Argued and Submitted, San Francisco, California:
February 11, 2014.
As Amended September 29, 2014.
Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:11-cr-00290-LKK-1. Lawrence K. Karlton, Senior District Judge, Presiding.
The panel affirmed a conviction for using a pipe bomb to damage a vehicle and apartment building in violation of 18 U.S.C. § 844(i).
The panel rejected the defendant's contention that there was insufficient evidence that any damage to the apartment building substantially affected interstate commerce, and that the government therefore did not satisfy the Commerce Clause jurisdictional element of § 844(i). The panel concluded that nothing in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), undermined the per se rule in Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985), that damage to a rental apartment building satisfies the jurisdictional provisions of § 844(i).
Timothy E. Warriner, Sacramento, California, for Defendant-Appellant.
Michael D. Anderson (argued) and Phillip A. Talbert, Assistant United States Attorneys, Sacramento, California, for Plaintiff-Appellee.
Before: Richard C. Tallman and Johnnie B. Rawlinson, Circuit Judges, and Marvin J. Garbis, Senior District Judge.[*] Opinion by Judge Rawlinson.
RAWLINSON, Circuit Judge:
Appellant Daniel Garcia (Garcia) challenges his conviction for using a pipe bomb to damage a vehicle and apartment building in violation of 18 U.S.C. § 844(i). Garcia contends that the government failed to present sufficient evidence to satisfy the Commerce Clause jurisdictional requirement of 18 U.S.C. § 844(i), because the government failed to demonstrate that
Garcia's criminal conduct affected interstate commerce. Garcia also maintains that the district court erred in instructing the jury that damage to the rental apartment building and vehicle met the jurisdictional mandates, and that 18 U.S.C. § 844(i) is unconstitutional on its face. We affirm.
In a four-count indictment, Garcia was charged with " maliciously damag[ing] and destroy[ing] and attempt[ing] to damage and destroy, by means of an explosive, a building and vehicle used in interstate commerce, and in an activity affecting interstate commerce" in violation of 18 U.S.C. § 844(i). The indictment alleged that Garcia " knowingly carr[ied] and use[d] a destructive device, to wit, a pipe bomb" in violation of 18 U.S.C. § 924(c)(1)(A).
B. Garcia's Motion To Dismiss The Indictment
Prior to trial, Garcia filed a motion to dismiss the indictment. Garcia asserted that the government was unable to satisfy the Commerce Clause jurisdictional requirements of § 844(i) because there were no allegations that the privately owned vehicle, a Chevrolet Tahoe SUV, was utilized in interstate or foreign commerce by the vehicle's owner. The district court denied Garcia's motion.
C. Garcia's Proffered Interstate Commerce Jury Instruction
During the jury instruction conference, Garcia proffered an interstate commerce instruction providing that:
Used in interstate commerce means that a vehicle or a building is used in an activity substantially affecting interstate or foreign commerce if the vehicle or building is actively used for commercial purposes and the vehicle or building does not merely have a passive, passing, or past connection to interstate or foreign commerce. A vehicle or building may affect interstate commerce if it takes on economic functions unrelated to every day, non-commercial, private use. The fact that the vehicle is manufactured in a different state or is insured by an out-of-state company is insufficient to trigger federal jurisdiction under 844(i) or to fulfill the fourth element of the offense.
The district court rejected Garcia's proffered instruction, and instead instructed the jury that an apartment building " is used in interstate commerce, or in an activity affecting interstate commerce, if it contains rental units and is used as rental property," and that " [a] vehicle is used in interstate commerce if it is ...