FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DENNIS MAHON,

Defendant-Appellant.

No. 12-10273

D.C. No.

2:09-cr-00712-DGC-1

OPINION

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

May 11, 2015—San Francisco, California

Filed July 20, 2015

Before: Sidney R. Thomas, Chief Judge, and Fortunato P.

Benavides,*and John B. Owens, Circuit Judges.

Opinion by Judge Owens

* The Honorable Fortunato P. Benavides, Senior Circuit Judge for the

U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
2 UNITED STATES V. MAHON

SUMMARY**

Criminal Law

The panel affirmed convictions under 18 U.S.C. § 844(i)

and (n) for a pipe bomb explosion at the City of Scottsdale

Office of Diversity and Dialogue.

The panel explained that an intrinsically non-economic

building can qualify under § 844(i)’s interstate commerce

requirement if the building actively engages in interstate

commerce or activity that affects interstate commerce, and

the fact that an entity is not-for-profit or municipal in nature

does not foreclose a finding that it is actively engaged in

interstate commerce. The panel held that the record

demonstrates that the Diversity Office regularly engaged in

activities that affected interstate commerce.

Because § 844(i) has the necessary jurisdictional

interstate-commerce element, the panel rejected the

defendant’s facial challenge to its constitutionality. Because

the Diversity Office possessed the requisite nexus to

interstate commerce, the panel also rejected the defendant’s

as-applied challenge to the statute’s constitutionality.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. MAHON 3

COUNSEL

Daniel L. Kaplan (argued), Assistant Federal Public

Defender; Jon M. Sands, Federal Public Defender, Phoenix,

Arizona, for Defendant-Appellant.

Joan G. Ruffennach (argued), Assistant United States

Attorney; John S. Leonardo, United States Attorney; Mark S.

Kokanovich, Deputy Appellate Chief, Phoenix, Arizona, for

Plaintiff-Appellee.

OPINION

OWENS, Circuit Judge:

Dennis Mahon appeals his convictions under 18 U.S.C.

§§ 844(i) and (n) for the pipe bomb explosion at the City of

Scottsdale Office of Diversity and Dialogue (“Diversity

Office”), which injured three people and damaged property. 

Section 844(i) makes it a crime to damage or destroy, by

means of an explosive, property that is “used in” interstate

commerce or in “activity affecting” interstate commerce. 

Mahon contends his convictions are invalid because the

Diversity Office’s activities did not satisfy the statute’s

interstate commerce requirement. We have jurisdiction under

28 U.S.C. § 1291, and we affirm. The Diversity Office was

property “used in” commerce or in “activity affecting”

commerce.

A concurrently filed memorandum disposition addresses

Mahon’s other claims.
4 UNITED STATES V. MAHON

I. FACTS

A. The Diversity Office

Scottsdale created the Diversity Office to, among other

things, promote the city as a “tourist destination.” One of the

first of its kind in the country, it engaged in community

outreach with businesses and cultivated relationships with

local, national, and international organizations.

Housed in the city’s Human Resources building, the

Diversity Office worked with chambers of commerce and

partnered with corporations to sponsor and host cultural

events in Scottsdale. Venues included public parks with free

admission and resort hotels with tickets costing $60 each. 

These functions featured crowds ranging from the hundreds

to the thousands, and national speakers who received

appearance fees of up to $15,000. Corporations collectively

donated tens of thousands of dollars annually for some of

these events, and food and entertainment vendors applied and

paid fees to the Diversity Office to participate.

The Diversity Office promoted these functions through

direct mailings, media outlets, and dedicated phone lines. It

also worked with out-of-state organizations (including the

American Speakers Bureau) to identify speakers, prepare

contracts, arrange transportation, and ensure payment. 

Several speakers were paid to travel from out of state to

address audiences in Scottsdale.

B. The Bombing

On February 21, 2004, a Scottsdale employee found a

box, addressed to the director of the Diversity Office, in a
UNITED STATES V. MAHON 5

library carrel. After sitting behind the library circulation

counter for a few days, the box made its way to the Diversity

Office. On February 26, 2004, the director opened the box,

which triggered a massive pipe bomb explosion. He suffered

severe trauma, requiring multiple surgeries and skin grafts,

and nearly lost a finger. Two other employees endured

injuries, including shrapnel in an eye. The powerful blast

shattered windows, blew a hole in the counter upon which the

box rested, and caused a wall and the ceiling to collapse.

A few months earlier, Mahon left a voicemail message

with the Diversity Office. He identified himself as “Dennis

Mahon of the White Aryan Resistance of Arizona,” used

racial epithets, and complained about the Diversity Office’s

outreach efforts. He concluded his call by stating: “The

White Aryan Resistance is growing in Scottsdale. There’s a

few white people who are standing up. Take care.” Based in

part on that voicemail, law enforcement initiated a multi-year

undercover investigation, which provided overwhelming

audio, video, forensic, and circumstantial evidence that

Mahon participated in the bombing of the Diversity Office.

After a multi-week trial, Mahon was convicted of

conspiracy to damage buildings and other real property by

means of explosive in violation of 18 U.S.C. §§ 844(i), (n)

(Count 1)1and malicious damage of a building by means of

1 Section 844(n) makes conspiring to violate § 844(i) a crime. We refer

to § 844(i) when addressing Counts 1 and 2.
6 UNITED STATES V. MAHON

explosive in violation of § 844(i) (Count 2). He received a

sentence of 40 years imprisonment.2

II. ANALYSIS

A. Standard of Review

We review de novo if there is sufficient evidence of the

interstate commerce element of an offense. United States v.

Garcia, 768 F.3d 822, 827 (9th Cir. 2014), cert. denied,

135 S. Ct. 1189 (2015). We consider the evidence in the light

most favorable to the prosecution and determine whether

“‘any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” United

States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en

banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)).

We review de novo a constitutional challenge to a statute. 

Garcia, 768 F.3d at 827.

B. The Diversity Office’s Nexus to Interstate Commerce

Mahon first argues that there was insufficient evidence

that the Diversity Office satisfied § 844(i)’s interstate

commerce requirement. A defendant is guilty of violating

§ 844(i) if he

maliciously damages or destroys, or attempts

to damage or destroy, by means of fire or an

2 Mahon also was convicted of 18 U.S.C. § 842(p)(2)(A), distribution of

information related to explosives (Count 3), and received a concurrent

sentence of 33 months on that count.
UNITED STATES V. MAHON 7

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[.]3

According to Mahon, the Diversity Office “was a municipal

government entity engaged in classic governmental

functions,” and thus could not possess the requisite interstate

commerce nexus under § 844(i). In so arguing, Mahon relies,

in part, on two cases: Jones v. United States, 529 U.S. 848

(2000), and United States v. Lamont, 330 F.3d 1249 (9th Cir.

2003). A review of those cases—as well as other cases

applying § 844(i)—confirms that the Diversity Office

satisfies the statute’s interstate commerce requirement.

Jones addressed if and when § 844(i) applied to a private

residence that did not actively engage in interstate

commerce—“a dwelling place used for everyday family

living,” and not a rental, “a home office or the locus of any

commercial undertaking.” Jones, 529 U.S. at 856, 859. The

Court set out a two-step inquiry to answer this question—first

“into the function of the building itself, and then a

determination of whether that function affects interstate

commerce.” Id. at 854 (internal quotation marks omitted). 

The Court stressed that the statute requires “active

employment for commercial purposes, and not merely a

3

18 U.S.C. § 841(b) defines “interstate commerce or foreign

commerce,” in relevant part, as “commerce between any place in a State

and any place outside of that State, or within any possession of the United

States (not including the Canal Zone) or the District of Columbia, and

commerce between places within the same State but through any place

outside of that State.”
8 UNITED STATES V. MAHON

passive, passing, or past connection to commerce.” Id. at

855.

Jones held that § 844(i) did not apply to the traditional

private home. The residence in Jones had only passive links

to interstate commerce: a mortgage, an insurance policy, and

the receipt of natural gas from sources outside Indiana. Id. at

855–56. Applying § 844(i) to a purely private home would

mean that “hardly a building in the land would fall outside the

federal statute’s domain,” as “[p]ractically every building in

our cities, towns, and rural areas is constructed with supplies

that have moved in interstate commerce, served by utilities

that have an interstate connection, financed or insured by

enterprises that do business across state lines, or bears some

other trace of interstate commerce.” Id. at 857.

Lamont addressed § 844(i)’s application to an “ordinary

church building” that was “used for religious purposes, and

not for other activities of a commercial or economic

character.” 330 F.3d at 1254. Recognizing the “peculiarity

of hunting for commerce in a house of worship,” the panel

reasoned that the church’s business was not commercial, but

“to provide spiritual guidance, comfort, and charity to its

members and to others who may wish to take advantage of its

services.” Id. at 1253, 1255. A church generally did “not

function in a manner that places it in any significant

relationship with commerce, let alone interstate

commerce. . . . Indeed, a church’s function and operations

could not be further removed from what we ordinarily

understand as commercial activity.” Id. at 1254–55.

Nor was there anything about the church’s activities in

Lamont that would bring it within § 844(i)’s jurisdictional

scope. Like the private residence in Jones, the church lacked
UNITED STATES V. MAHON 9

active involvement in interstate commerce—all of its

connections were passive: (1) it received gas from Canada,

(2) an out-of-state company insured it, (3) it purchased goods

from out of state, (4) it received funds from out-of-state

members, and (5) it received and distributed publications that

traveled interstate. Id. at 1250, 1253. These attenuated

connections to interstate commerce, like those in Jones, were

insufficient to satisfy § 844(i)’s requirement. Id. at 1255–56.

Jones and Lamont(as well as numerous other cases) teach

us that a building may qualify per se under § 844(i)’s

jurisdictional requirement if it is inherently commercial. A

church and a private residence, without more, are not such

buildings, but an apartment building used as rental property,

Russell v. United States, 471 U.S. 858, 862 (1985); Garcia,

768 F.3d at 829, and a restaurant, United States v. Serang,

156 F.3d 910, 913 (9th Cir. 1998), are.

Jones and Lamont also teach us that an intrinsically noneconomic building can qualify under § 844(i) if the building

actively engages in interstate commerce or activity that

affects interstate commerce, as there is no categorical

exclusion of any type of building. See Jones, 529 U.S. at 855

(“[Section] 844(i) excludes no particular type of

building. . . .”). As we have recognized, a place of worship

can have more than one function for § 844(i) purposes. 

United States v. Renteria, 557 F.3d 1003, 1008–10 (9th Cir.

2009) (holding that a synagogue’s operation of preschool

daycare center and gift shop were sufficient for § 844(i)

conviction, even though activities were located in a house of

worship); see also United States v. Grassie, 237 F.3d 1199,

1209-10 (10th Cir. 2001) (church activities can be both

religious and commercial); United States v. Terry, 257 F.3d

366, 369 (4th Cir. 2001) (“An activity can have both a
10 UNITED STATES V. MAHON

religious aspect and an economic one. We cannot close our

eyes to the commercial nature of an activity solely because

non-commercial considerations also underlie it.”); United

States v. Rayborn, 312 F.3d 229, 233 (6th Cir. 2002) (“For

purposes of the function analysis, the building’s function is

not limited to its primary use.”).

That an entity is not-for-profit or municipal in nature also

does not foreclose a finding that it is actively engaged in

interstate commerce. There is “[n]othing intrinsic to

the nature of nonprofit entities [that] prevents them

from engaging in interstate commerce.” Camps

Newfound/Owatonna, Inc. v. Town of Harrison, Me.,

520 U.S. 564, 585 (1997). Like non-profit and for-profit

entities, municipalities can “purchase goods and services in

competitive markets, offer their facilities to a variety of

patrons, and derive revenues from a variety of sources, some

of which are local and some out of State.” See id. at 585–86.

Although the reach of § 844(i) “is not coterminous with

the outer limits of Congress’s Commerce Clause power,” see

Lamont, 330 F.3d at 1251, many cases outside of the § 844(i)

context demonstrate the impact of tourism, events, and

visitors on interstate commerce. See Gulf Coast Hotel-Motel

Ass’n v. Miss. Gulf Coast Golf Course Ass’n, 658 F.3d 500,

505 (5th Cir. 2011) (“bringing out-of-state tourists to hotels

to play golf . . . falls squarely within the Supreme Court’s

Commerce Clause jurisprudence”); United States v. Taylor,

966 F.2d 830, 835-36 (4th Cir. 1992) (finding that a change

in betting laws would have an effect on interstate commerce,

in part, because it would stimulate the state economy by

attracting out-of-state tourists); Gibbs v. Babbitt, 214 F.3d

483, 493–94 (4th Cir. 2000) (acknowledging as interstate

commerce nexus the tourism associated with red wolf
UNITED STATES V. MAHON 11

recreational industry, including visitors attending “howling

events” and volunteers coming “from all around the

country”); 907 Whitehead St., Inc. v. Sec’y of U.S. Dep’t of

Agric., 701 F.3d 1345, 1351 (11th Cir. 2012) (holding that

there is a substantial effect on interstate commerce where a

“[m]useum invites and receives thousands of

admission-paying visitors from beyond Florida”; “it is

well-settled that, when local businesses solicit out-of-state

tourists, they engage in activity affecting interstate

commerce”).

Here, we need not decide whether the Diversity Office is

“inherently” a commercial enterprise (like a rental property

or a restaurant). Rather, we need determine only if the

Diversity Office actively engages in interstate commerce, or

activity that affects interstate commerce. See, e.g., Renteria,

557 F.3d at 1008–10; see also Rayborn, 312 F.3d at 234–35

(“church was actively employed in commercial activities” by

using radio broadcasts to increase travel from neighboring

states, hosting free events and concerts that people traveled to

from those states, and purchasing goods to host picnics and

breakfasts); Terry, 257 F.3d at 370–71 (operation of church

day care center sufficient for § 844(i) conviction, even though

activity was intrastate and did not turn a profit); United States

v. Gillespie, 452 F.3d 1183, 1188 (10th Cir. 2006) (operation

of gift shop and for-fee preschool within place of worship

constituted “‘active employment for commercial purposes’”).

The record demonstrates that the Diversity Office

regularly engaged in activities that affected interstate

commerce. Partneringwith numerous corporate sponsors and

local hotels, it planned, hosted, and supported events that

drew thousands of people to Scottsdale. It worked with a

national bureau to arrange for speakers (who were paid
12 UNITED STATES V. MAHON

thousands of dollars) to come to the city, and took

applications and payments from vendors to participate in

these events. And it employed several forms of media and a

dedicated phone line to publicize its events.

Unlike the passive participation described in Jones and

Lamont, the Diversity Office generated considerable activity

that affected interstate commerce—indeed, more so than the

activity described in numerous cases upholding a § 844(i)

conviction. Compare United States v. Craft, 484 F.3d 922,

927–28 (7th Cir. 2007) (temporarily vacant rental properties

were within § 844(i)’s scope); United States v. Laton,

352 F.3d 286, 300–01 (6th Cir. 2003) (fire station’s role in

fighting fires constituted active employment in interstate

commerce); United States v. Jimenez, 256 F.3d 330, 339 (5th

Cir. 2001) (as primary location of construction business,

family’s home office was within § 844(i)’s ambit).

We have little concern that our holding will convert the

destruction of any “municipal building” in the Ninth Circuit

into a federal crime. Any future § 844(i) prosecutions will be

reviewed under the same case-by-case analysis that the

Supreme Court and our precedent demand.4

C. Facial and As-Applied Challenges to § 844(i)’s

Constitutionality

Mahon next cites United States v. Lopez, 514 U.S. 549

(1995), and United States v. Morrison, 529 U.S. 598 (2000),

4 The government contends that even if there were an insufficient

interstate commerce nexus to the Diversity Office, Mahon’s convictions

could still stand. This opinion does not address those additional

arguments.
UNITED STATES V. MAHON 13

to argue that § 844(i) is facially unconstitutional or

unconstitutional as applied to this case. We have rejected

facial challenges to § 844(i) before, distinguishing it from the

Morrison and Lopez statutes, which lacked any jurisdictional

nexus to interstate commerce. See Garcia, 768 F.3d at

829-30. In Morrison and Lopez, the Court invalidated the

Violence Against Women Act and the Gun-Free School

Zones Act, respectively, because each exceeded Congress’s

authority; the statutes did not regulate economic activity and

they did not require that the activity be connected to interstate

commerce. Lopez, 514 U.S. at 551; Morrison, 529 U.S. at

613, 619.

Unlike the statutes in Morrison and Lopez, § 844(i) has

the necessary jurisdictional element. It requires that the

defendant damage or destroy property “used in interstate or

foreign commerce or in any activity affecting interstate or

foreign commerce” (emphasis added). Thus, we reject

Mahon’s facial challenge to the statute. See Garcia, 768 F.3d

at 829-30 (rejecting the facial and as-applied challenges to

§ 844(i)).

Mahon insists that even if the statute is facially

constitutional, it is unconstitutional as applied here. He

argues that the statute’s application encroaches into matters

traditionally reserved for the states and that the federal

commerce power cannot extend to the Diversity Office. This

argument is equally unavailing—that the property or the

crime might be traditionally local in nature does not foreclose

§ 844(i)’s application where the property possesses the

requisite nexus to interstate commerce. See United States v.

Gomez, 87 F.3d 1093, 1096 (9th Cir. 1996) (“Even though

arson is a crime that has traditionally been the responsibility

of the states, section 844(i) allows federal jurisdiction over
14 UNITED STATES V. MAHON

arson, but limits it to those instances involving property

connected to interstate commerce.”).

Here, despite being a local government entity, the

Diversity Office possessed the requisite nexus to interstate

commerce. Among many activities, it: (1) partnered with

national and international organizations to facilitate planning,

hosting, and organization of events that attracted thousands

of visitors and tourists to the city, (2) actively participated in

at least four different chambers of commerce to cultivate

relationships outside the city, (3) contracted with and paid for

keynote speakers (budgeting $15,000 for one speaker),

(4) advertised upcoming functions through various forms of

media, and (5) solicited and approved vendors who wanted to

sell food or provide entertainment at events. Given these

undisputed facts and the previous section’s analysis, Mahon’s

as-applied constitutional challenge is denied.

III. CONCLUSION

For the reasons discussed, Mahon’s challenges fail. The

Diversity Office had a sufficient nexus to interstate

commerce to support Mahon’s prosecution under § 844(i),

and his facial and as-applied contentions lack merit.

AFFIRMED.