NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. ALEXANDER SAKHANSKIY,

Defendant

- Appellant. No. 16

- 10060
D.C. No. 2:13

- cr - 00160

- MCE

- 1

MEMORANDUM *

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. LARISA SAKHANSKIY,

Defendant

- Appellant. No. 16

- 10061
D.C. No. 2:13

- cr - 00160

- MCE

- 2

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding Argued and Submitted March 14, 2018 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

MAY 10 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 16

- 10060

Before: BERZON and BEA, Circuit Judges, and BERG, ** District Judge.
In these consolidated appeals, Alexander and Larisa Sakhanskiy (husband
and wi fe) appeal their convictions un der 18 U.S.C. § 844(i) (federal arson) for their role in a fire that burned their house down in Antelope, California

. The Sakhanskiys argue that their conduct did not meet the statute’s interstate c ommerce element and the district court ’s instructions , as well as its answer to a jury question
on this element , were in error. They also argue that the district court erred in
allowin g their former insur ance attorney to testify at trial that he used the U .S. Mail to send a letter on their behalf to the insurance company ’s attorney

. For the reasons set forth below, we AFFIRM

. 1. The Sakhanskiys first cha llenge the jury’s finding that their home was “[a] building ... used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” 18 U.S.C. § 844(i). T hey contend that the evidence at trial failed to prove the interstate commerce nexus element of § 844(i ) beyond a reasonable doubt. In reviewing a claim of insufficient evi dence , we consider whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99

** The Honorable Terrence Berg, United States District Judge for the Eastern District of Michigan, sitting by designation.3 16

- 10060

S

. Ct. 2781, 61 L.Ed.2d 560 (1979). At trial, t wo witnesses testified that Mr. Sakhanskiy ran a “ handy

- man ” business out of his home, in addition to working as an employee of a plumbing company. Th e government also presented evidence that Sakhanskiy placed advertising for the “Alexander’s Handyman” business,
obtained several years of licenses related to the business, maintained a business
bank account at a large multinational bank (Bank of America) , and stored numerous expensive construction tools on the pr operty of his residence (several of which were manufactured by such m ultinational, inter state vendors as Crafts man, Dewalt, Hitachi, and Honda)

. T h is evidence was suffi cient to permit a rational jury to find the interstate commerce element was met

. A rat ional jury hearing such evidence could conclude beyond a reasonable doubt that the Sakhanskiy residence “served as a ho me office or the locus of any commercial undertaking .” Jones v. United States , 529 U.S. 848, 856 , 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). T hus,
we conclude that t his challenge is not well

- taken.
2. The Sakhanskiys next contend that the district court erred by (1) failing
to instruct the jury that a conviction on the arson charge requires a finding that “the
fire substantially affected interstate commerce , ” and (2) responding to a written question from the jury during deliberations concerning the definition of “interstate
commerce.” T his objection was not presented to the district court, however, so our
review is for plain error. See United States v. Del Toro

- Barboza , 673 F.3d 1136,4 16

- 10060

1146 (9th Cir. 2012). The district court’s arson jury instructions: ( 1) tracked the language of § 844 (i) nearly verbatim ; and (2) drew upon a slightly altered phrase
from the Supreme Court’s opinion in Jones . The district court defined “interstate
commerce” by instructing the jury that “[a] building is used in inter state commerce or in any activity affecting interstate commerce if it is used for a commercial purpose.” In Jones , the Supreme Court concluded that a residence was not “used
in interstate

. . . commerce ” in part because there was no allegation that it “ served
as a ho me office or the locus of any commercial undertaking .” Jones , 529 U.S. at
856. The district court’s instruction here was not materially different from the language in Jones and did not constitute plain error. See United States v. Serang , 156 F.3d 910, 914 n. 3 (9th Cir. 1998) (holding in relation to § 844(i) that the appellant’s argument “that the ... jury instructions were insufficient because they did not contain the word ‘substantial’ are without merit”). Moreover, t he district
court’s subsequent reference back to the instruction, in response to the jury’s written question during deliberations about the defini tion of “interstate commerce,”
was not an abuse of discretion because there was no error in the jury instruction in the first place

. 3. Finally, the Sakhanskiys contend that the district court erred by allowing their former insurance attorney, Jerry Chong, to testify about his use of the U.S. Mail to send a letter containing Defendants’ itemized loss statement to Farm ers5 16

- 10060

Insurance’s attorney. This evidence was offered by the Government to establish an
element of mail fraud (Count Three)

. The attorney

- client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice. See Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). “The claim of privilege must be made and sustained on a question

- by

- question or document

- by

- document basis; a blanket claim of privilege is unacceptable. The sc ope of the privilege should be strictly
confined within the narrowest possible limits. ” United States v. C hristensen , 828 F.3d 763, 803 (9th Cir. 2015) (internal quotation omitted). Chong testified only
that : (1) he was an attor ney, (2) he recognized both the letter and his signature on his letterhead , and (3) he mailed the letter by U.S. Mai l. None of these questions touched upon a confidential communication be tween Attorney Chong and his clients that was made for the purpose of obtaining legal advice.
AFFIRMED.