United States of America v. Mujera Benjamin Lung’aho

United States Court of Appeals
For the Eighth Circuit
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No. 23-3696
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United States of America
Plaintiff - Appellee
v.
Mujera Benjamin Lung’aho
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: January 17, 2025
Filed: July 18, 2025
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Before GRASZ, STRAS, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
In 2020, Mujera Benjamin Lung’aho threw Molotov cocktails that damaged
or destroyed three police cars. He was indicted for maliciously destroying, by means
of fire, law enforcement vehicles possessed by local police departments receiving
federal financial assistance, 18 U.S.C. § 844(f)(1). Lung’aho moved to dismiss the
indictment, arguing that the statute was unconstitutional as applied to him. The

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district court1 held that the Property Clause did not apply because the police cars
were not federal property and were not bought with federal financial assistance. But
the court denied the motion because the prosecution was constitutional under the
Spending Clause coupled with the Necessary and Proper Clause. We agree.
The parties stipulated to the material facts. The police cars belonged to three
different state or municipal police departments (Arkansas State Police, Little Rock
Police, and North Little Rock Police), and combined there was $86,099.37 of
damage. The Arkansas State Police received approximately $10 million in federal
funding between 2017 and 2020, and their annual budget was more than $123
million in 2020. The Little Rock Police Department received $280,392 between
2017 and 2020, an additional $786,845 in COVID money in 2020, and had an annual
budget of $80 million. And the North Little Rock Police Department accepted
$160,000 between 2017 and 2020, an additional $132,168 in COVID money, and
had a budget of around $24 million in 2020. This works out to be around 2%, 1%,
and 0.7% respectively of the department budgets. No federal money directly paid
for the police cars.
We review the district court’s denial of a motion to dismiss an indictment de
novo. United States v. Williams, 951 F.3d 892, 897 (8th Cir. 2020). Section
844(f)(1) criminalizes “maliciously damag[ing] or destroy[ing], or attempt[ing] to
damage or destroy, by means of fire or an explosive, any . . . vehicle . . . in whole or
in part owned or possessed by . . . any institution or organization receiving Federal
financial assistance.” Lung’aho’s conduct falls within the plain meaning of the
statute, so the only question is whether it is constitutional as applied to him.
“Section 844(f) was promulgated pursuant to Congress’s power under the
Property Clause,” United States v. Hersom, 588 F.3d 60, 62 (1st Cir. 2009) (citing
H.R. Rep. No. 91-1549 (1970), as reprinted in 1970 U.S.C.C.A.N. 4007, 4046), but
1 The Honorable D.P. Marshall Jr., United States District Judge for the Eastern
District of Arkansas.

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the “question of the constitutionality of action taken by Congress does not depend
on recitals of the power which it undertakes to exercise,” Nat’l Fed’n of Indep. Bus.
v. Sebelius, 567 U.S. 519, 570 (2012) (quoting Woods v. Cloyd W. Miller Co., 333
U.S. 138, 144 (1948)).
Under the Spending Clause, Congress has authority “to appropriate federal
moneys to promote the general welfare, Art. I, § 8, cl. 1, and it has corresponding
authority under the Necessary and Proper Clause, Art. I, § 8, cl. 18, to see to it that
taxpayer dollars appropriated under that power are in fact spent for the general
welfare.” Sabri v. United States, 541 U.S. 600, 605 (2004). Sabri upheld a federal
indictment for attempted bribery of a city official because the city received federal
funds. Id. at 602–03. As the Court explained, the bribery statute “addresses the
problem at the sources of bribes, by rational means, to safeguard the integrity of the
state, local, and tribal recipients of federal dollars.” Id. at 605. The same applies
here: preventing the arson of state and local police cars owned by departments
receiving federal funding is a rational way of safeguarding federal dollars. And it
doesn’t matter that the police cars were not purchased with federal funds. “Money
is fungible,” so the dollars spent on the burned cars need not be “traceabl[e]” to
“specific federal payments.” Sabri, 541 U.S. at 605–06.
Lung’aho’s main argument on appeal is that Sabri doesn’t control because the
bribery statute had a “threshold amount” (bribes of $5,000 or more involving
agencies receiving $10,000 or more of federal money, 18 U.S.C. § 666) to ensure a
substantial federal interest. Sabri, 541 U.S. at 606. By contrast, the arson statute
has no minimum dollar amount to trigger federal prosecution. To illustrate his
concern, he argued below that that he could have been charged with violating
§ 844(f)(1) for torching a five-dollar police trash can, and that can’t possibly be
constitutional.
Garbage cans, like decorative plants and doormats, post, at 9, are not police
cars. Those facts could lead to different results. But consider the facts in this case.
Lung’aho “cannot prevail on [his] as-applied challenge without showing that the law

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has in fact been unconstitutionally applied to [him].” Phelps-Roper v. Ricketts, 867
F.3d 883, 896 (8th Cir. 2017) (cleaned up) (quoting McCullen v. Coakley, 573 U.S.
464, 485 n.4 (2014)). It is undisputed that Lung’aho caused over $86,000 in damage
to the three police cars and that the departments each received more than $10,000—
the thresholds that Lung’aho admits were enough in Sabri. See 541 U.S. at 606. All
told, based on the facts of this case we do not think the federal interest is “miniscule,”
post, at 6, but instead “certainly enough,” Sabri, 541 U.S. at 606.
Lung’aho also suggests that arson, unlike bribery, is not “sufficiently related”
to Congress’s spending power because the bribery statute directly implicates anti-
corruption. See United States v. Fitzgerald, 514 F. Supp. 3d 721, 746 (D. Md. 2021).
But “the Necessary and Proper Clause makes clear that the Constitution’s grants of
specific federal legislative authority are accompanied by broad power to enact laws
that are ‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial
exercise,’” United States v. Comstock, 560 U.S. 126, 133–34 (2010) (quoting
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413, 418 (1819)), and criminalizing
the arson of police cars from police departments receiving federal funding is a
“rational means” of ensuring federal funds are used “in the manner Congress
intended,” Sabri, 541 U.S. at 605; Sebelius, 567 U.S. at 576.
Because money is “fungible” and property is not “inherently
interchangeable,” the dissent suggests that the Government must show “a connection
between” the burned police cars and the federal assistance. Post, at 9. We don’t
think so. Even though the cars were not bought with federal money, their destruction
necessarily depleted the resources of the three departments. And because money is
fungible, there is interference with the value of disbursed federal dollars—whether
the federal funds were “drained off” via bribe, used to replace cars burned up by
arson, or used to backfill other funding diverted to replace the cars. See Sabri, 541
U.S. at 606. But see Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S.
205, 220 (2013) (fungibility of money limited when funding conditions “require [an
organization] to pledge allegiance to the Government’s policy”).

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We reject the suggestion that we are improperly extending the reach of federal
power because “arson is a paradigmatic common-law state crime,” Jones v. United
States, 529 U.S. 848, 858 (2000), and we do not risk “nullifying” Jones, post, at 7.
Federal criminal jurisdiction may be extended to “traditional crimes of local
concern.” See United States v. Hari, 67 F.4th 903, 909 (8th Cir. 2023). And Jones
invoked constitutional avoidance to interpret an ambiguous statute, see 529 U.S. at
857–58, but no one suggests that § 844(f)(1) is ambiguous—it clearly applies to
Lung’aho’s conduct. So we are left to apply the clear text of the statute and
authoritative Supreme Court precedent.
But more to the point, Sabri rejected that it was “convert[ing] congressional
authority under the Commerce Clause to a general police power of the sort retained
by the States.” 541 U.S. 607–08 (quoting United States v. Lopez, 514 U.S. 549, 567
(1995)). Under the Spending Clause and the Necessary and Proper Clause,
“Congress was within its prerogative to protect spending objects”: the power to
protect expenditures is “bound up with congressional authority to spend.” Id. at 608.
Because there is no reason to distinguish arson from bribery, and Lung’aho has not
shown that criminalizing the arson of police cars from departments receiving federal
funding “‘has nothing to do with’ the congressional spending power,” id. (quoting
Lopez, 514 U.S. at 561), Sabri controls.
The dissent finally argues that because Lung’aho did “not ‘interfer[e] with the
disbursement of federal funds,’ Congress exceeds its power ‘to ensure that [its
appropriation] goes where it directs.’” Post, at 9 (quoting Barnett v. Short, 129 F.4th
534, 543 (8th Cir. 2025)). Religious Land Use and Institutionalized Persons Act,
the law at issue in Barnett, “impose[s] conditions of federal funding on
nonrecipients.” 129 F.4th at 543. But unlike the law in Sabri or § 844(f)(1),
RLUIPA does not “punish[] those who attempt[] to interfere with the disbursement
of federal funds.” Id. Simply put, RLUIPA is “too dissimilar.” Id.
Our dissenting colleague warns: “Sabri need not be interpreted so broadly.”
Post, at 7. With respect, Sabri is that broad. 541 U.S. at 614 (Thomas, J., concurring

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in judgment) (“[T]he Court’s approach seems to greatly and improperly expand the
reach of Congress’ power under the Necessary and Proper Clause.”). Based on the
facts in this case and bound as we are by Supreme Court precedent, we are compelled
to conclude that that § 844(f)(1) was constitutionally applied to Lung’aho.
The judgment of the district court is affirmed.
GRASZ, Circuit Judge, dissenting.
Fundamental to our federal system is the principle that the Constitution
“withhold[s] from Congress a plenary police power.” United States v. Lopez, 514
U.S. 549, 566 (1995) (citing U.S. Const., art. I, § 8). We have understood this
principle for over two centuries. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 428
(1821). But the majority’s reasoning suggests Congress may simply purchase that
police power through financial assistance — including miniscule assistance
unrelated to the affected property. Under the doctrine of enumerated powers, even
Congress’s power under the Spending and Necessary and Proper Clauses is
restrained. Thus, while Lung’aho’s conduct was subject to severe penalties under
state laws,2 I would conclude application of § 844(f)(1) exceeded Congress’s power
under these facts, and therefore reverse.
“[A]rson is a paradigmatic common-law state crime.” Jones v. United States,
529 U.S. 848, 858 (2000). As a result, important questions related to the balance of
state and federal power enshrined in our Constitution arise when federal arson
statutes turn “traditionally local criminal conduct” into “a matter for federal
enforcement.” Id. (quoting United States v. Bass, 404 U.S. 336, 350 (1971)). In
Jones, the Supreme Court addressed the statutory scope of 18 U.S.C. § 844(i), a
sister provision to the § 844(f)(1) offense under which Lung’aho was charged. See
id. at 852. Section 844(i) criminalizes malicious destruction by fire of any property
used in interstate or foreign commerce or any activity affecting interstate or foreign
2See Ark. Code §§ 5-4-401(a), 5-38-301(a)(1)(A), 5-38-301(b).

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commerce. 18 U.S.C. § 844(i). To avoid the constitutional concerns if § 844(i) were
read to apply to “[p]ractically every building in our cities, towns, and rural areas,”
the Supreme Court held that “the provision covers only property currently used in
commerce or in an activity affecting commerce.” Jones, 529 U.S. at 857, 859. It
was not enough that the property was constructed with supplies that had moved in
interstate commerce or was served by some entity with a trace to interstate
commerce. Id. at 857. Jones cautions that Congress cannot turn every arson into a
federal crime.
Like § 844(i), § 844(f)(1) includes similar expansive language capable of
upending the federal-state balance. Section 844(f)(1) covers arson of “any building,
vehicle, or other personal or real property in whole or in part owned or possessed
by, or leased to, . . . any institution or organization receiving Federal financial
assistance.” 18 U.S.C. § 844(f)(1). Countless institutions and organizations receive
federal financial assistance today. Can Congress declare that burning property
belonging to one of those organizations makes one a federal arsonist subject to five
to twenty years of imprisonment, regardless of whether that property has any
connection to federal assistance?
Jones responds no, but under the majority’s approach, the answer is yes.
Jones cautioned that the federal-state balance does not allow Congress to use the
Commerce Clause “to make virtually every arson in the country a federal offense,”
so Congress could only protect property that was itself tied to commerce, the basis
for the exercise of federal power. Jones, 529 U.S. at 859. Nevertheless, Sabri v.
United States, 541 U.S. 600 (2004), the majority claims, allows Congress to
safeguard federal spending by criminalizing any damage or destruction to any
property of the funding recipient, regardless of the relationship between the exercise
of federal power and the property at issue. Ante, at 3–5. This interpretation risks
nullifying Jones, and Sabri need not be interpreted so broadly, especially in this case
of first impression. Sabri dealt with a bribery statute that prohibited anyone from
corruptly giving anything of value to someone with the intent to influence an agent
of an organization in connection with any business exceeding $5,000 if that

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organization receives over $10,000 in federal benefits in a year.3 See Sabri, 541
U.S. at 603 (citing 18 U.S.C. § 666(a)(2), (b)). The defendant in Sabri brought a
facial challenge, arguing that the statute was wholly unconstitutional because it did
not “require proof of any connection between a bribe or kickback and some federal
money.” Id. at 604. The Supreme Court concluded the Spending and Necessary and
Proper Clauses authorized Congress to ensure “taxpayer dollars appropriated under
that power are in fact spent for the general welfare, and not frittered away in graft or
on projects undermined when funds are siphoned off or corrupt public officers are
derelict about demanding value for dollars.” Id. at 605. The Supreme Court did not
require the bribe to itself involve the funds from the federal benefit because
“[m]oney is fungible, bribed officials are untrustworthy stewards of federal funds,
and corrupt contractors do not deliver dollar-for-dollar value,” so corruption could
still “affect the federal interest” even if not directly traceable to those funds. Id. at
606. In other words, Congress can, consistent with the Constitution, root out
financial corruption in an organization receiving federal benefits to ensure that the
benefits are not squandered because corruption in one area signals corruption that
undermines the federal benefits program.
Arson does not share these characteristics. Bribery of a funding recipient on
one project indicates the recipient or its agents are susceptible to bribes involving
federal money or are otherwise likely to waste it. But Lung’aho’s destruction of
3 This “benefits” element of the bribery statute requires more than mere
“receipt of federal funds” or “participati[on] in a federal assistance program.” See
Fischer v. United States, 529 U.S. 667, 681 (2000). As the Supreme Court
cautioned, if “benefits” included all fraud or bribery of any entity that receives some
federal funds, it “would turn almost every act of fraud or bribery into a federal
offense, upsetting the proper federal balance.” Id. To dispel this concern, the
“benefits” element includes examining “the [federal assistance] program’s structure,
operation, and purpose” and “the conditions under which the organization receives
the federal payments” to see if the alleged fraud or its effect on the recipient
“threaten[s] the program’s integrity.” Id. The Supreme Court in Sabri did not
discuss this aspect of the offense, likely because the defendant brought only a facial
challenge, so the particularities of the benefits program received by the bribed
organization were irrelevant to his arguments. See Sabri, 541 U.S. at 608–09.

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police vehicles says little about the law enforcement entities’ stewardship of federal
dollars. It does not indicate the recipients are wasting taxpayer dollars on
boondoggles or overpaid contractors. Nor does it show the recipients are likely to
fail to protect the items secured by federal funds. Making arson a federal offense as
to any property belonging to a recipient of financial assistance does not protect
federal dollars when those dollars do not pay for the property in question and the
government fails to show that the assistance could be used to purchase similar
property. Money is fungible, but property is not inherently interchangeable. After
all, if federal assistance is given to an organization so it can purchase equipment to
improve its technology, burning its decorative shrubs or doormat does not undermine
that expenditure — the organization’s improved technology is unaffected. The same
is true of Lung’aho’s conduct in the absence of a connection between that property
and the federal assistance. In these circumstances where the defendant’s actions are
not “interfer[ing] with the disbursement of federal funds,” Congress exceeds its
power “to ensure that [its appropriation] goes where it directs.” See Barnett v. Short,
129 F.4th 534, 543 (8th Cir. 2025). It instead is trying to “impose liability on
anybody it wants through Spending Clause legislation without that person’s
consent.” See id. “Sabri simply doesn’t go that far.” See id.
If the majority’s reading of Sabri is correct, what is outside Congress’s power
to police in today’s age of massive federal assistance? Here, we deal with entities
whose federal assistance is a negligible part of their overall budget, and not a cent
of that assistance went to purchase the damaged property.4 Yet the majority
concludes preventing arson of these organizations’ property is a “rational way of
safeguarding federal dollars” simply because those entities receive federal money.
Ante, at 3. If this conduct falls within Congress’s power, it seems there is little or
no property destruction that Congress could not federalize. Arson itself cannot be
the limitation because arson is a “paradigmatic” state matter. See Jones, 529 U.S. at
4 Nor is there evidence that the money was used to purchase other police
vehicles or similar property. Indeed, the government failed to establish specifics on
the actual purpose of the financial assistance received by the victim entities.

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858. And, as another circuit has recognized, “a wide variety of organizations, both
private and non-profit,” as well as the state and local government entities here,
“receive some form of federal financial assistance” to obtain property. United States
v. Hersom, 588 F.3d 60, 67 (1st Cir. 2009). As a result, and contrary to Jones,
“[a]pplying [§ 844(f)] to cover all property owned by such entities would transform
a broad swathe of ‘traditionally local criminal conduct’ into a ‘matter for federal
enforcement.’” See id. (quoting Jones, 529 U.S. at 858).
The Spending and Necessary and Proper Clauses do not uniquely evade these
federalism concerns, particularly when they are not invoked to create a contractual
obligation on the recipient. See Barnett, 129 F.4th at 543; Fischer, 529 U.S. at 681
(discussing the potential for federalism concerns if the federal bribery statute were
interpreted such that “federal funds disbursed under an assistance program will result
in coverage of all recipient fraud”). And contrary to the majority’s suggestion, ante,
at 5, Sabri did not say otherwise because it rejected the charge of federal overreach
based on characteristics of bribery inapplicable to arson. The bribery statute facially
passed muster because Congress can “protect spending objects from the menace of
local administrators on the take.” Sabri, 541 U.S. at 608. Congress’s ability to spend
required it to be able “to keep a watchful eye on expenditures and on the reliability
of those who use public money,” which allowed it to impose liability even when the
specific federal funds were not used because bribery in one area suggests
wastefulness in all aspects of spending, including the ones given by Congress. Id.
at 606, 608. Thus, the federal interest in the benefit recipient’s treatment of its
expenditures extends broadly. But for property, the federal interest applies only to
the property for which Congress expects its funds to be used. If the federal funds
were not used to purchase that property (or replacement property), Congress is not
“protecting spending objects.” Cf. id. at 608. It instead exceeds its enumerated
authority.
Thus, I would not read Sabri to authorize this federalization of almost all
arson. Instead, I would take the Supreme Court at its word when it has consistently
declared that Congress lacks a general police power. E.g., Lopez, 514 U.S. at 566;

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Bond v. United States, 572 U.S. 844, 854 (2014); Cohens, 19 U.S. (6 Wheat.) at 428.
Such instruction means little if we accept the idea that Congress can simply purchase
police power by giving a few dollars to entities that later become arson victims. For
these reasons, I disagree with the majority’s construction of Sabri and would
conclude that § 844(f)(1) cannot constitutionally apply where the property destroyed
is not tied to the federal financial assistance. Lung’aho’s conduct was undoubtedly
wrong. But in our system of enumerated federal powers, it was a local crime that
belonged to Arkansas to punish, not the federal government. I respectfully dissent.
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