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The lawyer for a Satan-worshipping church arsonist whose convictions were reinstated this week by a federal appeals court said that if the ruling stands, “there’s not a single crime that can’t be prosecuted in federal court.” Federal public defender Paul S. Kish said he “almost certainly” will ask the U.S. Supreme Court to overturn the ruling.What could help Kish, whose client is self-described “Luciferian” Jay Scott Ballinger, is the high court’s recent trend in limiting Congress’ constitutional powers to regulate interstate commerce. Ballinger’s case is largely academic. He is already serving a 42-year sentence in Indiana for other church arsons, and he faces state prosecution in Banks County for the death of a firefighter in one of the blazes he set in Georgia. But the decision by the full 11th U.S. Circuit Court of Appeals is an important twist in the long-running debate over the relative powers of the federal government over police matters that normally are left to the states. Justice Clarence Thomas, for example, has argued that the high court should abandon its 70-year-old precedent on the commerce clause because it gives the federal government too much power. Locally, the Ballinger ruling also could suggest how the court will view a pending case in which a Brunswick doctor is challenging his conviction on federal murder-for-hire charges. At issue in that case is whether federal jurisdiction is proper just because a call the defendant made from a pay phone in Georgia to the cell phone of a federal agent posing as a hit man, also in Georgia, was routed through a switching station in Florida. Ballinger’s case turned on the 11th Circuit’s interpretation of high court cases from 1995 and 2000, respectively, that struck down federal laws banning the possession of guns near schools and allowing sexual assault victims to sue their abusers in federal court. The decisions declared that neither gun possession nor violence against women had a substantial enough effect on interstate commerce to justify congressional involvement in what are normally matters for state governments. The majority in Monday’s 10-3 ruling of the 11th Circuit declared that the way Ballinger traveled to set fires to churches in Georgia properly led prosecutors to bring charges under a federal law that protects religious property. The key, according to majority author Judge Stanley Marcus, was Ballinger’s use of “channels and instrumentalities of commerce” — specifically driving a car along interstate highways to get to the churches. The 1995 decision striking down the gun ban, U.S. v. Lopez, 514 U.S. 549, stated that Congress could prohibit activity dealing with the instrumentalities or channels of interstate commerce or activity that had a substantial effect on interstate commerce. MAJORITY ACCUSED OF OVERREACHING The dissents of Judges Gerald B. Tjoflat and Stanley F. Birch Jr. and Senior Judge James C. Hill chastised the majority for overreaching in the use of the commerce clause, however. Tjoflat in October authored a decision throwing out a child pornography conviction because he found the defendant’s crossing state lines wth a computer disk that later would hold the prohibited images did not sufficiently affect interstate commerce to trigger federal laws. In Ballinger’s case, Tjoflat asked whether the federal law would apply if Ballinger had waited weeks, months or years after arriving in Georgia before setting the fires. “Since there is no basis in the text of the statute itself for such a rule, it — like the court’s interstate travel jurisdictional hook — would have to be created out of whole cloth,” wrote Tjoflat. Hill and Birch formed the majority in 2002 in a three-judge panel that threw out Ballinger’s convictions on the grounds that his actions were not sufficiently related to interstate commerce to trigger the federal law. But in their dissents this week, they extended their arguments to suggest the law itself was an unconstitutional straying from important principles of “federalism,” or the constitutional balance of power between the federal government and the states. Under the majority’s theory, Hill wrote, “I cannot think of any local activity that Congress could not regulate, nor any crime that Congress could not federalize under such an expansive interpretation of the commerce power.” U.S. v. Ballinger, Nos. 01-14872 and 01-15080 (11th Cir. Jan. 10, 2005). Christopher A. Wray, the assistant attorney general in charge of the Department of Justice’s criminal division, praised the 11th Circuit ruling as helping “achieve justice for slain firefighter Loy Williams and his wounded colleagues.” Wray worked on the case, which started in 1998, as an Assistant U.S. Attorney in Atlanta, and he argued the case before the 11th Circuit in October. Amy L. Weil, an appellate attorney in the Atlanta U.S. Attorney’s Office, noted that Ballinger “gives the government comfort” that the courts are giving careful consideration to federal jurisdiction over criminal activity. EFFECT ON MURDER-FOR-HIRE CASE It’s unclear how Ballinger will affect the pending murder-for-hire case, U.S. v. Drury, No. 02-12924. It is before the full 11th Circuit. The convictions of Carl M. Drury Jr. were affirmed in 2003 by a three-judge panel that included Marcus, Judge Rosemary Barkett and a visiting senior judge, Arthur L. Alarcon. But it’s noteworthy that Marcus, who focused on Ballinger’s use of “channels and instrumentalities of commerce,” wrote separately in Drury to point out that “the purely intrastate use of an instrumentality of interstate commerce is sufficient to confer jurisdiction” under the federal law. Drury’s lawyer, James K. Jenkins, said that while Ballinger was obviously “a major case” on interstate commerce, it was much different than his client’s case. Unlike Ballinger, Jenkins said, there was no interstate travel by any of the participants — just the bouncing of a signal across state lines. The different facts, he added, “may very well compel a different result.”

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