NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERMAINE WRIGHT,

Defendant - Appellant.

No. 22-50223

D.C. No.

5:17-cr-00229-JGB-01

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Jesus G. Bernal, District Judge, Presiding

Submitted September 11, 2024**

Pasadena, California

Before: IKUTA, FRIEDLAND, and LEE, Circuit Judges.

Jermaine Wright appeals his conviction for attempted arson of a building 

affecting interstate commerce, 18 U.S.C. §844(i). We have jurisdiction under 28 

U.S.C. § 1291 and affirm. 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

SEP 16 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 22-50223

Wright decided to burn down his restaurant, Fat Boyz Grill, to collect on its 

$300,000 insurance policy and solicited an electrician to help him. But Wright was 

in fact talking to an undercover FBI agent. On the day of the planned arson, the FBI 

executed a search warrant at Fat Boyz Grill, interviewed Wright, and photographed 

packaged food products and equipment inside the restaurant. Wright contends that 

the district court abused its discretion by (1) giving a jury instruction that 

impermissibly invaded the province of the jury, and (2) admitting hearsay portions 

of photographed labels of items found inside his restaurant. We disagree.

1. Jury Instruction 18 was proper. The district court informed the jury in 

Instruction 17 that, to convict Wright, it had to find that: (1) he intended to damage 

or destroy real property, (2) the real property was used in interstate or foreign 

commerce or was used in an activity affecting interstate commerce, (3) he acted 

maliciously, and (4) he took a substantial step towards committing the crime. 

Relevant here, jury instruction 18 explained what it means for property to be used in 

or affect interstate commerce: 

A building is “used in interstate commerce or in an activity 

affecting interstate commerce” if it contains business or residential 

rental units and is used as a rental property.

A functioning restaurant is commercial property; and as a 

commercial enterprise, it has a substantial effect on interstate 

commerce.

All business property has a substantial effect on interstate 

commerce.
3 22-50223

Wright contends Instruction 18 invaded the province of the jury on an 

essential element of the arson charge. We review jury instructions for abuse of 

discretion. See United States v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en 

banc). We review jury instructions holistically to determine “whether the 

instructions as a whole are misleading or inadequate to guide the jury’s 

deliberation.” United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010)

(quotation marks omitted).

We reject Wright’s challenge because Instruction 18 merely stated the 

applicable law. Instruction 18 derives from binding Supreme Court and Ninth 

Circuit case law holding that rental properties, restaurants, and business properties 

per se have substantial effects on interstate commerce.1 The jury still had to answer

the factual question of whether the property Wright intended to burn down qualified 

as a functioning restaurant or otherwise qualified as a building “used in interstate 

commerce or in an activity affecting interstate commerce” as defined in Instruction 

18. Instruction 18 correctly relegated all predicate factual determinations to the jury, 

1 See Russell v. United States, 471 U.S. 858, 862 (1985) (holding that 18 U.S.C. 

§ 844(i) “only applies to property that is ‘used’ in an ‘activity’ that affects 

commerce,” and that “[t]he rental of real estate is unquestionably such an activity”);

United States v. Garcia, 768 F.3d 822, 828–31 (9th Cir. 2014) (applying Russell’s 

per se rule that all rental property affects interstate commerce); United States v. 

Serang, 156 F.3d 910, 913–14 (9th Cir. 1998) (holding that a restaurant, as a 

commercial enterprise, per se substantially affects interstate commerce).
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which heard extensive evidence that the property was used in or affected interstate 

commerce.

2. The district court did not err in admitting photographed labels on the food 

products and equipment found in the restaurant. Wright argues that the district court 

violated the hearsay rule when it admitted the photographed labels showing where 

the items were produced, distributed, or manufactured. When reviewing a trial 

court’s admission of evidence over objection, we first “determine de novo whether 

the trial court identified the correct legal rule to apply to the relief requested.” United 

States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). If so, evidentiary 

rulings are reviewed for an abuse of discretion and upheld “unless they are illogical, 

implausible, or without support in inferences that may be drawn from the facts in the 

record.” United States v. Gadson, 763 F.3d 1189, 1199 (9th Cir. 2014) (quotation 

marks omitted). 

Wright challenges the district court’s reliance on the mechanical trace theory 

to admit the photographs, but even if the court erred in admitting the photographed 

labels, any error was harmless. The government established it was “more probable 

than not that the error did not materially affect the verdict.” United States v. Bailey, 

696 F.3d 794, 803 (9th Cir. 2012) (quotation marks omitted). The government 

introduced the photographs as one piece of evidence to satisfy 18 U.S.C. § 844(i)’s 
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interstate nexus element but introduced ample other interstate nexus evidence. The 

admission of the photographs was at most a harmless error.

AFFIRMED.