United States Court of Appeals

for the Fifth Circuit

No. 20-40611

United States of America, 

Plaintiff—Appellee,

versus

Jonathan Matthew Torres, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 1:18-CR-38-1

Before Owen, Chief Judge, Smith, and Graves, Circuit Judges.

James E. Graves, Jr., Circuit Judge:

Mr. Jonathan Torres detonated a bomb outside a church’s 

administrative building. He was convicted under 18 U.S.C. § 844(i), which

requires that the building damaged by fire or explosion be used in or influence

interstate commerce. The district court concluded that the church’s 

administrative building met the statute’s affecting-interstate-commerce 

requirement because it housed the offices that coordinated the rental of the 

church’s facilities to outside parties and the church’s tuition-based childcare 

programs. We agree with the district court and affirm.

United States Court of Appeals

Fifth Circuit

FILED

August 10, 2021

Lyle W. Cayce

Clerk

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No. 20-40611

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I.

In April 2018, officers for the Police Department of Beaumont, Texas,

found a bomb that had been mailed to a local Starbucks. The bomb, made 

with Tannerite, a Tomcat-brand mousetrap, zip ties, string, screws, and 

nails, never detonated because it lacked a firing pin. A note with peel-andstick letters accompanied the bomb and was signed “JH.” 

The next day, “J Hancock” sent a postcard to police asking if they 

“wanted another Austin[?],” which was a reference to bombs detonated 

around Austin, Texas, a month earlier. About a week later, a bomb went off 

at St. Stephen’s Episcopal Church in Beaumont. 

The blast damaged the church’s administrative building. At the scene, 

law enforcement found pieces of a Tomcat-brand mousetrap, fragments of a 

postal service box, string, nails, screws, and Tannerite. The next day, police 

received another card signed “JH.” This time the card read “Would you like 

to play a game?” and referenced the comic book series V for Vendetta. Police

received two other similar notes signed “JH.”

Officers executed a search warrant on Jonathan Torres’s residence 

and discovered a comic book postcard set missing the exact postcards that 

the police had received as well as a Tomcat-brand mousetrap, adjustable zip 

ties, postal service boxes, nails, screws, and unmixed Tannerite. Torres had 

also enshrined a framed photo of the Boston Bomber above his bed. Torres 

was arrested and charged with possession of an unregistered destructive 

device (26 U.S.C. § 5861(d)), mailing a threatening communication (18 

U.S.C. § 876(c)), and using an explosive to cause property damage (18 U.S.C. 

§ 844(i)). 

Torres moved pre-trial to dismiss the § 844(i) count on CommerceClause grounds, arguing that the church did not conduct business activities 

affecting interstate commerce. The district court held a hearing where the 

government produced evidence that led the court to deny the motion. The 

church’s administrative building was the center of its business operations. 

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For example, the church ran its afterschool, nursery, and summer childcare 

programs, for which it charged tuition, out of the building and conducted all 

of the administrative work that allows it to rent out its facilities to outside 

organizations there.

The case proceeded to a bench trial where the parties stipulated to the 

inclusion of evidence obtained at the evidentiary hearings. The district court 

found Torres guilty of violating 18 U.S.C. § 844(i). Torres appealed. 

II.

As an initial matter, the government assumes that Torres is 

challenging the sufficiency of his conviction on the statute’s use-incommerce element, though he describes his argument as a challenge to the 

jurisdiction of the district court to decide the case. The government’s 

framing is correct. As courts have explained, “the interstate commerce 

element of § 844(i) implicates the power of Congress to regulate the conduct 

at issue, not the jurisdiction of the court to hear a particular case.” United

States v. Carr, 271 F.3d 172, 178 (4th Cir. 2001). A claim of insufficient 

connection to interstate commerce is a challenge to one of the elements of 

the government’s case and is considered a claim about the sufficiency of the 

evidence. United States v. Riddle, 249 F.3d 529, 536 (6th Cir. 2001); United 

States v. Beck, 250 F.3d 1163, 1165 (8th Cir. 2001); United States v. Martin, 

147 F.3d 529, 531-32 (7th Cir. 1998).

We review the interpretation of a criminal statute and a challenge to 

the sufficiency of the evidence de novo. United States v. Brown, 727 F.3d 329, 

335 (5th Cir. 2013). Although sufficiency review is labeled de novo, this is 

something of a misnomer because the court’s review is “‘highly deferential 

to the verdict.’” United States v. Ollison, 555 F.3d 152, 160 (5th Cir. 2009) 

(quoting United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002)). We must 

therefore uphold a conviction if “after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the 

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essential elements of the crime beyond a reasonable doubt.” Jackson v. 

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). 

III.

Congress has the power to regulate “activities having a substantial 

relation to interstate commerce . . . .” United States v. Lopez, 514 U.S. 549, 

558–59 (1995). Based on that power, it passed 18 U.S.C. § 844(i), which 

applies to anyone who “maliciously damages or destroys, or attempts to 

damage or destroy, by means of fire or an explosive, any building . . . used in 

interstate or foreign commerce or in any activity affecting interstate or 

foreign commerce.” 

Torres argues that the administrative building he bombed was used 

only in spiritual and charitable activities and not used in interstate commerce 

or in any activity substantially affecting interstate commerce. Torres is 

correct in that a church does not generally function in a manner that places it 

in any significant relationship with interstate commerce. United States v. 

Lamont, 330 F.3d 1249, 1257–58 (9th Cir. 2003); United States v. Rea, 

300 F.3d 952, 960–62 (8th Cir. 2002). 

For example, in United States v. Johnson, this court concluded that the 

church’s membership in an organization that sent and spent funds out of 

state and its purchasing of insurance from an out-of-state provider were 

insufficient to show that its building was used in a way that affected interstate 

commerce. 194 F.3d 657, 662 (5th Cir. 1999), cert. granted, judgment 

vacated, 530 U.S. 1201 (2000); United States v. Johnson, 246 F.3d 749, 752

(5th Cir. 2001) (reaching same result as 194 F.3d 657).

Other circuits have found similar conduct insufficient. For example, 

the Eighth Circuit has found that a church’s annex did not affect interstate 

commerce because no one who met in it traveled from out of state, it was not 

part of any market for tutoring or childcare, no financial transactions 

occurred in it, and donations were processed elsewhere. Rea, 300 F.3d at 962.

And the Ninth Circuit has found that a church was not engaged in interstate 

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commerce because the only evidence introduced was the church’s 

membership in a national religiousinstitution and that it purchased insurance 

policies from an out-of-state provider, purchased out-of-state goods for its 

own consumption, had out-of-state members, and distributed a publication 

interstate. Lamont, 330 F.3d at 1255-59. So fleeting, negligible, and passive 

connections to interstate commerce such as having out-of-state members, 

being a member of a national organization, or purchasing out-of-state goods 

will not suffice.

But as this court’s analysis in Johnson implicitly acknowledges, and as 

other circuits have recognized, a church building can be used for commercial 

purposes and thus fall within § 844(i)’s ambit. See Johnson, 246 F.3d at 752. 

Doing so, however, requires the presence of more substantial and active 

commercial involvement than the activities mentioned above. For example, 

the Supreme Court found in Russell v. United States, 471 U.S. 858 (1985), that 

the rental of real estate affects commerce. Id. at 862. So a church’s renting 

out its facilities could suffice.

Additionally, the Fourth and Tenth Circuits have concluded that 

“housing a daycare center whose function is to provide child care services in 

exchange for payment singlehandedly transforms a place of worship into a 

building that is actively employed for commercial purposes.” United States v. 

Gillespie, 452 F.3d 1183, 1188 (10th Cir. 2006) (citing United States v. Terry, 

257 F.3d 366, 371 (4th Cir.2001)). See also United States v. Doggart, 

947 F.3d 879, 885 (6th Cir. 2020) (reaching similar conclusion). Further, in 

an unpublished decision, this court held that a funeral home’s purchasing of 

caskets that were manufactured out of state satisfied the interstate commerce 

element of § 844(i). United States v. Caldwell, 120 F.3d 266, 1997 WL 

420240, *4 (5th Cir. 1997).

We have similar commercial activities present here. The church rents 

its facilities to vendors and to individuals for receptions, parties, townhalls, 

cotillion, dances, and other nonreligious gatherings. The fees from these 

rentals more than cover the cost of maintenance and upkeep, and the 

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administrative building houses all the business activities related to the

church’s rental operation.

The church also runs child care programs for which it charges tuition. 

The business and financial aspects of these programs, which include

receiving and processing tuition payments, hiring and paying staff, and 

purchasing supplies, all take place in the administrative building. Moreover, 

the church receives cremated remains from deceased in-state and out-ofstate parishioners and purchases urns from an out-of-state supplier. The 

administrative building serves as the business office for these funeral services

and processes all the related paperwork and payments.

Because the church uses the building to rent its facilities, operate its 

child care programs, and process the paperwork related to funeral services, 

“[t]his is not a case where the government relies only on passive activities, 

such as the purchase of utility services or insurance from an out-of-state 

provider, to demonstrate the building’s use in and effect on interstate 

commerce. The church’s interstate connections [are] direct, regular and 

substantial.” United States v. Rayborn, 312 F.3d 229, 234 (6th Cir. 2002).

Consequently, we AFFIRM. 

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