FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANIEL RICHARD GARCIA,

Defendant-Appellant.

No. 12-10189

D.C. No.

2:11-cr-00290-LKK-1

OPINION

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, Senior District Judge, Presiding

Argued and Submitted

February 11, 2014—San Francisco, California

Filed September 18, 2014

Before: Richard C. Tallman and Johnnie B. Rawlinson,

Circuit Judges, and Marvin J. Garbis, Senior District

Judge.*

Opinion by Judge Rawlinson

* The Honorable Marvin J. Garbis, Senior District Judge for the U.S.

District Court for the District of Maryland, sitting by designation.
2 UNITED STATES V. GARCIA

SUMMARY**

Criminal Law

The panel affirmed a conviction for using a pipe bomb to

damage a vehicle and apartment building in violation of

18 U.S.C. § 844(i).

The panel rejected the defendant’s contention that there

was insufficient evidence that any damage to the apartment

building substantially affected interstate commerce, and that

the government therefore did not satisfy the Commerce

Clause jurisdictional element of § 844(i). The panel

concluded that nothing in United States v. Morrison, 529 U.S.

598 (2000), undermined the per se rule in Russell v. United

States, 471 U.S. 858 (1985), that damage to a rental

apartment building satisfies the jurisdictional provisions of

§ 844(i).

COUNSEL

TimothyE. Warriner, Sacramento, California, for DefendantAppellant.

Michael D. Anderson (argued) and Phillip A. Talbert,

Assistant United States Attorneys, Sacramento, California,

for Plaintiff-Appellee.

** 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. GARCIA 3

OPINION

RAWLINSON, Circuit Judge:

Appellant Daniel Garcia (Garcia) challenges his

conviction for using a pipe bomb to damage a vehicle and

apartment building in violation of 18 U.S.C. § 844(i). Garcia

contends that the government failed to present sufficient

evidence to satisfy the Commerce Clause jurisdictional

requirement of 18 U.S.C. § 844(i), because the government

failed to demonstrate that Garcia’s criminal conduct affected

interstate commerce. Garcia also maintains that the district

court erred in instructing the jury that damage to the rental

apartment building and vehicle met the jurisdictional

mandates, and that 18 U.S.C. § 844(i) is unconstitutional on

its face. We affirm.

I. BACKGROUND

A. Indictment

In a four-count indictment, Garcia was charged with

“maliciouslydamag[ing] and destroy[ing] and attempt[ing]to

damage and destroy, bymeans of an explosive, a building and

vehicle used in interstate commerce, and in an activity

affecting interstate commerce” in violation of 18 U.S.C.

§ 844(I). The indictment alleged that Garcia “knowingly

carr[ied] and use[d] a destructive device, to wit, a pipe bomb”

in violation of 18 U.S.C. § 924(c)(1)(A).1

 

1

 The other counts alleged in the indictment are not at issue on appeal.
4 UNITED STATES V. GARCIA

B. Garcia’s Motion To Dismiss The Indictment

Prior to trial, Garcia filed a motion to dismiss the

indictment. Garcia asserted that the government was unable

to satisfy the Commerce Clause jurisdictional requirements

of § 844(i) because there were no allegations that the

privately owned vehicle, a Chevrolet Tahoe SUV, was

utilized in interstate or foreign commerce by the vehicle’s

owner. The district court denied Garcia’s motion.

C. Garcia’s Proffered Interstate Commerce Jury

Instruction

During the jury instruction conference, Garcia proffered

an interstate commerce instruction providing that:

Used in interstate commerce means that a

vehicle or a building is used in an activity

substantially affecting interstate or foreign

commerce if the vehicle or building is actively

used for commercial purposes and the vehicle

or building does not merely have a passive,

passing, or past connection to interstate or

foreign commerce. A vehicle or building may

affect interstate commerce if it takes on

economic functions unrelated to every day,

non-commercial, private use. The fact that

the vehicle is manufactured in a different state

or is insured by an out-of-state company is

insufficient to trigger federal jurisdiction

under 844(i) or to fulfill the fourth element of

the offense.
UNITED STATES V. GARCIA 5

The district court rejected Garcia’s proffered instruction, and

instead instructed the jury that an apartment building “is used

in interstate commerce, or in an activity affecting interstate

commerce, if it contains rental units and is used as rental

property,” and that “[a] vehicle is used in interstate commerce

if it is transported from the state where it was manufactured

into another state.”

D. Trial Testimony and Verdict

At trial, Jantina Reed (Reed) testified that she, her

boyfriend, Kenneth Clark (Clark), and two children resided

in Garcia’s house for approximately two and a half months. 

Reed eventually moved from Garcia’s home because of

Garcia’s unusual behavior. According to Reed, Garcia would

“run around naked” and “stand in front of [her] doorway and

breathe hard . . .” Reed and her family moved to an

apartment complex in Fairfield, California, and did not

inform Garcia of their new address. However, Garcia came

to their apartment complex on two occasions in an attempt to

contact Reed and her family. During one incident, Reed

called the police, and Garcia was arrested.

Reed related that she had an altercation with Garcia when

she had a vehicle towed from his residence. As the vehicle

was being towed, Garcia threw several items on Reed’s car

and threatened, “tick, tick, boom, I’m going to blow this up

to pieces.” Garcia also allegedly told Reed, “you know I

have the means to do it, and if I can’t get it, I can go online

and get it. . . .” Reed did not hear from Garcia after the

incident.

On May 26, 2011, Reed fell asleep at approximately

11:30 or 11:45 p.m. Reed subsequently “heard a giant bang
6 UNITED STATES V. GARCIA

noise” and “there was fire all in their window.” Reed

grabbed her children and ran outside, where she saw flames

coming from her Chevy Tahoe SUV, which Reed had

borrowed from her mother.

Clark testified that he heard “a little noise like tink, tink,

and then boom” before the apartment’s window was engulfed

in flames. Clark went outside and extinguished the flames

around the vehicle with a fire extinguisher.

Officer Christopher Grimm of the City of Fairfield Police

Department responded to a police dispatch “just after 1:00

a.m. on May 27, 2011” to an apartment complex. When he

arrived, Officer Grimm noticed a blue Chevy Tahoe with

“what appeared to be a steel galvanized pipe below it and

several blue propane canisters around it.” Officer Grimm

“collected . . . pieces of cardboard around the vehicle,

approximately 20 feet or so in a kind of circular

circumference around the vehicle, along with several blue

propane canisters, the galvanized pipe and cap, and several

pieces of duct tape and other materials that were found in the

area.”

Officer Grimm also measured the time and distance

between the site of the explosion and a 24 Hour Fitness gym. 

According to Officer Grimm, it took “[a]pproximately five

minutes and two seconds” at 2:45 a.m. to drive the 2.2 miles

from the gym to the site of the explosion.

Detective William Shaffer of the City of Fairfield Police

Department investigated the components of the explosive

device. Detective Shaffer testified that the device was

attached to five Worthington brand propane cylinders – a

commonly available type of propane canister. Detective
UNITED STATES V. GARCIA 7

Shaffer related that the device was “a 2-inch by 12-inch piece

of galvanized steel pipe . . . with Mueller brand end caps on

both ends.” Detective Shaffer believed that the device

utilized smokeless or black powder, but he was unable to

recover any materials indicating how the device was

detonated. Detective Shaffer observed that the end cap had

a drill hole that may have served as “an ignition source into

the interior of the pipe.” Detective Shaffer did not recover

any timing devices or fuses.

Detective Shaffer also found damage from the explosion

to the nearby apartment building. According to Detective

Shaffer, there were impact marks approximately two to three

feet from the ground in the stucco wall near the children’s

bedroom. Detective Shaffer opined that the impact marks

were created by metal fragments from the pipe bomb or from

the propane cylinders.

Detective Shaffer observed that the pieces from a

cardboard box contained a model number. Detective Shaffer

determined that the cardboard box served as the container for

the pipe bomb and that the model number was for a “3,000

watt power inverter.”

Detective Shaffer also participated in the search of

Garcia’s residence. During the search, the officers found a

receipt for an AIMS 3,000 watt power inverter; a pipe bomb

wrapped in a sheet in the garage; and a set of gopher gassers

with fuses similar to the one on the pipe bomb. According to

Detective Shaffer, the pipe bomb found in Garcia’s garage

was similar to the one used in the apartment complex

explosion because both bombs were “constructed out of a

length of galvanized steel pipe, both of them had cast metal

end caps on each end, both of them had paper towel or some
8 UNITED STATES V. GARCIA

type of a paper wadding, both of them had gunpowder as a

filler or combustible material inside.”

Matthew Rainsberg (Rainsberg), a forensic chemist for

the Bureau of Alcohol, Tobacco, Firearms, and Explosives

(ATF), determined that the two pipe bombs contained similar

smokeless gunpowder, and that the fuse on the pipe bomb

found in Garcia’s garage was visually and physically similar

to the fuses on the gopher gassers. Although Rainsberg could

not conclusively determine if the fuses were the same, he

opined that the fuses were “visually and physically similar,

and . . . contain[ed] the similar fuse core powder.”

Tania Kapila, an ATF fingerprint specialist, testified that

Garcia’s latent fingerprints and palm print were found on the

gopher gasser control devices.

Robert Krause (Krause), a friend of Garcia’s, testified that

he drove Garcia to an apartment complex where Garcia

identified a ChevyTahoe as belonging to a friend. According

to Krause, Garcia complained that he had problems with

roommates who had taken “quite a few of his possessions.” 

Garcia indicated that the roommates were “a mother and

father and child . . .” Krause related that, a few weeks after

driving Garcia to the apartment complex, Garcia showed

Krause a pipe bomb that Garcia stored in an ice chest in his

garage. Garcia did not inform Krause what he intended to do

with the pipe bomb.

Leonard Duprez, a General Motors district manager for

after sales, testified that, based on the vehicle identification

number, the SUV damaged in the explosion was

manufactured in Jamesville, Wisconsin.
UNITED STATES V. GARCIA 9

Maricela Avila, a property manager, testified that the

apartment complex in which the explosion occurred

advertised apartment rentals online and that some of the

residents who signed lease agreements came from out of

state.

Sean Nichols (Nichols), the vice-president of sales for

Aims Power, testified that the cardboard box from the site of

the explosion resembled the outside box that Aims Power

utilized for shipping power inverters. According to Nichols,

Garcia purchased the only 3,000 watt power inverter that

Aims Power shipped to Fairfield, California. Nichols

confirmed that the product number on the cardboard box from

the explosion corresponded to the part number associated

with Garcia’s order.

Dan Gagnon (Gagnon), the regional loss prevention

manager for 24 Hour Fitness, reviewed Garcia’s membership

records for May 26–27, 2011. According to Gagnon, Garcia

checked into the 24 Hour Fitness on May 26, 2011, at

11:01:06 p.m. and checked in again at 12:51:12 a.m. on May

27, 2011. Gagnon testified that the fitness center did not

utilize a system reflecting when its members leave the

facility.

Shalimar Ramirez (Ramirez), the service manager for 24

Hour Fitness, provided Garcia’s check-in records pursuant to

a subpoena. In June, 2011, Ramirez also met with an

investigator from the Solano County Public Defender’s

Office and reviewed video surveillance of Garcia’s 11:00

p.m. check-in. The video did not reflect that Garcia left the

fitness center between 11:00 p.m. and 12:00 a.m.
10 UNITED STATES V. GARCIA

Frank Huntington (Huntington), a private investigator

appointed to assist Garcia, testified that he measured the

duration of two routes from the 24 Hour Fitness to the

apartment complex where the explosion occurred. 

Huntington estimated that one route took him

“[a]pproximately nine minutes and two seconds” at 11:45

a.m. during “[n]ormal daytime traffic . . .” The second route

took Huntington “approximately eight minutes and fifty . . .

seconds” at 1:50 p.m. during “normal daytime traffic.”

Huntington also tested the length of time needed for a

four-inch gopher gasser fuse to burn. Huntington estimated

that the fuses took from 12.6 seconds to 13.4 seconds to burn.

Garcia testified that, on May 27, 2011, he drove his

roommate’s car to the 24 Hour Fitness and checked in at

12:51 a.m. According to Garcia, he left the 24 Hour Fitness

at approximately 2:00 a.m. and “went directly home, had a

post-workout meal, got prepared to go to sleep, [and] made

sure [his] dog was fed . . .” Garcia estimated that it took him

approximately five to ten minutes to drive from the fitness

center to his home.

Garcia stated that, on May 26, 2011, he checked into the

fitness center at approximately 11:00 p.m. According to

Garcia, he lacked the energy to exercise and he left the fitness

center “approximately 15 minutes later.” He went home;

consumed “a power meal”; went to a restaurant for more

food; returned home to “[l]et the meal digest”; watched

television; took his dog for a walk; and then returned to the

fitness center. Garcia related that he left his home at 12:30

a.m. and arrived at the fitness center after purchasing energy

drinks at a nearby store.
UNITED STATES V. GARCIA 11

Garcia denied driving to the apartment complex that

evening or possessing a pipe bomb. According to Garcia, he

did not know who constructed the pipe bomb found in his

garage and he used the gopher gassers for a rodent problem. 

Garcia acknowledged that he purchased the Aims power

inverter and that he had an extensive background as an

electrician.

Garcia filed a motion for judgment of acquittal pursuant

to Federal Rule of Criminal Procedure 29, which the district

court denied. The jury found Garcia guilty of malicious use

of explosive materials in violation of 18 U.S.C. § 844(I). On

the verdict form, the jury indicated its finding that the

apartment building and the vehicle “were used in interstate

commerce or in an activity affecting interstate commerce[.]”

The district court sentenced Garcia to 420 months’

imprisonment and 60 months of supervised release. Garcia

filed a timely notice of appeal.

II. STANDARDS OF REVIEW

“We review de novo [Garcia’s] challenge to the

sufficiency of the evidence, including questions of statutory

interpretation.” United States v. Wright, 625 F.3d 583, 590

(9th Cir. 2010) (citations omitted).

“This court reviews the constitutionality of a statute de

novo.” Chamness v. Bowen, 722 F.3d 1110, 1116 (9th Cir.

2013) (citation omitted).

“We review the language and formulation of a jury

instruction for an abuse of discretion. However, when jury

instructions are challenged as misstatements of law, we
12 UNITED STATES V. GARCIA

review them de novo.” United States v. Cortes, 757 F.3d 850,

857 (9th Cir. 2014), as amended (citations, alteration, and

internal quotation marks omitted).

III. DISCUSSION

Relying on United States v. Lopez, 514 U.S. 549 (1995),

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

asserts that damage to the apartment complex did not satisfy

the Commerce Clause jurisdictional element of 18 U.S.C.

§ 844(i) because there was insufficient evidence that any

damage to the apartment building substantially affected

interstate commerce. We disagree, and conclude that the

Commerce Clause jurisdictional element for a conviction

pursuant to 18 U.S.C. § 844(i) was satisfied as discussed in

Russell v. United States, 471 U.S. 858 (1985), and United

States v. Gomez, 87 F.3d 1093 (9th Cir. 1996).

In Russell, the Supreme Court considered “whether

18 U.S.C. § 844(i) applies to a two-unit apartment building

that is used as rental property.” Russell, 471 U.S. at 858. The

Supreme Court observed that “reference [in 18 U.S.C.

§ 844(i)] to any building used in any activity affecting

interstate or foreign commerce expresses an intent by

Congress to exercise its full power under the Commerce

Clause.” Id. at 859 (alterations, footnote reference, and

internal quotation marks omitted). The Supreme Court held:

By its terms . . . the statute only applies to

property that is used in an activity that affects

commerce. The rental of real estate is

unquestionably such an activity. We need not

rely on the connection between the market for

residential units and the interstate movement
UNITED STATES V. GARCIA 13

of people, to recognize that the local rental of

an apartment unit is merely an element of a

much broader commercial market in rental

properties. The congressional power to

regulate the class of activities that constitute

the rental market for real estate includes the

power to regulate individual activity within

that class.

Id. at 862 (footnote references and internal quotation marks

omitted).

In Gomez, we consulted Russell to resolve the defendant’s

challenge to his conviction for arson. According to Gomez,

the prosecution failed to establish that the burned building

substantially affected interstate commerce, as required for a

conviction under 18 U.S.C. § 844(i). See Gomez, 87 F.3d at

1094. Although there was no testimony at trial as to any

specific interstate commerce connection, the burned building

was a six-unit apartment complex. See id. Gomez

maintained that the Supreme Court’s decision in Lopez

“reinterpreted the Court’s commerce clause jurisprudence,

and thereby undermined Russell’s per se rule that all rental

property affects commerce sufficiently enough to warrant

federal jurisdiction under section 844(i). . . .” Id.

In rejecting Gomez’s argument premised on Lopez, we

observed that in drafting § 844(i), Congress sought to reach

“those arsons that damage or destroy property that had been

used in interstate or foreign commerce or in any activity

affecting interstate or foreign commerce.” Id. at 1095

(citation and internal quotation marks omitted). We

interpreted the plain language of the statute as treating the

interstate commerce aspect of the crime separately from the
14 UNITED STATES V. GARCIA

crime of arson, with the interstate aspect of the crime being

totally dependent “on what the property had been used for (or

whether the property was moving in interstate

commerce). . . .” Id. at 1096. From that premise, we

formulated the “proper inquiry” as whether application of

§ 844(i) to the burning of the six-unit apartment complex

“regulates conduct that is commercial or economic in nature.” 

Id. Citing Russell, we held that “an apartment building

currently in use in the rental market is used in an activity

affecting interstate commerce. . . .” Id. (citations omitted). 

We explained that “[a]lthough one apartment building may

have no more than a de minimis effect on interstate

commerce, the local rental of an apartment unit is merely an

element of a much broader commercial market in rental

properties.” Id. (citation omitted). However, when

aggregated, the commercial market in rental properties

“undeniably has a substantial effect on interstate commerce.” 

Id. Therefore, applying § 844(i) to the aggregated

commercial market in rental properties “regulates conduct

that is within Congress’s commerce power.” Id. We

concluded that the jurisdictional requirement of § 844(i)

could be met by a showing that the damaged building was

being used as a rental property. Such use “per se

substantially affects interstate commerce. . . .” Id. In sum,

we answered the “proper inquiry” by ruling that application

of § 844(i) to the arson of the six-unit apartment complex

regulated conduct that was commercial or economic in

nature, and therebywithin the reach of Congress’s Commerce

Clause powers. Id.

Garcia contends that Gomez and Russell are no longer

binding precedent because those decisions were undermined

by the Supreme Court in Morrison. In Morrison, the

Supreme Court held that Congress exceeded its constitutional
UNITED STATES V. GARCIA 15

authority in passing the Violence Against Women Act

because “[g]ender-motivated crimes of violence are not, in

any sense of the phrase, economic activity. . .” 529 U.S. at

613. However, we have consistently distinguished

Morrison’s holding as limited to non-economic activity. See

Voggenthaler v. Maryland Square LLC, 724 F.3d 1050, 1060

(9th Cir. 2013), as amended (“The Supreme Court’s decisions

in Lopez and Morrison concerning non-economic activity are

not relevant here, for the Court’s holding in both depended

upon the conclusion that the activities sought to be regulated

were not commercial activities.”) (citations omitted); United

States v. McCalla, 545 F.3d 750, 754 (9th Cir. 2008)

(distinguishing Morrison and Lopez because “the statutes in

question had no connection to commerce or economic

enterprise”) (citation omitted); United States v. Latu,

479 F.3d 1153, 1156 (9th Cir. 2007) (holding that “[u]nlike

the statutes at issue in Lopez and Morrison, [18 U.S.C.]

§ 922(g) contains a jurisdictional element, specifically

requiring that [the defendant’s] possession be in or affecting

commerce. The presence of the jurisdictional element

satisfies the Commerce Clause concerns articulated in

Lopez. . . .”) (citation and internal quotation marks omitted);

United States v. Clark, 435 F.3d 1100, 1115 (9th Cir. 2006)

(holding that “[t]he essential economic character of the

commercial sex acts regulated by [18 U.S.C.] § 2423(c)

stands in contrast to the non-economic activities regulated by

the statutes at issue in Lopez and Morrison”) (citations

omitted).

In contrast to the statute invalidated in Morrison, § 844(i)

possesses the requisite jurisdictional element missing in

Morrison, as it specifically requires that the defendant

damage or destroy “any building, vehicle, or other real or

personal property used in interstate or foreign commerce or
16 UNITED STATES V. GARCIA

in any activity affecting interstate or foreign commerce . . .” 

18 U.S.C. § 844(i). As the Supreme Court explained in

Russell, “[t]he congressional power to regulate the class of

activities that constitute the rental market for real estate

includes the power to regulate individual activity within that

class.” 471 U.S. at 862 (footnote reference omitted). 

Considering our precedent distinguishing Morrison and

considering Russell’s holding that § 844(i) was validly

enacted pursuant to Congress’s Commerce Clause power, we

reject Garcia’s facial and as-applied challenges to the statute. 

See Russell, 471 U.S. at 859 (“The reference to any building

used in any activity affecting interstate or foreign commerce

expresses an intent by Congress to exercise its full power

under the Commerce Clause.”) (alterations, footnote

reference, and internal quotation marks omitted); see also

Gomez, 87 F.3d at 1096 (“According to the plain language of

the statute, the interstate commerce aspect of the crime is

distinct from the arson-it depends solely on what the property

had been used for (or whether the property was moving in

interstate commerce). . . .”).2

Garcia’s assertion that Morrison undermined Russell’s

analysis premised on the aggregate effect of a defendant’s

criminal conduct on interstate commerce is unavailing. The

Second Circuit’s opinion in United States v. Logan, 419 F.3d

172 (2d Cir. 2005) is instructive on this point. In Logan, the

Second Circuit reviewed an arson conviction stemming from

2 Russell’s holding that 18 U.S.C. § 844(i) was constitutional under the

facts of that case completely undermines Garcia’s facial challenge. See

United States v. Peeples, 630 F.3d 1136, 1138 (9th Cir. 2010) (“A facial

challenge to a legislative Act is, of course, the most difficult challenge to

mount successfully, since the challenger must establish that no set of

circumstances exists under which the Act would be valid.”) (citation

omitted). 
UNITED STATES V. GARCIA 17

the burning of a rented fraternity house on a university

campus. The defendant was convicted of violating 18 U.S.C.

§ 844(n), “which criminalizes conspiracy to commit arson on

property that is used in interstate commerce or in any activity

affecting interstate commerce. . . .” Id. at 179. The Second

Circuit initially observed that the Supreme Court cited

Russell with approval in Jones v. United States, 529 U.S. 848

(2000), a case decided post-Morrison. See Logan, 419 F.3d

at 180.3 The Second Circuit pointed out that the Supreme

Court distinguished the owner-occupied residence at issue in

Jones from the rental property at issue in Russell. See id.

The Second Circuit also noted that the Supreme Court

recently reaffirmed in Gonzales v. Raich, 545 U.S. 1 (2005),

Congress’s power to regulate purely local activity if that local

activity is part of an economic chain of activities substantially

affecting interstate commerce. See id. The Second Circuit

emphasized that this was the same rationale used in Russell

to uphold “federal regulation of local properties involved in

the nationwide class of activities that constitute the rental

market for real estate.” Id. (citation and internal quotation

marks omitted). Moreover, the Second Circuit concluded that

“even if we had reason to believe that Russell’s holding is

questionable in light of Morrison and Lopez, it has not been

expressly overruled by the Supreme Court. Courts of

3

In Jones, the Supreme Court considered “whether arson of an

owner-occupied private residence falls within § 844(i)’s compass” and

held that “an owner-occupied residence not used for any commercial

purpose does not qualify as property used in commerce or

commerce-affecting activity; arson of such a dwelling, therefore, is not

subject to federal prosecution under § 844(i). . . .” 529 U.S. at 850–51

(internal quotation marks omitted). In support of its holding, the Supreme

Court observed that Russell involved rented real estate, whereas in Jones

“the owner used the property as his home, the center of his family life. He

did not use the residence in any trade or business.” Id. at 856.
18 UNITED STATES V. GARCIA

Appeals are therefore obligated to follow Russell until the

Supreme Court itself sees fit to reconsider that decision. . . .” 

Id.

Although the Second Circuit addressed the conspiracy

subsection of the statute in Logan, its reasoning is

nevertheless instructive because the conspiracy subsection

incorporates the other offenses defined in § 844(i). See

18 U.S.C. § 844(n) (punishing “a person who conspires to

commit any offense defined in this chapter”). Based on our

precedent distinguishing Morrison and Lopez, we also agree

with the Second Circuit that those cases did not undermine

Russell’s holding that damage to a rental apartment building

satisfies the jurisdictional requirements of 18 U.S.C. § 844(i). 

Finally, we have expressed a similar reluctance to abandon

Supreme Court precedent on the premise that a subsequent

case has effected an implicit overruling of earlier Supreme

Court precedent. See Lacano Inv., LLC v. Balash, No. 13-

35854, – F.3d –, 2014 WL 4236461, at *5 (9th Cir. Aug. 28,

2014) (expressing that “we must follow [a Supreme Court

opinion] which directly controls, leaving to the Supreme

Court the prerogative of overruling its own decisions”)

(citation and alteration omitted).

Applying Russell and Gomez, we conclude that there was

sufficient evidence to satisfy “Russell’s per se rule that all

rental property affects commerce sufficiently enough to

warrant federal jurisdiction under section 844(i). . . .”4

4 Although there is a serious question as to whether the government

presented sufficient evidence that the Chevrolet Tahoe SUV was used in

interstate commerce, see United States v. Geiger, 263 F.3d 1034, 1037

(9th Cir. 2001) (holding that “the ‘used in’ qualification is most sensibly

read to mean active employment for commercial purposes, and not merely
UNITED STATES V. GARCIA 19

Gomez, 87 F.3d at 1094. The government presented evidence

that the apartments were leased; the apartment building was

advertised on the internet; and many of its residents were

from out-of-state. The government also presented evidence

that the apartment building was damaged by Garcia’s use of

an explosive device. Thus, the government satisfied the

jurisdictional provisions of 18 U.S.C. § 844(i), and the district

court properly denied Garcia’s motion for a judgment of

acquittal.

IV. CONCLUSION

We conclude that nothing in Morrison undermined

Russell’s per se rule that damage to a rental apartment

building satisfies the jurisdictional provisions of 18 U.S.C.

§ 844(i). Morrison did not overrule Russell or Gomez in any

way, and we are required to apply this binding precedent in

affirming Garcia’s convictions. The government presented

sufficient evidence that Garcia’s use of an explosive device

a passive, passing, or past connection to commerce”) (citation, alteration,

and internal quotation marks omitted), we need not reach this issue. 

According to the verdict form, the jury determined that both the apartment

building and the vehicle were “used in interstate commerce or in an

activity affecting interstate commerce[.]” We affirm Garcia’s conviction

based on Russell’s per se rule that damage to a rented apartment building

satisfies 18 U.S.C. § 844(i)’sjurisdictional requirement irrespective ofthe

jury’s finding concerning the vehicle. We also do not address Garcia’s

challenge to the district court’s jury instruction concerning the vehicle

because the district court properly instructed the jury that an apartment

building “is used in interstate commerce, or in an activity affecting

interstate commerce, if it contains rental units and is used as rental

property.”
20 UNITED STATES V. GARCIA

damaged an apartment building that was used in interstate

commerce.

AFFIRMED.