United States of America v. Robert A. Soy

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3438
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
R OBERT A. SOY ,
Defendant-Appellant.
No. 04-1218
R OBERT A. SOY ,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA ,
Respondent-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
Nos. 92 CR 42 & 00 C 624—Rudy Lozano, Judge.
____________
On Petition for Rehearing
____________
D ECIDED J ULY 27, 2006
____________
Before POSNER , R IPPLE and W OOD , Circuit Judges.
R IPPLE , Circuit Judge. In his petition for rehearing, Mr. Soy
submits that we should have vacated his conspiracy convic-

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2 Nos. 03-3438 & 04-1218
tion because the jury’s verdict may be based on a constitu-
tionally invalid theory. More specifically, Mr. Soy maintains
that this court’s decision, affirming his conviction for
conspiracy, violates the rule of Stromberg v. California, 283
U.S. 359 (1931), because it allows the jury’s conspiracy
verdict to stand even though the jury may have employed
an unconstitutional theory in reaching that verdict. His
argument proceeds as follows: (1) The bombing set forth in
Count II of the indictment was one of the overt acts (the
fourth to be precise) charged in Count I of the indictment,
the conspiracy to commit arson in violation of 18 U.S.C.
§ 844(i). (2) In United States v. Jones, 526 U.S. 227 (1999), the
Supreme Court determined that the interstate commerce
element of § 844(i) is not satisfied by a home’s receipt of
natural gas from another state; instead, in order to satisfy
that element, the building itself must be used in interstate
commerce. (3) The only evidence that the jury received with
respect to the interstate commerce element was that the gas
flowing to the victim’s house came from outside the state.
(4) Consequently, to the extent that the jury may have rested
Mr. Soy’s conspiracy conviction on overt act 4 of the
indictment, it relied on legally insufficient grounds.
Mr. Soy was convicted under the general conspiracy
statute, 18 U.S.C. § 371. That statute provides, in relevant
part, that, “[i]f two or more persons conspire either to
commit any offense against the United States, . . . and one or
more of such persons do any act to effect the object of the
conspiracy, each shall be fined under this title or imprisoned
not more than five years, or both.” 18 U.S.C. § 371. To prove
a violation of § 371, the Government must establish: (1) an
agreement to commit an offense against the United States;
(2) an overt act in furtherance of the conspiracy; and (3)
knowledge of the conspiratorial purpose. See, e.g., United
States v. James, 923 F.2d 1261, 1266 (7th Cir. 1991). Further-

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Nos. 03-3438 & 04-1218 3
more, “in order to sustain a judgment of conviction on a
charge of conspiracy to violate a federal statute, the Govern-
ment must prove at least the degree of criminal intent
necessary for the substantive offense itself.” United States v.
Feola, 420 U.S. 671, 686 (1975). Therefore, to sustain its
burden of proof in this case, the Government had to prove
that Mr. Soy agreed to violate 18 U.S.C. § 844(i). Finally, the
overt act necessary for the conspiracy conviction need not be
the underlying substantive crime or an element of that
crime. See, e.g., United States v. Lahey, 55 F.3d 1289, 1293 (7th
Cir. 1995) (“Although the government was required to
prove that an overt act was committed in furtherance of the
conspiracy by one of the coconspirators, overt acts do not
have to be substantive crimes themselves.” (internal quota-
tion marks and citations omitted)).
In Mr. Soy’s case, the fourth overt act of Count I of the
indictment charged that “[O]n or about December 23,
1991 . . . Robert A. Soy, did maliciously damage and
destroy, by means of an explosive to wit: a pipe bomb, a
building and other real and personal property located at
1425 Stanton, Hammond, Indiana which property was
used in or affected interstate commerce, which resulted
in the death of Emily Antkowicz.” After Jones, 526 U.S. 227,
whether Ms. Antkowicz’ house “and other real and personal
property” located at that address can be considered to have
been used in or affecting interstate commerce is uncertain.
The Court’s decision in Jones precludes reliance solely on the
building because it was used as a personal residence. As we
noted in our opinion, “[i]t is possible that, if the Govern-
ment established that the meter was NIPSCO’s personal
property and was ‘used in’ interstate commerce, the require-
ments of Jones would have been satisfied.” United States v.
Soy, 413 F.3d 594, 605 n.11 (7th Cir. 2005). However, the
Government points to no place in the record where it

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4 Nos. 03-3438 & 04-1218
presented such evidence, and the jury never specifically
found that the meter in fact was used in interstate com-
merce.
We do not believe, however, that the absence of such
evidence was fatal to the Government’s case on the conspir-
acy charge. We have held that the interstate com-
merce requirement of § 844(i) is “jurisdictional,” not in the
sense “that it affects a court’s subject matter jurisdiction,”
but in the sense that “without that nexus, there can be
no federal crime under the . . . statute.” United States v.
Martin, 147 F.3d 529, 531-32 (7th Cir. 1998). Because the
purpose of this element is simply to confer federal juris-
diction, courts have not required that the Government prove
that the defendant had knowledge that the building, which
was the subject of the arson, was used in an activity affect-
ing interstate commerce in order to violate § 844(i); it is
sufficient that the building falls within that category. United
States v. Muza, 788 F.2d 1309, 1311-12 (8th Cir. 1986); see also
United States v. Salameh, 152 F.3d 88, 154 n.16 (2d Cir. 1998).
In United States v. Pinckney, 85 F.3d 4 (2d Cir. 1996), the
court considered the interstate commerce requirement in the
context of an alleged conspiracy, specifically a conspiracy to
violate 18 U.S.C. § 2322(b). The Second Circuit stated:
One of the elements of the substantive crime of operat-
ing a chop shop is that the vehicle parts enter inter-
state commerce. 18 U.S.C. § 2322(b). And this must
be proven beyond a reasonable doubt. Under United
States v. Rosa, [17 F.3d 1531 (2d Cir. 1994),] if the inter-
state commerce element is merely jurisdictional, and the
government proves that the goods entered interstate
commerce, the conviction for conspiracy will stand
whether or not defendants knew of the interstate nature
of their actions because “knowledge that the goods have

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Nos. 03-3438 & 04-1218 5
traveled interstate . . . is irrelevant to the essential
nature of [the] agreement.” Rosa, 17 F.3d at 1546. If the
interstate commerce element is merely jurisdictional,
and the government fails to prove the goods entered
interstate commerce, the conspiracy is also proven if one
conspirator believed the goods were to enter interstate
commerce. See id. If, on the other hand, the interstate
commerce nexus is a mens rea element of the crime,
proof of conspiracy depends on proof that the conspira-
tors believed vehicle parts were to enter interstate
commerce. See id.
Pinckney, 85 F.3d at 8.
Applying the reasoning of Pinckney to the present case, the
interstate nexus requirement (which, as noted above,
is “jurisdictional”) can be established in one of two ways: (1)
by establishing the bombed building(s) were used in
interstate commerce; or (2) by showing that one of the
conspirators believed that the targeted buildings were used
in interstate commerce.
Here, the interstate nexus is satisfied by the fact that
several of the overt acts of the conspiracy did involve
buildings that were used in interstate commerce. As noted
in our earlier opinion, Mr. Soy was convicted on four
substantive counts of arson, all of which were charged as
overt acts in the conspiracy and all of which satisfied the
interstate commerce requirement. Count six of the indict-
ment, which corresponded to the tenth overt act, charged
Mr. Soy with the bombing of Edo’s Lounge; with respect to
this count, we concluded that, “in light of our determination
that the per se rule of Russell [v. United States, 471 U.S. 858
(1985),] extends to restaurants and bars, we also must reject
Mr. Soy’s alternative claim that the Government failed to
meet its burden of proof that the building housing Edo’s

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6 Nos. 03-3438 & 04-1218
Lounge was used in interstate commerce.” Soy, 413 F.3d at
604. We reached the same conclusion with respect to the
bombing of Salvino’s Restaurant (Count 10 and the tenth
overt act). See id. at 605. Russell’s per se rule also applied to
the bombing of the apartment complexes charged in Counts
14 and 18 (the eleventh and fifteenth overt acts, respec-
tively). See id.
As set forth above, not one but several of the buildings
that were the targets of the conspiracy were buildings
used in interstate commerce, and, therefore, there is no legal
infirmity or factual insufficiency with respect to Mr. Soy’s
conviction for conspiracy.
We have examined all other matters raised in the petition
for rehearing and deem them without merit. Accordingly,
the petition for rehearing is denied.
P ETITION D ENIED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-27-06

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