* United States District Judge for the Southern District of Texas, sitting by designation. Revised July 10, 2001

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-50323

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDW ARD JIMENEZ, also known as Big Eddie;

PAUL SANTIVANEZ,

Defendants-Appellants.

Appeals from the United States District Court

for the W estern District of Texas

June 29, 2001

Before EMILIO M. GARZA and PARKER, Circuit Judges, and ELLISON, District Judge. *

KEITH P. ELLISON, District Judge:

Appellants Edward Jimenez and Paul Santivanez were convicted of arson causing1 During the previous month, police had responded to a drive-by shooting from a

Camaro at Jimenez’s residence.

2 In August 1993, Jimenez threw a Molotov cocktail into the residence of Jason

Hernandez. Jimenez was convicted in state court, in August 1995, of the Hernandez

firebombing.

2 death, firearms violations, and conspiracy. They appeal their convictions and life

sentences. Both appellants argue that, as applied to them, the federal arson statute is

unconstitutional. They also challenge several of the trial court’s evidentiary rulings, its jury

instructions, and its refusal to dismiss t he indictm ent for allegedly prejudicial pre-indictment

delay. Finally, Jimenez challenges his prosecution as violating a prior grant of immunity,

and the district court’s refusal to depart downward based on the fact that Jimenez was a

minor at the time of the offenses. For the reasons stated below, we affirm.

I

The testimony at trial established that on the evening of September 7, 1993, Edward

“Big Eddie” Jimenez, Paul Santivanez, Brian Mahan, Heriberto “Little Eddie” Hernandez,

and Richard Cortez gathered in Cortez’s garage. W ith the exception of Little Eddie, all

were members of the Klan street gang led by Cortez. Jimenez and Santivanez discussed

retaliating against Jeremy Cruz, a member of the rival Klik street gang, for Cruz’s alleged

involvement in a recent drive-by shooting. 1

Santivanez to ld the others that he knew where Cruz lived, and that Cruz drove a

yellow Camaro. Jimenez added that he knew how to make Molotov cocktails, and had

recently firebombed the house of Klik member Jason Hernandez. 2 Using supplies

pu rchased by Santivanez, Jimenez made two Molotov cocktails using empty malt liquor3

bottles, flammable liquid, detergent, and cloth knotted into wicks.

Early the next m orning, Santivanez drove the others to Cruz’s house at 2414

Townbreeze, in San Antonio. The yellow Camaro and a pickup truck belonging to the Cruz

family were located out front. Mahan and Little Eddie remained in the car, but the others

walked toward the house. Jimenez and Santivanez each carried a Molotov cocktail and

a cigarette lighter, while Cortez carried a gun. Cortez fired several shots into the house.

Jimenez threw his Molotov cocktail into the master bedroom, where it exploded and started

a fire. Santivanez also threw his Molotov cocktail into the master bedroom. Although the

w ick fell out and burned in the front yard, the remainder of the device added f uel to the

bedroom fire. Mahan, now behind the steering wheel, waited for Jimenez, Santivanez, and

Cortez to return, and then quickly drove off.

Richard Cruz, Jeremy’s father, was set on fire by the Moloto v cocktails. His wife

Pauline put out the flames on Richard. Richard then rescued his twelve-year-old daughter

Karen, and both fled outside. Richard sat in a wading pool, while Karen tried to ease her

father’s burns by splashing him with water. Although Jeremy, Karen, and Pauline were not

injured, Richard died a week later as a result of his burns.

From 1981 until the time of the fire, Richard ran the family business, A-1 Plastering,

from a one-room office adjacent to the garage. This office was the company’s business

address. Business records and smaller supplies were located in the office. Other

supplies, like cement, were stored in the garage. In the first nine m onths of 1993, A-1

Plastering employed six full-time workers and generated gross receipts of $170,000. The

business used two pickup trucks and one van, each manufactured in Missouri. Further,4

A-1 Plastering’s regularly used supplies and equipment were all manufactured outside of

Texas.

No one was arrested immediately for the firebombing of the Cruz residence. During

an interview with San Antonio police officers in November 1993, Jimenez implicated

himself in the arson of the Hernandez home, but denied involvement in the Cruz

firebombing. In 1994, agents of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”)

asked to speak to Jimenez, who was then represented by Mr. Richard Langlois. Langlois

and the United States Attorney’s office reached an agreement by which Jim enez would

debrief with the government. According to a transcript of the September 1994 interview,

Jimenez ag ain denied involvement in the Cruz arson and reiterated his statements that

others were responsibl e. Following the interview, Jimenez took and failed a polygraph

examination.

Richard Cortez died in January 1995. Through March 1995, when a new case

agent took charge of the investi gation, the government was still unable to make a case

against any of the defendants. Jimenez was convicted on August 7, 1995 on the state

charges resulting from the Hernandez firebombing. In late 1995 and 1996, agents

interviewed Mahan and Little Eddie, who told the story of how Jimenez, Santivanez, and

Cortez approached the home, how the first two threw Molotov cocktails, and how Cortez

shot into the home. The government convened a federal grand jury, which heard

testimony in 1997. After receiving confirmation in early 1998 that the Department of

Justice would not au t horize the death penalty in this case, the government indicted

Jimenez and Santivanez in August 1998.5

In a superseding indictment dated May 12, 1999, the government added the deathc ausing element under 18 U.S.C. § 844(i). Before this grand jury, however, ATF Agent

Gena Alvarez inadvertently made a brief reference to facts disclosed in Jimenez’s 1994

debriefing. In January 2000, shortly before trial, the government dismissed the

superseding indictment. A grand jury, which did not hear the reference to Jimenez’s

debrie fing, returned a second superseding indictment against both Jimenez and

Santivanez.

Shortly before trial, the gove rnment disclosed to the defendants information

concerning the mental health history of Little Eddie, one of its chief witnesses. The district

court granted the government’s in limine motion preventing defense counsel from referring

to Little Eddie’s mental state in opening arguments, and from cross-examining him on his

mental health without first receiving permission from the bench. Defense counsel crossexamined Mahan and Little Eddie. They were also permitted to recall Little Eddie during

their cases-in-chief, but chose not to call him again.

The jury convicted both defendants on all counts: (1) arson causing death, in

violation of 18 U.S.C. § 844(i); (2) use of a destructive device during an arson, in violation

of 18 U.S.C. § 924(c); (3) possession of an unregistered destructive device, in violation of

26 U.S.C. § 58 61(d); and (4) conspiracy to commit the other offenses, in violation of 18

U.S.C. § 371. Jimenez and Santivanez were sentenced to life imprisonment, plus a

mandatory sentence of thirty years, to run consecutively.

II

We review de novo the constitutionality of a crimi n al statute as applied to a3 Jones v. United States , 529 U.S. 848, 856, 120 S. Ct. 1904, 1910 (2000).

4 514 U.S. 549, 115 S. Ct. 1624 (1995).

5 529 U.S. 598, 120 S. Ct. 1740 (2000).

6 defendant. United States v. Kallestad

, 236 F.3d 225, 227 (5 th Cir. 2000). The Supreme

Court recently held that it is not a federal crime to throw a Molotov cocktail into a private

home, if the home is not “the locus of any commercial undertaking.” 3 Although it may seem

inequitable to alter the result simply because the home has a one-room office, the starting

point for the analysis is the statutory requirement that the property destroyed be “used in

... any activity affecting interst ate or foreign commerce.” Despite the Supreme Court

decisions in United States v. Lopez

, 4 and United States v. Morrison

, 5 the arson of a

building

– even a private hom e – containing an active business will often satisfy the

constitutional requirement that the arson “substantially affect[ ] interstate commerce.”

Lopez , 514 U.S. at 559, 115 S. Ct. at 1630.

A

18 U.S.C. § 844(i) states, in relevant part:

Whoe ver maliciously damages or destroys, or attempts to damage or

destroy, by means of fire or an explosive, any building, vehicle, or other real

or personal property used in interstate or foreign commerce or in any activity

affecting interstate or foreign commerce shall be imprisoned for not less than

5 years and not more than 20 years ... and if death results to any person,

including any public safety officer performing duties as a direct or proximate

result of con duct prohibited by this subsection, shall also be subject to

imprisonment for any term of years, o r to the death penalty or to life

imprisonment.

18 U.S.C. § 844(i) (1994 Supp. II) (emphasis added). The government may establish the

requisite federal jurisdictional nexus by proving that the property was either (1) used in,7

or (2) used in an activity affecting, interstate commerce.

The Supreme Court’s decisions in Lopez and Morrison illustrate that many federal

prosecutions under the latter category

– effect on interstate commerce

– may be suspect.

I n Lopez

, the Court struck down as unconstitutional the Gun-Free School Zones Act of

1990, 18 U.S.C. § 922(q) (1994). The Court identified three broad categories of activity

that Congress may regulate pursuant to its Commerce Clause powers: (1) the channels

of interstate commerce, (2) instrumentalities of interstate commerce and things and

persons in interstate commerce, and (3) activities having a substantial relation to interstate

commerce. L opez

, 514 U.S. at 558-59, 115 S. Ct. at 1629-30. Regarding this third

category, the Court held that, to be within Congress’ Commerce Clause powers, “the

regulated activity [must] ‘substantially affect[ ]’ interstate commerce.” I d. at 559, 115 S. Ct.

at 1630. Rejecting the argument that § 922(q) regulated commercial activity, L opez stated

that the statute could not be sustained by considering the activity’s aggregate effect on

interstate commerce. Id. at 561, 115 S. Ct. at 1631.

Five years later, in Morrison

, the Supreme Court struck down a port ion of the

Violence Against W om en Act, 42 U.S.C. § 13981 (1994). Revisiting L opez ’s third category

of Commerce Clause regulation

– activities substantially affecting interstate commerce

–

the Morrison Court identified four factors informing the constitutional analysis: (1) whether

the statute regulate s commercial activity, (2) whether the statute contains an express

jurisdictional element, (3) whether the statute or its legislative hi story contains express

congressional findings regarding the activity’s effect on interstate commerce, and (4)

whether the link between the activity and a su bstantial effect on interstate commerce is8

attenuated. 529 U.S. at 609-13, 120 S. Ct. at 1749-51 (citations and internal quotation

marks omitted). Rejecting the legislative findings that gender-motivated violence

substantially affects interstate commerce, the Court stated that Congress may not regulate

“noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on

interstate commerce.” Id. at 617, 120 S. Ct. at 1754.

It is undisputed that the instant case turns on whether the property was used in an

activity affecting interstate commerce. The district court’s jury instructions refer only to

“affecting interstate commerce” as the basis for federal jurisdiction. C f. United States v.

Johnson

, 246 F.3d 749, 750 n.2 (5 th Cir. 2001) (per curiam) (stating with respect to another

§ 844(i) case that “[t]he government did not contend that the building was used in

in t erstate or foreign commerce”) (internal quotation marks omitted). Following the

Supreme Court’s analysis in Lopez and Morrison

, we first consider whether other instances

of arson may be aggregat ed in determining the effect of the arson of the Cruz home on

interstate commerce. Second, if aggregation is not permissible, we then consider the

effect on interstate commerce of a one-room home office.

B

In Russell v. United States

, 471 U.S. 85 8, 105 S. Ct. 2455 (1985), a unanim ous

Supreme Court held that 18 U.S.C. § 844(i) is constitutional as applied to the arson of a

two-unit apartment building. Reviewing the statute’s legislative history, the Court

summarized Congress’s intention as “protect[ing] all business property, as well as some

additional property that might not fit that description, but perhaps not every private home.”

Id. at 862, 105 S. Ct. at 2457. The Court stated that real estate rental “unquestionably”6 402 U.S. 146, 91 S. Ct. 1357 (1971).

9

affects commerce, because the local rental is part of “a much broader commercial market

in rental properties.” I d. Relying on P erez v. United States

, 6 the Court held that because

Congress has t he power to regulate the class of activities in the rental market, it may

regulate individual activity within that class. 471 U.S. at 862, 105 S. Ct. at 2457.

In this circuit, we attempted to harmonize Russell with Lopez

by cabining in some

of the possible exce sses of federal prosecution under § 844(i). For exam ple, in U nited

States v. Corona

, 108 F.3d 565 (5 th Cir. 1997), we predicted that the statute would not

constitutionally apply to the arson of a private home simply because the home was

connected to interstate natural gas lines. I d. at 570. In U nited States v. Jo hnson , 194

F.3d 657 (5 th Cir. 1999) (“ Johnson I ”), we vacated the guilty plea of a defendant who set

f ire to and destroyed a Methodist church. The panel held that the plea’s factual basis

failed to establish that the church was used in an activity affecting interstate commerce.

Id. at 662. Judges Garwood and Barksdale disagreed with the majority opinion, insofar as

the district court on remand could consider the aggregate effects of other arsons of

noncommercial buildings in deter mining whether the church was used in an activity

affecting interstate commerce. Id. at 665 (Garwood, J., specially concurring).

Last yea r, in Jones v. United States , 529 U.S. 848, 120 S. Ct. 1904 (2000), the

Supreme Court considered the applicability of § 844(i) to the arson of an owner-occupied

home. In J ones

, the government i dentified three activities of the hom e purportedly

affecting interstate commerce, and therefore supporting the defendant’s conviction: (1) the

home was used to secure a mortgage from an out-of-state lender; (2) the home was used7 530 U.S. 1201, 120 S. Ct. 2193 (2000).

8 Ryan , which was decided over Chief Judge Arnold’s panel and en banc dissents, see

41 F.3d 361 (8 th Cir. 1994), involved the applicability of § 844(i) to the arson of a permanently

closed fitness center. A panel of the Eighth Circuit recently granted § 2255 relief to the

10 to obtain a casualty insurance policy from an out-of-state firm; (3) the home was connected

to out-of-state sources of natural gas. I d. at 855, 120 S. Ct. at 1910. Relying on its earlier

ruling in Lope z

, and invoking the rule of lenity, the Court reversed the conviction and

interpreted § 844(i) as applying “ only [to] property currently used in commerce or in an

activity affecting commerce.” Id. at 859, 120 S. Ct. at 1912.

Eight days after issuing Jones

, the Supreme Court vacated and remanded Johnson

I

, 7 and in a recent opinion, the panel held that the government may not use aggregation

to prove that a firebombed building affects interstate commerce. U nited States v. Johnson

,

246 F.3d 749, 752 n.5 (5 th Cir. 2001) (per curiam) (“ Johnson II ”) (holding that to the extent

that it conflicts with Judge Benavides’ opinion, Judge Garwood’s opinion in Johnson I now

controls). Consistent with J ohnson II

, the government may not p r ove a noncommercial

building’s effect on interstate commerce by aggregating unrelated instances of arson.

C

What remains open for consideration after Jones and Johnson II is whether a home

office satisfies § 844(i)’s requirement that the destroyed property be “used in an activity

affecting interstate commerce.” J ones held that “[t]he proper inquiry

... ‘is into the function

of the building itself, and then a determination of whether that function affects interstate

commerce.’” 529 U.S. at 854, 120 S. Ct. at 1910 (quoting United States v. Ryan

, 9 F.3d

660, 675 (8 th Cir. 1993) (Arnold, C.J., diss enting in part)). 8 Both the Court’s and thedefendant on the basis of the Supreme Court’s holding in Jones

. See United States v. Ryan

,

227 F.3d 1058 (8 th Cir. 2000).

9 W e are not persuaded that a defendant need have any knowledge of a building’s

effect on interstate commerce in order to be convicted under § 844(i). Any suggestion to the

contrary in United States v. Corona , 108 F.3d 565, 571 (5 th Cir. 1997) is inconsistent with

Jones , and with this court’s holdings regarding similar federal crimes. See United States v.

Jackson , 978 F.2d 903, 910-11 (5 th Cir. 1992) (holding that the federal kidnapping statute, 18

U.S.C. § 1201(a), requires only that a victim be “willfully transported” in interstate commerce,

and “does not require that the defendant move the victim or that the defendant know that the

victim will be moved in interstate commerce”); United States v. Dancy , 861 F.2d 77, 81 (5 th Cir.

1988) (holding that 18 U.S.C. § 922(g), prohibiting certain persons from possessing firearms

that have traveled in interstate commerce, does not require that the defendant be aware of the

firearm’s nexus to interstate commerce).

11 statute’s language call for an objective analysis. Accordingly, a jury must determine the

building’s function, not whether the defendant knew of the building’s function. 9

The Jones Court suggested that a home office may have a substantial effect on

interstate commerce: “The Government does not allege that the Indiana residence served

as a home office or the locus of any commercial undertaking.” 529 U.S. at 856, 120 S. Ct.

at 1910. In United States v. Shively , 927 F.2d 804 (5 t h Cir. 1991), we upheld the

constitutionality of federal arson c onvictions based on the defendants’ destruction of a

company vehicle and a home with an office. There we found it significant that company

checks paid for the residence’s mortgage and utility bills, that $100,000 in business funds

were kept at the residence, and that drivers for the homeowners’ trucking company “would

frequently stay at the house” during layovers. Id. at 808. Although Shively was decided

pr ior to J ones

, its functional analysis and weighing of commercial factors remain

instructive.

In the instant case, the jury heard significant, u nrebutted evidence that the Cruz

family’s home office was the primary location for their construction business. As an initial10 The Eleventh Circuit has held that a homeowner’s personal computer failed to have

a substantial effect on interstate commerce, because the computer was used for business

purposes only once per week. See United States v. Denalli , 73 F.3d 329, 330-31 (11th Cir.

1996). Denalli

differs in kind from both Shively and the instant case.

12 m atter, because A-1 Plastering’s address for tax purposes was 2414 Townbre eze, the

location of the home, this case is quickly distinguishable from the garden-variety situation

of a lawyer or salesperson who occasionally works from home. 10 A-1 Plastering’s gross

receipts in 1993 averaged nearly $20,000 per month, and the company paid over $8,000

per month in wages to its employees. At a more fundamental level, an office building

having the same characteristics as the Cruzes’ home office

– where business records and

supplies were stored, where employee paychecks were written and picked up, and where

business vehicles occasionally parked overnight

– wo uld easily be classified as

substantially affecting interstate commerce. Federal jurisdiction over the firebombing of

the Cruz home is not undermined simply because the “locus of [the family’s] commercial

undertaking,” Jones , 529 U.S. at 856, 120 S. Ct. at 1910, was a private home.

D

What remains is the equitable argument presented by Jimenez and Santivanez, that

they had no reason to believe that the Cruz home contained an office. In this view, a quiet

street lined with single-family homes becomes a trap for the unwary firebomber. But this

analysis ignores the other side of the equation. Several defendants who burned down

commercial buildings have benefitted by those buildings’ lack of economic viability. In one

case, a defend a nt who set fire to an abandoned fitness center had his conviction

overturned, because the court held that a completely abandoned building has no13

substantial nexus to interstate commerce. S ee United States v. Ryan , 227 F.3d 1058,

1063-64 (8 th Cir. 2000). In another case, a defendant escaped the application of § 844(i)

because, even though she knew the house was rented to tenants, the house was vacant

and uninhabitable at the time of the arson. See United States v. Gaydos , 108 F.3d 505,

511 (3d Cir. 1997). It would be inconsistent to reward the defendants in R yan and Gaydos

– who had the good fortune of setting fire to buildings that were not commercially viable

– but not to punish defendants who inadvertently destroy a commercially viable office

located in a private home.

III

Akin to Jimenez’s and Santivanez’s Commerce Clause challenge is their contention

that the district court’s jury instructions failed adequately to inform the jury on the interstate

commerce element. The Federal Rules of Criminal Procedure provide that a party may not

complain of an error or omission in the court’s jury instructions without first objecting to the

instruction, “stating distinctly the matter to which that party objects and the grounds of the

objection.” Fed. R. Crim. P. 30. Long-standing precedent teaches that we will not

ordinarily consider arguments not fully raised below. S ee Hormel v. Helvering , 312 U.S.

552, 556, 61 S. Ct. 719, 721 (1941). W hen a defendant fails to object to an instruction,

or if he urges a different ground for the objection on appeal than before the district court,

we review for plain error. United States v. Heath , 970 F.2d 1397, 1407 (5 th Cir. 1992).

The district court instructed the jury that “the government need only establish a

minimal connection between the building or property at issue and interstate commerce.”

Jimenez and Santivanez objected to this sentence of the instructions, and in particular to11 See also Rizzo v. Children’s World Learning Centers, Inc. , 213 F.3d 209, 212 & n.1

(5 th Cir. 2000) (en banc) (holding that a defendant, by requesting a special interrogatory

regarding the defendant’s affirmative defense, did not preserve the issue of whether the trial

court improperly instructed the jury on the defendant’s burden of proof).

14 the word “minimal.” Although the defendants had previously moved to dismiss the

i ndictment on the ground that the Cruz home had an insubstantial effect on interstate

commerce, the basis for their objection to the jury instruction was not that the sentence

misstated the law. Rather, the defendants objected because, in their view, this sentence

commented on the weight of the evidence. The district court therefore had no opportunity

to con sider the constitutional effect of the objected-to language. Cf. United States v.

Jennings

, 195 F.3d 795, 801 (5 th Cir. 1999) (considering, in a Hobbs Act prosecution, the

effect of an instruction requiring “an effect,” rather than a “substantial effect,” on interstate

commerce). 11 Accordingly, we review for plain error.

Under the plain error analysis, the court may reverse a criminal conviction only if

(1) there was error, ( 2) the error was clear and obvious, and (3) the error affected a

substantial right. U

nited States v. Olano

, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993);

Fed. R. Crim. P. 52(b). Further, because review of plain error is permissive, rather than

mandatory, we exercise our discretion to reverse a conviction only if the error “seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” I d. (alteration

in original) (citations and internal quotation marks omitted); United States v. Slaughter

, 238

F.3d 580, 584-85 (5 th Cir. 2000).

Jimenez’s and Santivanez’s challenge fails on the third element of the Olano test,

because the word “minimal” did not affect a substantial right. A criminal defendant15

ordinarily bears the burden of proving that the error “must have affected the outcome of

the district court proceedings.” O lano

, 507 U.S. at 734, 113 S. Ct. at 1778. In U nited

States v. Garcia Abrego

, 141 F.3d 142, 166 (5 th Cir. 1998), we rejected the contention that

the court’s continuing criminal en t erprise (“CCE”) instruction prejudiced a defendant by

suggesting, theoretically, that the defendant could be an organizer of persons who were

not his supervisees. Because the government’s case established that the defendant

supervised a large number of persons, and because the government did not argue that the

jury should convict the defendant based on buyer-seller relationships, we held that no

substantial right was affected by the jury instruction. Id.

Even if a jury instruction entirely omits an eleme nt of the offense, we will affirm

unless the defendant proves that the instruction contributed to his conviction. In U nited

States v. Slaughter

, 238 F.3d 580 (5 th Cir. 2000), the defendant was convicted on various

narcotics distribution charges. Four counts of the defendant’s indictment alleged the type

and quantity of narcotics involved, but as to three of these counts, the district court’s jury

instructions omitted the quantity. I d. at 583. Noting that the jury had the indictment during

deliberations, the court refused to find that a rational jury could conclude that the quantities

stated in the indictment were incorrect. Id. at 584.

The instant case is governed by Garcia Abrego and Slaughter

. The government

introduced substantial evidence t hat supplies, materials, and vehicles owned by A-1

Plastering traveled in interstate commerce. The defendants, during their closing

arguments, never disputed the company’s interstate effects. Even if the word “minimal”

negated entirely the element of interstate commerce, we will affirm the convictions unless12 Because we hold that no substantial right was affected, we express no view on

whether the instructions were erroneous.

16 Jimenez and Santivanez can prove that the instruction was pr ejudicial, and therefore

affected a substantial right. Because the evidence could not permit a rational jury to find

that the Cruzes’ home did not affect interstate commerce, any error below did not affect

a substantial right. 12

IV

Jimenez and Santivanez challenge the trial court’s exclusion of proposed testimony

concerning zoning variances and neighborhood characteristics. They also argue that the

court improperly granted the government’s in limin e motion concerning Little Eddie’s

mental health records, and unfairly limited their ability to impeach him on his mental health

history. W e review the trial court’s evidentiary rulings, including the decision to exclude

relevant evidence pursuant to Federal Rule of Evidence 403, for an abuse of discretion.

United States v. Sprick , 233 F.3d 845, 852 (5 th Cir. 2000).

A

Jimenez offered the testimony of Martin Rodriguez, an employee of the City of San

Antonio, to show that, in 1993, the Cruz’s neighborhood was not zoned for businesses,

and that their home had not received a zoning variance. Citing a lack of relevance, the

trial court excluded Rodriguez’s testimony.

No court has ever required that a business be lawfully zoned in order to satisfy

§ 844(i)’s interstate commerce requirement. In U nited States v. Barton

, 647 F.2d 224 (2d

Cir. 1981), the Second Circuit upheld federal arson convictions for defendants who had13 Pending review of the records, the court prohibited defense counsel from

questioning Little Eddie about his mental health. (Tr. 614, 688).

17 bombed illegal gambling clubs. S ee id. at 232 (“the principal commercial activity was the

gambling”). The result in Barton persuades us to find no error here. Because the

interstate commerce element necessitates a f unctional analysis, Rodriguez’s proposed

testimony regardin g zoning was not relevant to whether the Cruz home substantially

affected interstate commerce . Furthermore, the issue of whether an improperly zoned

business falls under the purview of 18 U.S.C. § 844(i) is a legal question for the court, not

a fact issue for the jury. Therefore the proposed zoning testimony, even if relevant, would

be unduly confusing and misleading to the jury under Fed. R. Evid. 403. The district court

did not abuse its discretion by excluding Rodriguez’s testimony.

B

Prior to trial, the government filed a motion in limine

, request ing that counsel for

Jimenez and Sa ntivanez not refer in their opening arguments to Little Eddie’s mental

health. Granting this motion, the district court ordered that during opening argument, “[t]he

parties ... not discuss the mental condition of any witness unless they are prepared to

show that the condition existed during the time frame of the events relevant to this case.”

During the course of the trial, the court considered the admissibility of Little Eddie’s mental

health records, and whether Jimenez and Santivanez could impeach Little Eddie about the

facts contained therein. 13

Reviewing the mental health records in camera , the court determined that the

records primarily concerned periods of time we ll before and well after the 199318

firebombing, and did not cast doubt on Little Eddie’s willingness to tell the truth. (Tr. 718-

19, 734, 902). W hile sealing the mental health records, the court stated that they would

“be part of th e appellate record.” (Tr. 737). The court made further reference to the

records’ admissibility being subject to appellate review. (Tr. 738, 901). Counsel for

Jimenez and Santivanez cross-examined Little Eddie extensively, but regarding the mental

health records, they were permitted to inquire only into issues such as previous drug use

and overdoses. (Tr. 732-34, 737-38).

1

At trial, Ji menez and Santivanez did not make an offer of proof regarding their

proposed impeachment, based on mental health records, of Little Eddie. In the usual

case, we would not consider their claim that the trial court improperly excluded the records

and related testimony. S ee United States v. Winkle

, 5 87 F.2d 705, 710 (5 t h Cir. 1979)

(stating that the court “will not even consider the propriety of the decision to exclude the

evidence at issue, if no offer of proof was made at trial”); Fed. R. Evid. 103(a). Objecting

to an in limine order excluding testimony or evidence does not relieve a party from making

an offer of proof. See United States v. Estes , 994 F.2d 147, 149 (5 th Cir. 1993) (holding

that defendant’s failure to offer, at trial, a witness’s prior conviction was not excused, even

though the district court had previously granted the government’s i n limine motion to

exclude the conviction).

On the oth er hand, a party’s offer of proof need not be formal. S ee Winkle

, 587

F.2d at 710. W e have also stated that, in general, “excluded evidence is sufficiently

preserved for review when the trial court has been informed as to what counsel intends to14 Partin correctly states that offering the records for impeachment purposes, rather

than as “evidence in chief,” weighs in favor of admissibility. 493 F.2d at 764. But whether

offered for substantive or impeachment purposes, the mental health records must be relevant,

and their probative value must not be substantially outweighed by the danger of unfair

prejudice. Fed. R. Evid. 401, 403; cf. United States v. Abel , 469 U.S. 45, 50-51, 105 S. Ct.

19 show by the evidence and why it should be admitted, and this court has a record upon

which we may adequately examine the propriety and harmfulness of the ruling.” U nited

States v. Ballis

, 28 F.3d 1399, 1406 (5 th Cir. 1994). The latter rule has particular force

when the trial court makes clear that it does not wish to hear further argument on the issue.

Se e id. at 1406-07 (noting that the district court had twice admonished counsel not to

“spoon feed” the court regarding the defendant’s debriefing with the government).

In the instant case, the district court did not prevent counsel from making an offer

of proof, but explained after its in camera review that Little Eddie’s mental health records

were not admissible. Upon sealing the records, the court repeatedly stated that the

defendants’ objections were preserved for appeal. Based on this record, we conclude that

the district court was adequately informed of the reasons for which counsel wished to

impeach Little Eddie concerning his mental health.

2

In reviewing the sealed exhibits, we are mindful that a defendant has “the right to

attempt to challenge [a witness’s] credibility with competent or relevant e v idence of any

mental defect or treatment at a time probatively related to the time period about which he

was attempting to testify.” U nited States v. Partin , 493 F.2d 750, 763 (5 th Cir. 1974). To

be relevant, the mental health records must evince an “impairment” of the witness’s “ability

to comprehend, know, and correctly relate the truth.” Id. at 762. 14465, 468-69 (1984) (holding that the Federal Rules of Evidence permit the impeachment of a

witness by showing bias).

20 No rule outlines with precision the severity and timing that make a witness’s mental

illness relevant for impeachment purposes. But the decisions of this and other circuits

stand for the general principle that a diagnosis of schizophrenia or a psychosis will be

releva nt, unless the diagnosis is too remote in time from the events alleged in the

indictment. Compare Partin , 493 F.2d at 764 (witness diagnosed with schizophrenia six

months prior to the defendants’ Hobbs Act violat ions), G reene v. Wainwright

, 634 F.2d

272, 274, 276 (5 th Cir. 1981) (witness was allegedly involved in “certain bizarre criminal

actions

... such as shooting out the windows of a bar,” during the “same general time

period as the [defendant’s] marijuana sale”); United States v. Society of Indep. Gasoline

Marketers

, 624 F.2d 461, 467 (4 th Cir. 1979) (witness hospitalized for schizophrenia, manic

depression, and delusions during the time o f defendants’ Sherman Act violations); and

United States v. Lindstrom

, 698 F.2d 1154, 1164-67 (11 th Cir. 1983) (witness diagnosed

with paranoia and schizophrenia during the time of defendants’ conspiracy) w ith United

States v. Diecidue

, 603 F.2d 535, 551 (5 th Cir. 1979) (witness committed twelve years prior

to defendants’ conspiracy, but never again treated for mental illness).

For witnesses whos e mental history is less severe, district courts are permitted

greater latitude in excluding records and limiting cross-examination. See United States

v. Sasso

, 59 F.3d 341, 347-48 (2d Cir. 1995) (affirming limit on cross-examination of

witness who was depressed and too k Prozac and Elovil shortly before the time of the

defendants’ firearms smuggling conspiracy); United States v. Butt

, 955 F.2d 77, 83 (1 st Cr.15 The examination notes state that Little Eddie “fe[lt] bad” after his father passed away

in April 1994.

21 1992) (affirming exclusion of records and expert testimony, and limit on cross-examination

of a witness who once attempted suicide, but was never diagnosed with a mental illness);

United States v. Moore

, 923 F.2d 910, 913 (1 st Cir. 1991) (affirm ing lim it on crossexamination of witness who saw a therapist after the death of her child, and ten years prior

to the embezzlement conspiracy). Moreover, none of the cited cases involve adolescent

witnesse s, among whom depression and suicidal tendencies may be less indicative of

severe mental incapacity.

In the instant case, the district court reviewed Little Eddie’s mental health records,

then gave the parties time to uncover the following facts. Beginning while he was in sixth

grade, Little Eddie was diagnosed with conduct and hyperactivity disorders. In September

1990, in a confrontation with his mother over going to school, Little Eddie became verbally

abusive, broke a dresser mirror, and threatened to kill himself. He was admitted to the San

Antonio State Hospital for two weeks, during which time he was prescribed with an antidepressant medication. In early 1991, Little Eddie repeatedly refused to take his

medic ation, and twice attempted suicide. He was again admitted in October 1991, but

soon released beca use his depression was under control, and he showed no further

suicidal tendencies, nor any signs of psychosis. W hile in crim inal detention in 1994, Little

Eddie stated that he almost overdosed on cocaine one or two years before, and though

he was still depressed at the time of his detention, 15 he appeared coherent and stable.

Finally, in October 1997, over four years after the firebombing at issue in this case, Little16 Although the appellants’ brief recites a number of inconsistencies between the

testimony of government witnesses Little Eddie and Brian Mahan, it ignores the fact that

counsel cross-examined both witnesses at length on these matters. Little Eddie’s credibility is

a quintessential jury issue.

22 Eddie threatened to jump off a highway overpass. On being admitted to a local m ental

health facility, he claimed that he wanted to see his child. Little Eddie was treated for ten

days, then upon exhibiting no further signs of dangerousness, an d agreeing to seek

counseling, he was released.

After carefully reviewing the sealed exhi bits, we find that there is only a tenuous

argument that Little Eddie suffered from an impairment affecting his ability to comprehend

and tell the truth. He was never diagnosed with a psychosis. Further, although Little

Eddie’s self

- destructive behavior arguably overlapped with the 1993 firebombing of the

Cruz home, it is important to remember that he was between fourteen and fifteen years old

at the time of his two known suicide attempts. Finally, the 1997 incident appears entirely

unrelated to his behav ior of six and seven years before. Little Eddie was extensively

cross-examined by counsel for Jimenez and Santivanez regarding his drug use, criminal

activity, and allegedly inconsistent statements to police. The district court also permitted

counsel to inquire into issues such as his drug overdose. W e cannot say that these

limitations denied Jimenez and Santivanez their Sixth Amend ment right adequately to

confront Little Eddie. 16 Therefore we find no abuse of discretion.

V

There is no allegation before us that the prosecutions of Jimenez and Santivanez17 There is no statute of limitations on the § 844(i) charge, because Richard Cruz’s

death makes it a capital offense. 18 U.S.C. § 3281. As to the non-capital charges, the August

8, 1998 indictment satisfies the five-year statute of limitations. 18 U.S.C. § 3282.

18 Santivanez failed to file a motion to dismiss prior to trial, thus waiving this issue for

purposes of his appeal. See Fed. R. Crim. P. 12(b)(1).

23 failed to satisfy the relevant statutes of limitation. 17 For pre-indictment delay to violate the

Due Process clause of the Constitution, a defendant must show both actual and

substantial trial prejudice, and intentional delay by the government for a bad faith purpose.

United States v. Crouch

, 84 F.3d 1497, 1500 ( 5 th Cir. 1996) (en banc). Prior to trial,

Jimenez moved to dismiss the indictment against him on grounds of prejudicial preindictment delay. 18 Finding that Jimenez failed to show prejudice, the court below refused

to consider the purpose for the delay, and denied the motion to dismiss. W e review the

district court’s factual determ inations for clear error. I d. at 1523; United Stat es v.

Beszborn , 21 F.3d 62, 66 (5 th Cir. 1994).

The firebombing of the Cruz home occurred on September 8, 1993, and the first

indictment against Jimenez was ret urned on August 5, 1998. On appeal, Jimenez

indicates that two factors establis h prejudice in his case. First, he argues that, had the

government indicted him prior to his twenty-first birthday, he would have been prosecuted

as a juvenile. Second, he argues that Richard Cortez, who died in January 1995, would

have provided crucial testimony.

Jimenez’s first ground for finding prejudice concerns the applicability of the Juvenile

Delinquency Act (“JDA”), 18 U.S.C. §§ 5031, et seq . (1994). Jimenez argues that, even19 W e have not previously considered the applicability of the JDA to defendants who

commit crimes before their eighteenth birthdays, but who are indicted after reaching the age of

twenty-one. Those circuits that have addressed this issue agree that the JDA is inapplicable

under these circumstances. See United States v. Hoo , 825 F.2d 667, 669-70 (2d Cir. 1987);

United States v. Araiza-Valdez , 713 F.2d 430, 432-33 (9 th Cir. 1980); United States v.

Delatorre , 157 F.3d 1205, 1209 n.2 (10 th Cir. 1998); In re Martin , 788 F.2d 696, 697-98 (11 th

Cir. 1986); United States v. Thomas , 114 F.3d 228, 264 (D.C. Cir. 1997).

24 though the JDA does not technically apply to him, 19 h e would have benefitted from its

provisions had the government indicted him more promptly. On this question, we find

instructive the Second Circuit’s decision in United States v. Hoo

, 825 F.2d 667 (2d Cir.

1987). The defendant in H oo was charged, only two weeks following his twenty-first

birthday, with operating a RICO enterprise, and with seven acts of racketeering, including

conspiracy to commit murder, attempted murder, and murder. I d. at 668. The defendant

moved to dismiss the indictment, and at an e videntiary hearing prior to trial, the

government stated that until the day before the defendant’s twenty-first birthday, it lacked

“the most important evidence against him”

– a cooperating witness’s testimony about the

defendant’s participation in a murder. I d. at 669. The court of appeals held that the

defendant failed to show that the government’s delay was the result of an improper

prosecutorial motive. Id. at 671.

The instant case admittedly differs from Hoo because Jimenez w as not indicted

immediately after the government’s debriefing of Mahan and Little Eddi e. But a critical

factor cuts sharply against Jimenez’s claim of prejudicial delay: until March 8, 1999, the

government had no reason to believe that the JDA might apply. Prior to that date, when

they rec eived notice from Jimenez’s counsel concerning Jimenez’s date of birth,

prosecutors were unaware that he was 17 years old at the time of the firebombing. At the20 The Texas Department of Corrections, which has held Jimenez in custody since

November 1993, erroneously lists his birth date as either April 7, 1974 or April 7, 1975. The

San Antonio Police Department, in several reports regarding Jimenez, erroneously lists his

birth date as April 7, 1975.

21 Mahan and his counsel signed the government’s Rule 11 letter on August 11, 1995.

Little Eddie and his counsel signed the government’s Rule 11 letter on September 10, 1996.

25 time of the August 1998 indictment, only one document in the government’s files indicated

J imenez’s correct date of birth of April 7, 1976; numerous other documents, including

those provided by the Texas Department of Corrections, erroneously listed his date of birth

as April 7, 1974 or April 7, 1975. 20 According to either of the erroneous dates, Jimenez

would have been an adult at the time of the Cruz firebombing. The government therefore

had no reason at the time to believe it should pursue the arso n and firearm s charges

against Jimenez under the JDA.

Moreover, even if the government had realized Jimenez’s true date of birth prior to

his twenty-first birthday, April 7, 1997, th e JDA expressly requires the government to

transfer Jimenez for prosecution. Section 5032 mandates that “a juvenile who is alleged

to have committed an act after his sixteenth birthday” described in 18 U.S.C. § 844(i), “and

who has previously been found guilty of

... an offense in violation of a State felony statute”

equivalent to § 844(i), “ shall be transferred to the appropriate district court of the United

States for criminal prosecution.” 18 U.S.C. § 5032 (emphasis added). Following his

August 7, 1995 state conviction for the Hernandez firebombin g

, it was a foregone

conclusion that Jimenez be transferred in connection with the Cruz firebombing.

Mahan and Little Eddie, the cooperating witnesses in this case, did not debrief with

the government until after August 7, 1995. 21 W e therefore agree with the government that22 Jimenez fails to suggest, before the district court below, and now before us, how

Cortez would have provided crucial testimony. W e note that Cortez’s death allowed Jimenez,

at trial, to shift the blame for the Cruz firebombing.

26 there was no indictable case against Jimenez until at least August 11, 1995, and that any

subsequent delay in indicting him cannot therefore be prejudicial.

A fortiori

, Jimenez’s second ground for finding prejudice fails. Richard Cortez, who

was a Klan leader and who fired gunshots into the Cruz home, died in January 1995,

months before Mahan and Little Eddie agree d to cooperate with the government.

Therefor e even the speculative prejudice to Jimenez, 2 2 cannot be attributed to the

government. The district court did not clearly err in finding that Jim enez’s due process

rights were not prejudiced by the government’s August 5, 1998 indictment.

VI

In Kastigar v. United States , 406 U.S. 441, 92 S. Ct. 1653 (1972), the Supreme

Court upheld the constitutionality of 18 U.S.C. § 6002, which grants use and derivative-use

immunity to federal witnesses. Although the statute does not grant “absolute immunity

against future prosecution,” id. at 451, 92 S. Ct. at 1660 (quoting C ounselman v.

Hitchcock

, 142 U.S. 547, 586, 12 S. Ct. 195, 206 (1892)), the Court held that the use- and

derivative-use protection is “coextensive with the [Fifth Amendment] privilege

... and is all

that the Constitution requires.” I d. at 459, 92 S. Ct. at 1664. Federal Rule of Criminal

Procedure 11(e)(6) similarly provides that, with limited exceptions, statements made by a

defendant during plea discussions with the government are inadmissible. Fed. R. Crim.

P. 11(e)(6)(D).

Prior to trial, Jimenez moved to dismiss the indictment, alleging that the government23 Jimenez argues that, in order to prosecute him, the government must prove that

Jimenez breached the alleged immunity agreement. This rule only applies, however, if

Jimenez first proves that such an agreement existed. See United States v. Cantu , 185 F.3d

298, 302 (5 th Cir. 1999); Castandea , 162 F.3d at 836.

27 had violated an agreement not to prosecute him. Following a hearing on this matter, the

district court rejected Jimenez’s claim as based solely on the subjective belief of Jimenez’s

then -counsel. The district court further held that the government’s prosecution against

Jimenez was not tainted by Jimenez’s 1994 statement to ATF agent Carla Bell. W e review

the district court’s factual determinations for clear error. U nited States v. Williams

, 859

F.2d 327 (5 th Cir. 1988) (per curiam).

A

A defendant who claims that he has received transactional immunity asserts, in

essence, the existence of an agreement not to prosecute. As we held in U nited States v.

Castaneda

, 162 F.3d 832 (5 th Cir. 1998), “[n]onprosecution agreements

... are contractual

in nature, and are therefore interpreted in accordance with general principles of contract

law.” I d. at 835. Such an agreement may be either express or implied. Applying contract

law, the defendant bears the burden of proving that there was a mutual manifestation of

assent

– either verbally, or through conduct

– to the agreement’s essential terms. S ee,

e.g.

, United States v. McHan

, 101 F.3d 1027, 1034 (4 th Cir. 1996) (citing Restatement

(Second) of Contracts § 19 (1979)). 23 The court must evaluate both subjective and

objective factors in determining whether the defendant has carried his burden. U nited

States v. Robertson , 582 F.2d 1356, 1366 (5 th Cir. 1978) (en banc).

The testimony and exhibits at the pretrial hearing established that on July 20, 1994,24 Cf. United States v. Robertson , 582 F.2d 1356, 1365 (5 th Cir. 1978) (en banc) (noting

that “not every discussion between an accused and agents for the government is a plea

negotiation”).

25 W e find no merit in Jimenez’s argument that, by agreeing to undergo a polygraph

examination, he must have believed that he would not be prosecuted. His subjective belief

cannot, by itself, establish transactional immunity.

28 the government, through Assistant United States Attorney David M. Shearer, sent

Jimenez’s counsel, Richard E. Langlois, a letter proposing to meet with Jimenez regarding

his involvement in the Cruz firebombing. This letter stated, in part, that the meeting would

be governed by “Rule 11 of the Federal Rules of Criminal Procedure,” and that pursuant

to Rule 11(e), “any statement which Jiminez [sic] makes in this meeting will not be used

against him in a future prosecution ....” Langlois and Jimenez signed this letter, indicating

their agreement with its terms. Jimenez was then interviewed by ATF agent Carla Bell on

September 6, 1994.

Assuming arguendo that Jimenez’s Septem ber 1994 debriefing with the government

constituted a plea discussion for purposes of Rule 11, 24 we find no evidence supporting

Jimenez’s assertion that the government agreed not to prosecute him. Mr. Langlois’s letter

of August 26, 1994, in which he indic ated Jimenez’s willingness to debrief with the

government, does not discuss immunity at all. As Mr. Langlois admitted at the hearing, he

and the government agents never directly discussed transactional immunity for Jimenez;

Lang l ois believed the distinction between use and transactional immunity to be “an

afterthought.” Based on these facts, we cannot find that the district court clearly erred in

determining that the government offered Jimenez only use immunity. 25

B26 Cf. Cantu , 185 F.3d at 302 (“The district court did not make any factual findings;

therefore we review Cantu’s claim de novo .”).

27 In United States v. North , 920 F.2d 940 (D.C. Cir. 1990), the District of Columbia

Circuit held that in conducting a Kastigar hearing, the district court may not substitute an in

camera review for a hearing in which the defendant is permitted to cross-examine witnesses.

Id. at 944.

28 The government notified Jimenez in September 1998 that it had lost the tape

recording of the debriefing.

29 Secondly, we consider whether Jimenez’s 1994 deb riefing contributed, either

directly or indirectly, to the government’s case against him. In a taint hearing (commonly

referred to as a “ Kastigar hearing”), the government must demonstrate that it used nothing

from the defendant’s immunized testimony, either directly as evidence, or indirectly as an

investigatory lead. K

astigar

, 406 U.S. at 460, 92 S. Ct. at 1665. The government satisfies

this burden by proving by a preponderance of the evidence “that the evidence it proposes

to use is derived from a legitimate source wholly independent of the compelled testimony.”

Id. W e review the district court’s factual findings for clear error. 26

In reviewing the conduct of a Kastigar hearing, we have rejected the approach of

another circuit that “constitutionalizes elements of the Kastigar process.” United States v.

Ca ntu , 185 F.3d 298, 304 (5 t h Cir. 1999). 27 Although the government must “give the

defendant a chance to cross-examine relevant witnesses, ... the focus of the ... inquiry

should remain on whether the evidence was tainted, and not on the procedures by which

the court comes to this conclusi o n.” Id. For example, the government may submit posthearing documents supporting a witness’s testimony. Id.

Jimenez claims that because his debriefing conversation was tape-recorded, and

because the government conceded that it has lost the tape, 28 the govern ment failed to29 Significantly, Jimenez’s 1993 statement to the San Antonio Police Department –

which consists primarily of his denial of wrongdoing in the Cruz firebombing – was made

voluntarily, and unlike his 1994 statement, is not immunized.

30 carry its burden of showing that the subsequent prosecution was not tainted. At the

pretrial hearing, the government submitted a h andwritten transcript of Jimenez’s

debriefing. ATF agent Carla Bell wrote this transcript while listening to the tape at some

time prior t o March 1995. The government did not call Bell to testify at the hearing, but

authenticated the transcript through ATF agent Gena Alvarez, who testified that she is

familiar with Bell’s handwriting.

We have not yet determined the extent to which the Federal Rules of Evidence

apply to K

astigar hearings. Nor need we do so in this case. Because the original

recording has been lost or destroyed, the tr anscript would ordinarily be adm issible as

“other evidence of the contents.” Fed. R. Evid. 1004(1). Moreover, the potential hearsay

problem must be balanced against the proper focus of the Kastigar hearing: whether the

government’s evidence was tainted. As the district court noted, Jimenez never

contradicted Alvarez’s testimony that the transcript was accurate. Jimenez in fact admits

that his 1994 interview revealed “all of the same facts, leads, names and events contained”

in his 1993 statement to Texas authorities. 29 There was no clear error in the district court’s

finding that Jimenez’s prosecution was untainted by his 1994 debriefing.

VII

A sentencing court’s decision not to depart downwar d is reviewable only if “the

refusal to depart ‘is premised upon the

... court’s mistaken assumption that the Guidelines

do not permit such a departure.’” United States v. Dadi

, 235 F.3d 945, 954 (5 th Cir. 2000)31

(quoting United States v. Powers

, 168 F.3d 741, 753 (5th Cir. 1999)). Jimenez does not

c ontend that the district court believed it had no authority to depart on the basis of

Jimenez’s age at the time of the C ruz firebom bing. Therefore we lack jurisdiction to

entertain this argument.

CONCLUSION

For the reasons stated, we AFFIRM the convictions and sentences in this case.