence that, if sound, would be a reason to grant the motion.
See United States v. Abernathy, 83 F.3d 17, 19 (1st Cir. 1996);
United States v. Parrilla-Tirado, 22 F.3d 368, 373 (1st Cir. 1994).
There was no abuse of discretion in proceeding on this basis, see
Parrilla-Tirado, 22 F.3d at 371, and we see no reason to pause
further on the threshold objections before going to the merits of
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the statutory claim beneath the motion to withdraw, which we
consider de novo, being a purely legal matter.
The statutory definition of the crime charged against
Hersom includes destroying “by . . . fire . . . any building . . .
in whole or in part owned or possessed by . . . any institution or
organization receiving Federal financial assistance.” 18 U.S.C.
§ 844(f). Hersom does not now deny that Greely is an
“organization” or that the loan it received to finance the
rehabilitation of the burned building was federal financial
assistance. The only issue is about the applicability of the
present participle “receiving” to Greely, which got the money
before the fire. Nor is there any question about the principles of
statutory construction that should govern the scope of “receiving.”
Hersom invokes the traditional “restraint in assessing
the reach of a federal criminal statute, both out of deference to
the prerogatives of Congress and out of concern that a fair warning
should be given to the world in language that the common world will
understand . . . .” Arthur Andersen LLP v. United States, 544 U.S.
696, 703 (2005) (internal quotation marks and citation omitted).
We thus look to “the common perception,” Jones v. United States,
529 U.S. 848, 856 (2000), evoked by the ordinary meaning of the
words as used “in legislation as in conversation,” id. at 855, that
is, to what Justice Holmes spoke of as “the picture” produced by
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the text in the common mind, McBoyle v. United States, 283 U.S. 25,
27 (1931).1
When statutes apply to transactions outside most people’s
everyday experience, as this one concededly does (the subject being
government loan schemes), the fair warning that criminal liability
presupposes must take account of the special circumstances, lest
Justice Holmes’s “picture” turn out to be an abstraction. So in
this case our judgment about the adequacy of the notice that
Hersom’s act was covered may assume an understanding that federal
financial assistance includes loans, and that a loan recipient is
a party to a transaction that carries enduring advantages as well
as continuing obligations until the loan is repaid (as this one had
not been at the time of the fire).
When this fact of continuing contractual advantage is
borne in mind, it points in two respects to a reading of § 844(f)
as applying to Greely at the time of the arson, neither of which
abuses common language usage. First, unlike an outright grant that
becomes the recipient’s property on receipt, the proceeds of a loan
provide the borrower with the benefit of a property interest that
belongs to the lender, and its advantage to the borrower lies in
permission to make use of the loan throughout the period of its
Hersom also invokes the rule to construe a statute 1
sufficiently narrowly to avoid the risk of unconstitutionality, see
Jones, 529 U.S. at 852, but we do not think this statue sails close
enough to the wind to raise an issue about the scope of federal
legislative jurisdiction.
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term. Its value is a product of time, and every day the borrower
enjoys a benefit that would be missed (or, at least, no longer
rightfully enjoyed) if the loan were (or could be) called for
repayment. It makes sense, then, to describe the borrower as
receiving a benefit in the continuous use of the money throughout
the term of the transaction.2
Second, this reading of “receiving” is confirmed by
consideration of the constitutional authority Congress relied upon
to enact the statute, which authorizes the statutory objective that
is readily understandable by people without law degrees. As we
held before, Congress was acting under the Property Clause, U.S.
Const. art. IV, § 3, cl. 2, the source of legislative power to make
provision for federal property, by criminalizing the arson of a
building belonging to a recipient of federal benefits (when related
to those benefits). Hersom, 588 F.3d at 62-63, 66. Congress meant
to protect a federal interest, not merely duplicate state criminal
statutes, see id. at 63-65, and it is perfectly easy to understand
that the point of protecting the building is to preserve either
formal security for the loan or at least the premises housing
activity likely to generate funds for repayment. Obviously both
the federal interest and the federal object endure throughout the
Indeed even in the case of an individual’s monthly social 2
security benefit, it would not offend common usage to say he is
receiving the benefit of the monthly payment throughout the month
it is meant to cover.
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term of the loan, while the building owner enjoys the benefit of
using the federal funds.
We think anyone apprised of the loan scheme in question
would think it was within the scope of normal usage to say Greely
was receiving a federal benefit from the use of federal funds for
whatever term the borrower enjoyed, and would consequently consider
an arsonist fairly warned that if the building he happened to torch
was related to a current federal loan, he would be guilty of the
federal offense.
Affirmed.
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