United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge.
matter is before the Court on Defendant's motion for a
new trial or a judgment of acquittal. (Dkt. No. 916.) For the
reasons set forth below, the Court denies the motion.
22, 2015, a federal grand jury returned a 33-count indictment
charging Defendant Dylann Roof with multiple counts of 5
• Counts 1-9 allege racially motivated hate crimes
resulting in death, in violation of 18 U.S.C. §
• Counts 10-12 allege racially motivated hate crimes
involving an attempt to kill, in violation of 18 U.S.C.
• Counts 13-21 allege obstruction of religious exercise
resulting in death, in violation of 18 U.S.C. §
• Counts 22-24 allege obstruction of religious exercise
involving an attempt to kill using a weapon, in violation of
18 U.S.C. § 247(a)(2); and
• Counts 25-33 allege use of a firearm to commit murder
during a crime of violence prosecutable in federal court, in
violation of 18 U.S.C, §§ 924(c) and (j).
(Dkt. No. 1.)
moved to dismiss the indictment, and the Court denied
Defendant's motion. (Dkt. Nos. 233, 735.) After a
seven-day trial, the jury returned a verdict of guilty on all
counts. (Dkt. No. 817.) In the sentencing phase, the jury
returned death sentence verdicts on Counts 13-21 and 25-33
(Dkt. No. 871), and the Court imposed life sentences without
the possibility of parole for Counts 1-12 and 22-24 (Dkt. No.
the January 11, 2017 sentencing hearing, the Court orally
granted in part Defendant's motion for an extension of
time to file post-trial motions. Defendant filed a motion for
a new trial or a judgment of acquittal under Rules 29(c) and
33(b)(2) of the Federal Rules of Criminal Procedure on
February 10, 2017. (Dkt. No. 916.) He argues the Government
failed to establish the interstate commerce nexus required by
§ 247(a)(2). Defendant also argues the alleged
violations of §§ 247(a)(2) and 249(a)(1) are not
crimes of violence within the meaning of § 924(c)(3).
Defendant's motion does not challenge his convictions
under § 249(a)(1).
Rule 29(c) Motion for a Judgment of Acquittal
29(c) of the Federal Rules of Criminal Procedure permits a
defendant to move for a judgment of acquittal. The Court must
determine "whether there is substantial evidence (direct
or circumstantial) which, taken in the light most favorable
to the prosecution, would warrant a jury finding that the
defendant was guilty beyond a reasonable doubt."
United States v. MacCloskey, 682 F.2d 468, 473 (4th
Cir. 1982). "The jury's verdict must be accepted if,
after viewing the evidence in the light most favorable to the
government, any rational trier of fact could have found the
elements of the offense beyond a reasonable doubt."
United States v. United Med. & Surgical Supply
Corp., 989 F.2d 1390, 1402 (4th Cir. 1993).
Rule 33 Motion for a New Trial
Rule of Criminal Procedure 33(a) permits a court, upon a
defendant's motion, to "vacate any judgment and
grant a new trial if the interest of justice so
requires." Whether a defendant gets a new trial is left
to the trial court's discretion. United States v.
Smith, 451 F.3d 209, 216-17 (4th Cir. 2006). The Fourth
Circuit has held that a trial court "should exercise its
discretion to grant a new trial sparingly, and that it should
do so only when the evidence weighs heavily against the
verdict." United States v. Perry, 335 F.3d 316,
320 (4th Cir. 2003) (internal quotation marks omitted). Where
the evidence in the record is sufficient to support the
jury's verdict, a Rule 33 motion must be denied.
United States v. Singh, 518 F.3d 236, 250 (4th Cir.
Section 247(a)'s Interstate Commerce Nexus
Commerce Clause delegates to Congress the power "[t]o
regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes." U.S. Const, art. I,
§ 8, cl. 3. The Necessary and Proper Clause authorizes
Congress "[t]o make all Laws which shall be necessary
and proper for carrying into Execution the foregoing Powers,
" which include the Commerce Clause. U.S. Const, art. I,
§ 8, cl. 18. The Supreme Court has "identified
three broad categories of activity that Congress may regulate
under its commerce power"; (1) the use and channels of
interstate commerce; (2) the instrumentalities of interstate
commerce; and (3) those activities having substantial
relations to interstate commerce. United States v.
Lopez, 514 U.S. 549, 558-59(1995).
was convicted of multiple violations of the Church Arson
Prevention Act of 1996, Pub. L. 104-155 § 3, 110 Stat.
1392, 1392-93 (1996) (codified at 28 U.S.C. sec. 247(a)) (the
"Church Arson Act"). Section 247 provides, in
(a) Whoever, in any of the circumstances referred to in
subsection (b) of this section-
. . . .
(2) intentionally obstructs, by force or threat of force, any
person in the enjoyment of that person's free exercise of
religious beliefs, or attempts to do so;
shall be punished as provided in subsection (d).
(b) The circumstances referred to in subsection (a) are that
the offense is in or affects interstate or foreign commerce.
argues that because his offense was noneconomic, because he
did not travel in interstate commerce to commit it, and
because he used items purchased in South Carolina, the
Government failed to establish that the offense-that is, the
intentional, forcible obstruction of the free exercise of
religion-was in or affected interstate commerce. (Dkt. No.
916 at 2-5.) This argument repeats Defendant's pretrial
as-applied constitutional challenge to § 247(a)(2).
(See Dkt. No. 735 at 25 ("According to
Defendant, a noneconomic crime in South Carolina, committed
by a South Carolina resident, and using items purchased in
South Carolina, lacks an interstate commerce nexus .... The
alleged nexuses with interstate commerce are sufficient to
survive a motion to dismiss.").)
trial, the Government presented evidence that Defendant
attacked parishioners at Mother Emanuel during a
Wednesday-night Bible study. Defendant used the internet to
conduct research and identify Mother Emanuel as his target, a
telephone to contact the church directly, and GPS navigation
satellites to navigate interstate highways on his multiple
trips to and from the vicinity of the church. He used a
Russia-based service to host the online manifesto he posted
shortly before the attack at Mother Emanuel, which explained
his motives. In preparation for the attack, Defendant
purchased hollow-point bullets, magazines, and a firearm that
had all travelled in interstate commerce. Defendant entered
Mother Emanuel carrying the firearm and loaded magazines in a
tactical pouch that had travelled in interstate commerce.
Inside the church, Defendant used the items he procured to
kill nine parishioners. Defendant presented no evidence to
counter this evidence, and a rational fact-finder viewing the
evidence in the light most favorable to the Government could
conclude that the Government established an interstate
commerce nexus. See, e.g., United States v. Morgan,
748 F.3d 1024, 1034 (10th Cir. 2014) (holding that a GPS
device is an instrumentality of interstate commerce);
United States v. MacEwan, 445 F.3d 237, 245 (3d Cir,
2006) ("[T]he Internet is an instrumentality and channel
of interstate commerce."); United States v.
Corum, 362 F.3d 489, 493 (8th Cir. 2004) ("It is
well-established that telephones, even when used intrastate,
are instrumentalities of interstate commerce.");
United States v. Gallimore, 247 F.3d 134, 138 (4th
Cir. 2001) ("[T]he Government may establish the
requisite interstate commerce nexus by showing that a firearm
was manufactured outside the state where the defendant
possessed it"); United States v. Mason, 993
F.Supp.2d 1308, 1317 (D. Or. 2014) (rejecting a pretrial
as-applied challenge to a § 249 claim because the
Government alleged that the weapon used in the attack
traveled in interstate commerce).
argues that the proper test is whether the offense was in
interstate commerce, not whether the items used to commit the
offense were in interstate commerce. (Dkt. No. 916 at 3.) The
Court finds that argument unpersuasive. Congress has plenary
authority to regulate use of the channels of interstate
commerce and to regulate the use of things in interstate
commerce. United States v. Williams, 342 F.3d 350,
354 (4th Cir. 2003) ("Under the Commerce Clause,
Congress has plenary authority to regulate (1) the use of the
channels of interstate commerce, (2) the instrumentalities of
interstate commerce, or persons or things in interstate
commerce, even though the threat may come only from
intrastate activities . . . ." (internal quotation marks
omitted)). That means Congress may prohibit use of the
channels of interstate commerce, like the internet, or use of
things in interstate commerce, like an imported Austrian
pistol, for criminal purposes like mass murder. As the Court
previously held, "Congress has authority to ... prohibit
use of the interstate highway system, national
telecommunications networks, or the interstate market in
firearms and ammunition to attack churches." (Dkt. No.
735 at 21.)
Violations of § 247 and § 249 as crimes of violence
under § 924(c)
jury found Defendant guilty of nine counts of using a firearm
during and in relation to a "crime of violence"
prosecutable in federal court, in violation of 18 U.S.C.
§§ 924(c)(3) and 9240). A "crime of
violence" under 18 U.S.C. § 924(c)(3) is defined by
the below language:
For purposes of this subsection the term "crime of
violence" means an offense that is a ...