* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 11 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. ROBERT ALLEN LITTLE, JR.,

Defendant - Appellant. No. 96-4136 (D. Ct. No. 95-CR-149) (D. Utah)

ORDER AND JUDGMENT *

Before TACHA, BRISCOE, and LUCERO, Circuit Judges.

Defendant Robert Allen Little, Jr. was convicted of violating federal law for bombing a dormitory at Dixie College in St. Geo rge, Utah in October of 1993. He raises four issues on appeal. We exercise juris diction under 28 U.S.C. § 1291 and affirm.
I. B ACKGROUND Robert Allen Little, Jr. moved to St. George, Utah in the summer of 1993.- 2 -

There, he associated with members of a skinhead org anization and engaged in activities manifesting a hatred for Jews and African-Americans. During late September or early October, 1993, on at least two s eparate occasions, Mr. Little told acquaintances that he was going to cause a bom b to explode. On one of these occasions, he specified that the bomb would explode at a local college dormitory. On October 10, 1993, a homemade pipe bomb exploded outside a dormitory room occupied by two black students who attended Dixie C ollege. The explosion damaged the building extensively and destroyed the property of the two students. The bomb had “KKK” written on it. On the day of the bombing, Mr. Little’s roommate, J ennifer Price, had seen Mr. Little build a pipe bomb and cause a small expl osion to test the device. Mr. Little told Ms. Price that he was “going to get som e niggers.” Tr. 326. That same night, when Ms. Price returned with a friend, Mr. L ittle told them that he had just “got some niggers” by setting off a bomb at a colle ge dormitory. Tr. 328. He also said that he had left a note on another studen t’s door. The morning after the bombing, a different black st udent found a note at his door that read, “All niggers ought to die,” had“KKK” written on it, and had drawings of swastikas and a man hanging from a tree . Tr. 252-54. The student transferred from the college because of the bombing and the note. The night after the bombing, Mr. Little told three acquaintances th at he was responsible for the- 3 -

bombing and commented that had the two black students been killed, he would not have committed murder because blacks are “subhu man.” Tr. 454. He also told them that he was “going down to the college” t o “shoot all the niggers.” Tr. 455, 470. Immediately after this conversation, two of the acquaintances reported what Mr. Little had said to the police. The next d ay, the police searched Mr. Little’s apartment. They found a PVC pipe, 53 fuse s, and lead fragments similar to those found at the scene of the explosion. Duri ng the search, Mr. Little ran from the apartment and fled the state. Mr. Little was sixteen years old at the time of the bombing. During the summer of 1995, Mr. Little surrendered h imself to a juvenile facility in California and was serving a sentence t here when the United States initiated this action. His jail term in Californiarelates to his involvement in the firebombing of the house of an African-American fam ily on February 14, 1993, several months before he moved to Utah and the bomb ing of the Dixie College dormitory. On August 23, 1995, the United States filed a four- count sealed information under 18 U.S.C. § 5032 charging Mr. Little with act s of juvenile delinquency. A federal grand jury charged Mr. Little with a violat ion of 18 U.S.C. § 844(i) (malicious damage and destruction by fire and explo sive), a violation of 26 U.S.C. § 5861(d) (possession of an unregistered fir earm), and two violations of 42- 4 -

U.S.C. § 3631(a) (interference with housing rights of person on the basis of race). The government filed a certification under § 5032, asserting that the federal district court had jurisdiction over Mr. Little bec ause he was a juvenile at the time of the alleged offenses, he was charged with a felo nious crime of violence in which the government had a substantial interest, an d local authorities had refused to prosecute Mr. Little. The government evidenced the local authorities’ refusal by attaching a letter from the county attorney stat ing that the local courts would not assume jurisdiction over the case. The government also filed a motion under § 5032, re questing that the district court proceed against Mr. Little as an adu lt because he was charged with violent crimes involving the attempted use of physi cal force and because he had been found guilty of committing violent crimes in t he past. The district court granted this motion and proceeded against Mr. Littl e as an adult. At trial, the government introduced the above-recou nted evidence, including Mr. Little’s involvement in the firebombi ng of the house in California eight months before the dormitory bombing. The gov ernment also introduced evidence that 10 percent of the Dixie College stude nt body were out-of-state residents who paid rent to live in the school’s dormitories, approximately 25 percent of the school’s educational materials came from out-of-state, and that a large amount of its electricity and power were furn ished by out-of-state sources.- 5 -

Mr. Little testified at trial and denied all involv ement in the Dixie College bombing. He testified that he never told anyone th at he was responsible for the bombing. He did admit that he was responsible for the firebombing in California, but he contended that he committed that crime becau se of a dispute over a bicycle and not because of the victims’ race. On May 13, 1996, a jury found Mr. Little guilty of all counts. On July 22, 1996, the district court sentenced Mr. Little to tw elve years in prison, fined him $12,000, and ordered him to pay $190 in restitution

. II. D ISCUSSION Mr. Little raises four issues on appeal. He assert s that (1) under 18 U.S.C. § 5032, federal jurisdiction was improper and he sh ould not have been charged as an adult, (2) 18 U.S.C. § 844(i) is unconstitutiona l under the rule of United States v. Lopez , 115 S. Ct. 1624 (1995), (3) the district court ab used its discretion by granting the government’s motion in limine to limitcross-examination of a government witness, and (4) the evidence presented by the government at trial was not sufficient to sustain a conviction. We first turn to the question whether, under 18 U.S .C. § 5032, the district court properly exercised jurisdiction over Mr. Litt le and whether he was properly charged as an adult. We review questions of statut ory interpretation de novo.
See United States v. Angelo D , 88 F.3d 856, 859 (10th Cir. 1996). Section 5032- 6 -

addresses two issues relevant to this case: the req uirements for certification of federal jurisdiction over a juvenile and mandatory transfer to adult status. A federal district court may only exercise jurisdic tion over a juvenile if the Attorney General certifies to the court that (1) th e local state court does not have or refuses to exercise jurisdiction over the case, (2) the state does not have adequate programs and services to meet the needs of juveniles, or (3) the offense charged is a felony crime of violence in which the United States has a substantial federal interest. See 18 U.S.C. § 5032. For there to be a proper exerci se of federal jurisdiction, the Attorney General only nee ds to certify to one of these three. We conclude that the district court properl y exercised federal jurisdiction over Mr. Little under the first option because the government certified to the federal district court that the local state court i n Utah refused to assume jurisdiction over the case and evidenced that certi fication by a letter from the county attorney stating that he would not prosecute the case. Mr. Little also contends that the district court sh ould not have transferred him to adult status under § 5032. We disagree. Se ction 5032 requires a federal district court to transfer the juvenile defendant t o adult status if (1) the juvenile was at least 16 years old when the criminal act was alleged to have occurred, (2) the alleged act would be, if committed by an adult, a felony that has as an element the use or attempted use of physical force against another person, and (3) the- 7 -

juvenile has previously been found guilty of an actthat would be, if committed by an adult, a felony that has as an element the use o r attempted use of physical force against another person. See 18 U.S.C. § 5032. Mr. Little was 16 years old at the time of the Dixie College bombing; the alleged crim e involved the attempted use of physical force against another person; and he wa s previously found guilty of firebombing the house in California, an act which i nvolved the attempted use of physical force against another person. The distric t court was required to transfer Mr. Little to adult status because all three of the statutory conditions existed. See 18 U.S.C. § 5032 (“[A] juvenile . . . shallbe transferred . . . for criminal prosecution.”) (emphasis added). We next address the constitutionality of 18 U.S.C. § 844(i) in light of United States v. Lopez , 115 S. Ct. 1624 (1995), a question that we reviewde
novo. See United States v. 829 Calle de Madero Chaparral , 100 F.3d 734, 736 (10th Cir. 1996). Mr. Little argues that § 844(i) i s unconstitutional as applied in this case. Section 844(i) provides, in relevant part: Whoever maliciously damages or destroys . . . , by means of fire or an explosive, any building . . . used in interstate or foreign commerce or in any activity affecting interstate foreign com merce shall be imprisoned for not more than 10 years or fined not more than $10,000, or both . . . . 18 U.S.C. § 844(i). The Supreme Court held, ten ye ars before its decision in Lopez , that § 844(i) is an exercise by Congress of its f ull power under the- 8 -

Commerce Clause. See Russell v. United States , 471 U.S. 858, 859 (1985). In Lopez , the Supreme Court held that Congress had exceede d its authority under the Commerce Clause when it enacted the Gun-Free Sc hool Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A). That statute made posses sion of a firearm in a school zone a federal crime. The Court held that the stat ute had “nothing to do with ‘commerce’ or any sort of economic enterprise,” nordid it require the firearm possession to be connected in any manner to interst ate commerce. Lopez , 115 S. Ct. at 1630-31. Lopez does not change the Court’s conclusion in Russell because the statute under consideration here, unlike the on e at issue in Lopez , contains a “jurisdictional element which . . . ensure[s], thro ugh case-by-case inquiry, that the [arson] in question affects interstate commerce.” Lopez , 115 S. Ct. at 1631. Mr. Little asserts that the jurisdictional element cannot be established in this case because, as a matter of law, the Dixie Co llege dormitory cannot be considered a “building . . . used in interstate . . . commerce.” 18 U.S.C. § 844(i). Because Congress sought to exercise its full Consti tutional power in § 844(i), see Russell , 471 U.S. at 860, the question that we must answeris whether Congress would have the authority under the Commerce Clause to prohibit the destruction of the Dixie College dormitory. See United States v. Pappadopoulos , 64 F.3d 522, 525 (9th Cir. 1995) (asking the same question as to the destruction of a private residence). The Court’s disposition in Rus sell controls here. In Russell ,- 9 -

the Court addressed whether § 844(i) applies to a two-unit apartment building that is used as rental property. See Russell , 471 U.S. at 858. The Court concluded: [T]he local rental of an apartment unit is merely a n element of a much broader commercial market in rental properties . The congressional power to regulate the class of activi ties that constitute the rental market for real estate includes the powe r to regulate individual activity within that class. Id. at 862. In this case, the government presented ev idence that Dixie College collected rent from students living in the dormitory that Mr. Little bombed. Indeed, some of the students living in the dormitory were out-of-state residents. Because the dormitory was rental property, there is no question that Congress would have the authority under its commerce power t o prohibit its destruction. Therefore, § 844(i) was constitutionally applied inthis case. Mr. Little next asserts that the district court err ed by denying him the right to cross-examine Ms. Price, his roommate at the tim e of the bombing, regarding her past psychiatric treatment. Review of a trial court’s decision to limit crossexamination of a witness is reviewed for abuse of d iscretion, and the ruling will be reversed only if the abuse of discretion suggest s a manifestly unreasonable judgment. See United States v. Hinkle , 37 F.3d 576, 579 (10th Cir. 1994). Ruling upon the government’s motion in limine to re strict cross-examination of Ms. Price, the district court determined that Mr. L ittle could inquire into her psychiatric treatment so long as he could demonstrate that the treatment both- 10 -

“related in time” to the events about which she was going to testify and was serious enough so as to be “relevant . . . to [her] ability to accurately perceive conditions.” Tr. 309, 310-11. The burden placed o n Mr. Little was quite minimal and, we think, a reasonable restriction on his right to impeach Ms. Price through cross-examination, particularly given the very sens itive nature of this line of questioning. Given the broad discretion that the trial court possesses in controlling cross-examination, we conclude that the limitations imposed by the trial court were well within its discretion. Finally, we turn to Mr. Little’s argument that the evidence that the government presented at trial was not sufficient, a s a matter of law, to sustain a conviction. In reviewing the sufficiency of the evi dence, we will reverse only if we conclude that “no rational trier of fact could h ave found the essential elements of the crime beyond a reasonable doubt.” United St ates v. Lopez , 100 F.3d 113, 118 (10th Cir. 1996) (quotations omitted). Mr. Little asserts that the evidence presented at trial is insufficient because (1) all evidence was circumstantial; (2) the jury discounted his testimony; and (3) there wa s no evidence of his racial animus to support the two civil rights violations. We are not persuaded by his argument. The evidence of Mr. Little’s guilt was substantial. The government presented numerous witnesses who corroborated the g overnment’s assertions and- 11 -

accounted for virtually every move Mr. Little made the day of and the two days following the bombing. The government adduced evid ence that the pipe bomb that exploded was labeled “KKK” and testimony that directly linked that pipe bomb to Mr. Little. Furthermore, the government pr esented several witnesses who testified about Mr. Little’s hatred for blacks and his desire to kill them. We conclude that there was ample evidence to support the jury’s verdict. The judgment of the district court is AFFIRMED in a ll respects.

ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge