United States v. Daniel Garcia

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10189
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00290-LKK-1

DANIEL RICHARD GARCIA,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding

Argued and Submitted
February 11, 2014—San Francisco, California

Filed September 18, 2014

Before: Richard C. Tallman and Johnnie B. Rawlinson,
Circuit Judges, and Marvin J. Garbis, Senior District
Judge.*

Opinion by Judge Rawlinson

*
The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
2 UNITED STATES V. GARCIA

SUMMARY**

Criminal Law

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 (2000), undermined the per se rule in Russell v. United
States, 471 U.S. 858 (1985), that damage to a rental
apartment building satisfies the jurisdictional provisions of
§ 844(i).

COUNSEL

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.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. GARCIA 3

OPINION

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.

I. BACKGROUND

A. Indictment

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).1

1
The other counts alleged in the indictment are not at issue on appeal.
4 UNITED STATES V. GARCIA

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.
 UNITED STATES V. GARCIA 5

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 transported from the state where it was manufactured
into another state.”

D. Trial Testimony and Verdict

At trial, Jantina Reed (Reed) testified that she, her
boyfriend, Kenneth Clark (Clark), and two children resided
in Garcia’s house for approximately two and a half months.
Reed eventually moved from Garcia’s home because of
Garcia’s unusual behavior. According to Reed, Garcia would
“run around naked” and “stand in front of [her] doorway and
breathe hard . . .” Reed and her family moved to an
apartment complex in Fairfield, California, and did not
inform Garcia of their new address. However, Garcia came
to their apartment complex on two occasions in an attempt to
contact Reed and her family. During one incident, Reed
called the police, and Garcia was arrested.

Reed related that she had an altercation with Garcia when
she had a vehicle towed from his residence. As the vehicle
was being towed, Garcia threw several items on Reed’s car
and threatened, “tick, tick, boom, I’m going to blow this up
to pieces.” Garcia also allegedly told Reed, “you know I
have the means to do it, and if I can’t get it, I can go online
and get it. . . .” Reed did not hear from Garcia after the
incident.

On May 26, 2011, Reed fell asleep at approximately
11:30 or 11:45 p.m. Reed subsequently “heard a giant bang
6 UNITED STATES V. GARCIA

noise” and “there was fire all in their window.” Reed
grabbed her children and ran outside, where she saw flames
coming from her Chevy Tahoe SUV, which Reed had
borrowed from her mother.

Clark testified that he heard “a little noise like tink, tink,
and then boom” before the apartment’s window was engulfed
in flames. Clark went outside and extinguished the flames
around the vehicle with a fire extinguisher.

Officer Christopher Grimm of the City of Fairfield Police
Department responded to a police dispatch “just after 1:00
a.m. on May 27, 2011” to an apartment complex. When he
arrived, Officer Grimm noticed a blue Chevy Tahoe with
“what appeared to be a steel galvanized pipe below it and
several blue propane canisters around it.” Officer Grimm
“collected . . . pieces of cardboard around the vehicle,
approximately 20 feet or so in a kind of circular
circumference around the vehicle, along with several blue
propane canisters, the galvanized pipe and cap, and several
pieces of duct tape and other materials that were found in the
area.”

Officer Grimm also measured the time and distance
between the site of the explosion and a 24 Hour Fitness gym.
According to Officer Grimm, it took “[a]pproximately five
minutes and two seconds” at 2:45 a.m. to drive the 2.2 miles
from the gym to the site of the explosion.

Detective William Shaffer of the City of Fairfield Police
Department investigated the components of the explosive
device. Detective Shaffer testified that the device was
attached to five Worthington brand propane cylinders – a
commonly available type of propane canister. Detective
 UNITED STATES V. GARCIA 7

Shaffer related that the device was “a 2-inch by 12-inch piece
of galvanized steel pipe . . . with Mueller brand end caps on
both ends.” Detective Shaffer believed that the device
utilized smokeless or black powder, but he was unable to
recover any materials indicating how the device was
detonated. Detective Shaffer observed that the end cap had
a drill hole that may have served as “an ignition source into
the interior of the pipe.” Detective Shaffer did not recover
any timing devices or fuses.

Detective Shaffer also found damage from the explosion
to the nearby apartment building. According to Detective
Shaffer, there were impact marks approximately two to three
feet from the ground in the stucco wall near the children’s
bedroom. Detective Shaffer opined that the impact marks
were created by metal fragments from the pipe bomb or from
the propane cylinders.

Detective Shaffer observed that the pieces from a
cardboard box contained a model number. Detective Shaffer
determined that the cardboard box served as the container for
the pipe bomb and that the model number was for a “3,000
watt power inverter.”

Detective Shaffer also participated in the search of
Garcia’s residence. During the search, the officers found a
receipt for an AIMS 3,000 watt power inverter; a pipe bomb
wrapped in a sheet in the garage; and a set of gopher gassers
with fuses similar to the one on the pipe bomb. According to
Detective Shaffer, the pipe bomb found in Garcia’s garage
was similar to the one used in the apartment complex
explosion because both bombs were “constructed out of a
length of galvanized steel pipe, both of them had cast metal
end caps on each end, both of them had paper towel or some
8 UNITED STATES V. GARCIA

type of a paper wadding, both of them had gunpowder as a
filler or combustible material inside.”

Matthew Rainsberg (Rainsberg), a forensic chemist for
the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(ATF), determined that the two pipe bombs contained similar
smokeless gunpowder, and that the fuse on the pipe bomb
found in Garcia’s garage was visually and physically similar
to the fuses on the gopher gassers. Although Rainsberg could
not conclusively determine if the fuses were the same, he
opined that the fuses were “visually and physically similar,
and . . . contain[ed] the similar fuse core powder.”

Tania Kapila, an ATF fingerprint specialist, testified that
Garcia’s latent fingerprints and palm print were found on the
gopher gasser control devices.

Robert Krause (Krause), a friend of Garcia’s, testified that
he drove Garcia to an apartment complex where Garcia
identified a Chevy Tahoe as belonging to a friend. According
to Krause, Garcia complained that he had problems with
roommates who had taken “quite a few of his possessions.”
Garcia indicated that the roommates were “a mother and
father and child . . .” Krause related that, a few weeks after
driving Garcia to the apartment complex, Garcia showed
Krause a pipe bomb that Garcia stored in an ice chest in his
garage. Garcia did not inform Krause what he intended to do
with the pipe bomb.

Leonard Duprez, a General Motors district manager for
after sales, testified that, based on the vehicle identification
number, the SUV damaged in the explosion was
manufactured in Jamesville, Wisconsin.
 UNITED STATES V. GARCIA 9

Maricela Avila, a property manager, testified that the
apartment complex in which the explosion occurred
advertised apartment rentals online and that some of the
residents who signed lease agreements came from out of
state.

Sean Nichols (Nichols), the vice-president of sales for
Aims Power, testified that the cardboard box from the site of
the explosion resembled the outside box that Aims Power
utilized for shipping power inverters. According to Nichols,
Garcia purchased the only 3,000 watt power inverter that
Aims Power shipped to Fairfield, California. Nichols
confirmed that the product number on the cardboard box from
the explosion corresponded to the part number associated
with Garcia’s order.

Dan Gagnon (Gagnon), the regional loss prevention
manager for 24 Hour Fitness, reviewed Garcia’s membership
records for May 26–27, 2011. According to Gagnon, Garcia
checked into the 24 Hour Fitness on May 26, 2011, at
11:01:06 p.m. and checked in again at 12:51:12 a.m. on May
27, 2011. Gagnon testified that the fitness center did not
utilize a system reflecting when its members leave the
facility.

Shalimar Ramirez (Ramirez), the service manager for 24
Hour Fitness, provided Garcia’s check-in records pursuant to
a subpoena. In June, 2011, Ramirez also met with an
investigator from the Solano County Public Defender’s
Office and reviewed video surveillance of Garcia’s 11:00
p.m. check-in. The video did not reflect that Garcia left the
fitness center between 11:00 p.m. and 12:00 a.m.
10 UNITED STATES V. GARCIA

Frank Huntington (Huntington), a private investigator
appointed to assist Garcia, testified that he measured the
duration of two routes from the 24 Hour Fitness to the
apartment complex where the explosion occurred.
Huntington estimated that one route took him
“[a]pproximately nine minutes and two seconds” at 11:45
a.m. during “[n]ormal daytime traffic . . .” The second route
took Huntington “approximately eight minutes and fifty . . .
seconds” at 1:50 p.m. during “normal daytime traffic.”

Huntington also tested the length of time needed for a
four-inch gopher gasser fuse to burn. Huntington estimated
that the fuses took from 12.6 seconds to 13.4 seconds to burn.

Garcia testified that, on May 27, 2011, he drove his
roommate’s car to the 24 Hour Fitness and checked in at
12:51 a.m. According to Garcia, he left the 24 Hour Fitness
at approximately 2:00 a.m. and “went directly home, had a
post-workout meal, got prepared to go to sleep, [and] made
sure [his] dog was fed . . .” Garcia estimated that it took him
approximately five to ten minutes to drive from the fitness
center to his home.

Garcia stated that, on May 26, 2011, he checked into the
fitness center at approximately 11:00 p.m. According to
Garcia, he lacked the energy to exercise and he left the fitness
center “approximately 15 minutes later.” He went home;
consumed “a power meal”; went to a restaurant for more
food; returned home to “[l]et the meal digest”; watched
television; took his dog for a walk; and then returned to the
fitness center. Garcia related that he left his home at 12:30
a.m. and arrived at the fitness center after purchasing energy
drinks at a nearby store.
 UNITED STATES V. GARCIA 11

Garcia denied driving to the apartment complex that
evening or possessing a pipe bomb. According to Garcia, he
did not know who constructed the pipe bomb found in his
garage and he used the gopher gassers for a rodent problem.
Garcia acknowledged that he purchased the Aims power
inverter and that he had an extensive background as an
electrician.

Garcia filed a motion for judgment of acquittal pursuant
to Federal Rule of Criminal Procedure 29, which the district
court denied. The jury found Garcia guilty of malicious use
of explosive materials in violation of 18 U.S.C. § 844(I). On
the verdict form, the jury indicated its finding that the
apartment building and the vehicle “were used in interstate
commerce or in an activity affecting interstate commerce[.]”

The district court sentenced Garcia to 420 months’
imprisonment and 60 months of supervised release. Garcia
filed a timely notice of appeal.

II. STANDARDS OF REVIEW

“We review de novo [Garcia’s] challenge to the
sufficiency of the evidence, including questions of statutory
interpretation.” United States v. Wright, 625 F.3d 583, 590
(9th Cir. 2010) (citations omitted).

“This court reviews the constitutionality of a statute de
novo.” Chamness v. Bowen, 722 F.3d 1110, 1116 (9th Cir.
2013) (citation omitted).

“We review the language and formulation of a jury
instruction for an abuse of discretion. However, when jury
instructions are challenged as misstatements of law, we
12 UNITED STATES V. GARCIA

review them de novo.” United States v. Cortes, 757 F.3d 850,
857 (9th Cir. 2014), as amended (citations, alteration, and
internal quotation marks omitted).

III. DISCUSSION

Relying on United States v. Lopez, 514 U.S. 549 (1995),
and United States v. Morrison, 529 U.S. 598 (2000), Garcia
asserts that damage to the apartment complex did not satisfy
the Commerce Clause jurisdictional element of 18 U.S.C.
§ 844(i) because there was insufficient evidence that any
damage to the apartment building substantially affected
interstate commerce. We disagree, and conclude that the
Commerce Clause jurisdictional element for a conviction
pursuant to 18 U.S.C. § 844(i) was satisfied as discussed in
Russell v. United States, 471 U.S. 858 (1985), and United
States v. Gomez, 87 F.3d 1093 (9th Cir. 1996).

In Russell, the Supreme Court considered “whether
18 U.S.C. § 844(i) applies to a two-unit apartment building
that is used as rental property.” Russell, 471 U.S. at 858. The
Supreme Court observed that “reference [in 18 U.S.C.
§ 844(i)] to any building used in any activity affecting
interstate or foreign commerce expresses an intent by
Congress to exercise its full power under the Commerce
Clause.” Id. at 859 (alterations, footnote reference, and
internal quotation marks omitted). The Supreme Court held:

By its terms . . . the statute only applies to
property that is used in an activity that affects
commerce. The rental of real estate is
unquestionably such an activity. We need not
rely on the connection between the market for
residential units and the interstate movement
 UNITED STATES V. GARCIA 13

of people, to recognize that the local rental of
an apartment unit is merely an element of a
much broader commercial market in rental
properties. The congressional power to
regulate the class of activities that constitute
the rental market for real estate includes the
power to regulate individual activity within
that class.

Id. at 862 (footnote references and internal quotation marks
omitted).

In Gomez, we consulted Russell to resolve the defendant’s
challenge to his conviction for arson. According to Gomez,
the prosecution failed to establish that the burned building
substantially affected interstate commerce, as required for a
conviction under 18 U.S.C. § 844(i). See Gomez, 87 F.3d at
1094. Although there was no testimony at trial as to any
specific interstate commerce connection, the burned building
was a six-unit apartment complex. See id. Gomez
maintained that the Supreme Court’s decision in Lopez
“reinterpreted the Court’s commerce clause jurisprudence,
and thereby undermined Russell’s per se rule that all rental
property affects commerce sufficiently enough to warrant
federal jurisdiction under section 844(i). . . .” Id.

In rejecting Gomez’s argument premised on Lopez, we
observed that in drafting § 844(i), Congress sought to reach
“those arsons that damage or destroy property that had been
used in interstate or foreign commerce or in any activity
affecting interstate or foreign commerce.” Id. at 1095
(citation and internal quotation marks omitted). We
interpreted the plain language of the statute as treating the
interstate commerce aspect of the crime separately from the
14 UNITED STATES V. GARCIA

crime of arson, with the interstate aspect of the crime being
totally dependent “on what the property had been used for (or
whether the property was moving in interstate
commerce). . . .” Id. at 1096. From that premise, we
formulated the “proper inquiry” as whether application of
§ 844(i) to the burning of the six-unit apartment complex
“regulates conduct that is commercial or economic in nature.”
Id. Citing Russell, we held that “an apartment building
currently in use in the rental market is used in an activity
affecting interstate commerce. . . .” Id. (citations omitted).
We explained that “[a]lthough one apartment building may
have no more than a de minimis effect on interstate
commerce, the local rental of an apartment unit is merely an
element of a much broader commercial market in rental
properties.” Id. (citation omitted). However, when
aggregated, the commercial market in rental properties
“undeniably has a substantial effect on interstate commerce.”
Id. Therefore, applying § 844(i) to the aggregated
commercial market in rental properties “regulates conduct
that is within Congress’s commerce power.” Id. We
concluded that the jurisdictional requirement of § 844(i)
could be met by a showing that the damaged building was
being used as a rental property. Such use “per se
substantially affects interstate commerce. . . .” Id. In sum,
we answered the “proper inquiry” by ruling that application
of § 844(i) to the arson of the six-unit apartment complex
regulated conduct that was commercial or economic in
nature, and thereby within the reach of Congress’s Commerce
Clause powers. Id.

Garcia contends that Gomez and Russell are no longer
binding precedent because those decisions were undermined
by the Supreme Court in Morrison. In Morrison, the
Supreme Court held that Congress exceeded its constitutional
 UNITED STATES V. GARCIA 15

authority in passing the Violence Against Women Act
because “[g]ender-motivated crimes of violence are not, in
any sense of the phrase, economic activity. . .” 529 U.S. at
613. However, we have consistently distinguished
Morrison’s holding as limited to non-economic activity. See
Voggenthaler v. Maryland Square LLC, 724 F.3d 1050, 1060
(9th Cir. 2013), as amended (“The Supreme Court’s decisions
in Lopez and Morrison concerning non-economic activity are
not relevant here, for the Court’s holding in both depended
upon the conclusion that the activities sought to be regulated
were not commercial activities.”) (citations omitted); United
States v. McCalla, 545 F.3d 750, 754 (9th Cir. 2008)
(distinguishing Morrison and Lopez because “the statutes in
question had no connection to commerce or economic
enterprise”) (citation omitted); United States v. Latu,
479 F.3d 1153, 1156 (9th Cir. 2007) (holding that “[u]nlike
the statutes at issue in Lopez and Morrison, [18 U.S.C.]
§ 922(g) contains a jurisdictional element, specifically
requiring that [the defendant’s] possession be in or affecting
commerce. The presence of the jurisdictional element
satisfies the Commerce Clause concerns articulated in
Lopez. . . .”) (citation and internal quotation marks omitted);
United States v. Clark, 435 F.3d 1100, 1115 (9th Cir. 2006)
(holding that “[t]he essential economic character of the
commercial sex acts regulated by [18 U.S.C.] § 2423(c)
stands in contrast to the non-economic activities regulated by
the statutes at issue in Lopez and Morrison”) (citations
omitted).

In contrast to the statute invalidated in Morrison, § 844(i)
possesses the requisite jurisdictional element missing in
Morrison, as it specifically requires that the defendant
damage or destroy “any building, vehicle, or other real or
personal property used in interstate or foreign commerce or
16 UNITED STATES V. GARCIA

in any activity affecting interstate or foreign commerce . . .”
18 U.S.C. § 844(i). As the Supreme Court explained in
Russell, “[t]he congressional power to regulate the class of
activities that constitute the rental market for real estate
includes the power to regulate individual activity within that
class.” 471 U.S. at 862 (footnote reference omitted).
Considering our precedent distinguishing Morrison and
considering Russell’s holding that § 844(i) was validly
enacted pursuant to Congress’s Commerce Clause power, we
reject Garcia’s facial and as-applied challenges to the statute.
See Russell, 471 U.S. at 859 (“The reference to any building
used in any activity affecting interstate or foreign commerce
expresses an intent by Congress to exercise its full power
under the Commerce Clause.”) (alterations, footnote
reference, and internal quotation marks omitted); see also
Gomez, 87 F.3d at 1096 (“According to the plain language of
the statute, the interstate commerce aspect of the crime is
distinct from the arson-it depends solely on what the property
had been used for (or whether the property was moving in
interstate commerce). . . .”).2

Garcia’s assertion that Morrison undermined Russell’s
analysis premised on the aggregate effect of a defendant’s
criminal conduct on interstate commerce is unavailing. The
Second Circuit’s opinion in United States v. Logan, 419 F.3d
172 (2d Cir. 2005) is instructive on this point. In Logan, the
Second Circuit reviewed an arson conviction stemming from

2
Russell’s holding that 18 U.S.C. § 844(i) was constitutional under the
facts of that case completely undermines Garcia’s facial challenge. See
United States v. Peeples, 630 F.3d 1136, 1138 (9th Cir. 2010) (“A facial
challenge to a legislative Act is, of course, the most difficult challenge to
mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.”) (citation
omitted).
 UNITED STATES V. GARCIA 17

the burning of a rented fraternity house on a university
campus. The defendant was convicted of violating 18 U.S.C.
§ 844(n), “which criminalizes conspiracy to commit arson on
property that is used in interstate commerce or in any activity
affecting interstate commerce. . . .” Id. at 179. The Second
Circuit initially observed that the Supreme Court cited
Russell with approval in Jones v. United States, 529 U.S. 848
(2000), a case decided post-Morrison. See Logan, 419 F.3d
at 180.3 The Second Circuit pointed out that the Supreme
Court distinguished the owner-occupied residence at issue in
Jones from the rental property at issue in Russell. See id.
The Second Circuit also noted that the Supreme Court
recently reaffirmed in Gonzales v. Raich, 545 U.S. 1 (2005),
Congress’s power to regulate purely local activity if that local
activity is part of an economic chain of activities substantially
affecting interstate commerce. See id. The Second Circuit
emphasized that this was the same rationale used in Russell
to uphold “federal regulation of local properties involved in
the nationwide class of activities that constitute the rental
market for real estate.” Id. (citation and internal quotation
marks omitted). Moreover, the Second Circuit concluded that
“even if we had reason to believe that Russell’s holding is
questionable in light of Morrison and Lopez, it has not been
expressly overruled by the Supreme Court. Courts of

3
In Jones, the Supreme Court considered “whether arson of an
owner-occupied private residence falls within § 844(i)’s compass” and
held that “an owner-occupied residence not used for any commercial
purpose does not qualify as property used in commerce or
commerce-affecting activity; arson of such a dwelling, therefore, is not
subject to federal prosecution under § 844(i). . . .” 529 U.S. at 850–51
(internal quotation marks omitted). In support of its holding, the Supreme
Court observed that Russell involved rented real estate, whereas in Jones
“the owner used the property as his home, the center of his family life. He
did not use the residence in any trade or business.” Id. at 856.
18 UNITED STATES V. GARCIA

Appeals are therefore obligated to follow Russell until the
Supreme Court itself sees fit to reconsider that decision. . . .”
Id.

Although the Second Circuit addressed the conspiracy
subsection of the statute in Logan, its reasoning is
nevertheless instructive because the conspiracy subsection
incorporates the other offenses defined in § 844(i). See
18 U.S.C. § 844(n) (punishing “a person who conspires to
commit any offense defined in this chapter”). Based on our
precedent distinguishing Morrison and Lopez, we also agree
with the Second Circuit that those cases did not undermine
Russell’s holding that damage to a rental apartment building
satisfies the jurisdictional requirements of 18 U.S.C. § 844(i).
Finally, we have expressed a similar reluctance to abandon
Supreme Court precedent on the premise that a subsequent
case has effected an implicit overruling of earlier Supreme
Court precedent. See Lacano Inv., LLC v. Balash, No. 13-
35854, – F.3d –, 2014 WL 4236461, at *5 (9th Cir. Aug. 28,
2014) (expressing that “we must follow [a Supreme Court
opinion] which directly controls, leaving to the Supreme
Court the prerogative of overruling its own decisions”)
(citation and alteration omitted).

Applying Russell and Gomez, we conclude that there was
sufficient evidence to satisfy “Russell’s per se rule that all
rental property affects commerce sufficiently enough to
warrant federal jurisdiction under section 844(i). . . .”4

4
Although there is a serious question as to whether the government
presented sufficient evidence that the Chevrolet Tahoe SUV was used in
interstate commerce, see United States v. Geiger, 263 F.3d 1034, 1037
(9th Cir. 2001) (holding that “the ‘used in’ qualification is most sensibly
read to mean active employment for commercial purposes, and not merely
 UNITED STATES V. GARCIA 19

Gomez, 87 F.3d at 1094. The government presented evidence
that the apartments were leased; the apartment building was
advertised on the internet; and many of its residents were
from out-of-state. The government also presented evidence
that the apartment building was damaged by Garcia’s use of
an explosive device. Thus, the government satisfied the
jurisdictional provisions of 18 U.S.C. § 844(i), and the district
court properly denied Garcia’s motion for a judgment of
acquittal.

IV. CONCLUSION

We conclude that nothing in Morrison undermined
Russell’s per se rule that damage to a rental apartment
building satisfies the jurisdictional provisions of 18 U.S.C.
§ 844(i). Morrison did not overrule Russell or Gomez in any
way, and we are required to apply this binding precedent in
affirming Garcia’s convictions. The government presented
sufficient evidence that Garcia’s use of an explosive device

a passive, passing, or past connection to commerce”) (citation, alteration,
and internal quotation marks omitted), we need not reach this issue.
According to the verdict form, the jury determined that both the apartment
building and the vehicle were “used in interstate commerce or in an
activity affecting interstate commerce[.]” We affirm Garcia’s conviction
based on Russell’s per se rule that damage to a rented apartment building
satisfies 18 U.S.C. § 844(i)’s jurisdictional requirement irrespective of the
jury’s finding concerning the vehicle. We also do not address Garcia’s
challenge to the district court’s jury instruction concerning the vehicle
because the district court properly 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.”
20 UNITED STATES V. GARCIA

damaged an apartment building that was used in interstate
commerce.

AFFIRMED.