F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

D A N I E L R I C H A R

D G A R C I A , D efendant-Appellant

. No. 12-10189

D.C. No. 2:11-cr-00290-L KK-1

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California L awrence K. Karlton, Senior District J udg e, Presiding

Arg ued and Submitted F ebruary 11, 2014—San F rancisco, California

F iled September 18, 2014

B efore: Richard C. Tallman and J ohnnie B

. Rawlinson, Circuit J udg e s, and Marvin J . Garbis, Senior District

J udg e. *

Opinion by

J udg e Rawlinson

* T h e Ho n o rab l e M a r v i n J

. Garb is, Sen io r D istrict J u d g e f o r th e U .S. District Co u

rt f o r th e District o f

Mary l an d , sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. G A

R C I A 2

SUMMARY * *

Crim inal Law

The p anel a ffirmed a conviction for u sing a p ipe bomb to damag e a vehicle and apartment b uilding in v i o l a t ion o f 18 U.S.C. § 844(i).

The panel rejected t h e defendant’s c ontention that there

w as insufficient evidence that any damag e to the apart m e n t building substantially a ffected interstate commerce, and that the g o v e r n m ent therefore did not satisfy the Commerce Clause jurisdict i o n a l element of § 8 44(i). T h e panel concluded that nothing in United States v. Morrison
, 529 U.S. 598 (2000), undermined the per se rule in Russell v

. Unite d States
, 4 71 U.S. 858 ( 1985), that damag e to a re ntal apartme n t building satisfies the jurisdictional p r ovisions o f § 844(i).

COUNSEL

Timothy E. W arriner, Sacramento, California, for D efendantAppellant.

Michael D. A nderson (arg ued) and Phillip A. Talbert, Assistant United States Attorney s, Sacramento, California, for Plaintiff-Appellee.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. G A

R C I A 3

OP INION

RAW L I NSON, Circuit J udg e:

Appellant Daniel Garcia (Garcia) challeng es his

c o n v i c t i on for using a pipe bomb to d amag e a vehicle a nd apartment building in violation of 18 U.S.C. § 844(i). Garcia contends that the g o vernmen t fa iled to present sufficient evidence to satisfy the Commerc e Clause jurisdictional requirement of 18 U.S.C. § 84 4(i), because the g overnment failed to demonstrate that Garcia’s criminal c onduct affected interstate commerce. Garcia also maintain s t h at the district
court erred in instructing the jury that damag e to the rental apartment b u ilding and vehicle met the jurisdictional mandates, and that 18 U.S.C. § 844(i) is unconstitutional on its face. W e affirm.

I. BACK G ROUND

A. Indictm ent

I n a four-c o u nt indictment, G arcia was charg ed with “maliciously d amag [ ing ] and d e s t roy [ ing ] and attempt[ ing ] to damag e and d estroy , b y means of an ex plosive, a building a nd vehicle used in interstate commerce, and in a n activity affe c t i n g interstate c ommerce” in violation of 18 U .S.C. § 844(I )

. T he indictment alleg ed that Garcia “knowing ly carr[ ied] and u se[ d] a destructive device, to wit, a pipe bomb” in violation of 18 U.S.C. § 924(c)(1)(A). 1

1 T h e o th er co u n ts alleg ed in th e in d ictm en t are n o t at issu e o n ap p eal.U N I T E D S T A T E S V

. G A

R C I A 4

B. G arcia’s Motion To Dism iss The Indictm ent

Prior to trial, Garcia filed a motion to di s m i s s the indictment. Garcia a sserted that the g overnment w a s unable
to satisfy the Commerce Clause jurisdictional require m ents of § 8 44(i ) b e c a u se there were n o alleg ations that the privately owned vehi c l e, a Chevrolet Tahoe SUV, was utiliz ed in inte r s tate or foreig n commerce by the vehicle’s owner. The district court denied Garcia’s motion.

C. G arcia’s P rof

fered Interstate Com m erce Jury Instruction

During the jury instruct i on conference, Garcia p roffered an interstate commerce instruction providing that:

Used in interstat e c o mmerce means that a

v ehicle or a building is used in an acti v i t y substantially affecting interstate or foreig n

commerce if the vehicle or building is actively used for commercial purposes and the vehicle

or building does no t merely have a passive,
p a ssing

, or past connection to interstate o r foreig n commerce. A vehicle or building may affect inters t a t e commerce if it takes on economic functions unrel a ted to every day

, non-commercial, private u se. The f ac t that the v ehicle is manufactured in a different state

or is i n sured by an out-of-state company is insufficient t o trig g er federal jurisdiction under 844(i) or to fulfill the f ourth element o f the offense.U N I T E D S T A T E S V

. G A

R C I A 5

The district court rejected Garcia’s proffered instruction, a nd instead instructed the jury that an a partment building “is used in interstate commerc e , o r in an activity affecting interstate
commerce, if it contains ren t a l units and is u sed as rental property ,” and that “[ a ] vehicle is used in interstate commerce if it is transported fr o m t h e state where it was manufactured into another state.”

D. Trial Testim ony and Verdict

At trial, J antina Reed (Reed) testi f i e d t hat she, her boy friend, Kenneth Clark (Clark), and two chil d r e n resided in Garcia’s house for approx imately two and a h a l f months. Reed even t ually moved from G arcia’s home because o f Garcia’s unusual behavior. According to Reed, G arcia would “run around naked” and “ stand in f ront of [ her] doorway a

nd breathe h a

rd

. . . ” Reed and her family m o v e d t o an apartment complex in F a irfield, Calif o rnia, a nd did not inform G arcia of their new address. H o w e v er , Garcia came to their apartment c o mplex on two occasions in an attempt to

c o n tact Reed and her family

. During one incident, R e e d called the police, and Garcia was arrested.

Reed related that she had an altercation with Garcia when she had a vehicle towed f r o m his residence. As the vehicle

was being towed, Garcia threw several items o n R e ed’s c ar and thr e a t e n e d

, “ tick, tick, boom, I ’m g oing to blow this up to pieces.” Garcia also alleg edly told Reed, “ y o u k now I have the means to do it, an d if I can’t g et it, I can g o online and g et i t

. . . .” Reed did not hear from Garcia after the incident.

O n May 26, 2011, Reed fell asleep at approx imat el y 1 1 :30 or 11:45 p.m. Reed subsequently “heard a g iant b an gU N I T E D S T A T E S V

. G A

R C I A 6

noise” and “there was fire al l i n t h eir window.” Reed
g rabbed her children and ran outside, where she saw flam e s coming from her Chevy T ahoe SUV, whic h R e e d h ad borrowed from her mother.

Clark testified that he heard “a little noise like tink, tink, and then boom” before the a partment’s window was eng ulfed in flames. Clark w ent o u tside and ex ting uished th e f lames around the vehicle with a fire ex ting uisher.

Officer Christopher Grimm of the City of F a irfield Police Department responded to a police dispatch “jus t af t e r 1:00

a.m. on May 2 7
, 2 0 1 1” to an apartment complex

. W hen he arrived, Off

i cer Grimm noticed a blue Chevy Tahoe with “what appeared to be a steel g alva n i z e d pipe below it a nd several blue propane canisters arou n d it.” Officer Grimm “collected

. . . pieces of cardbo a rd around the vehicle,
approx imately 20 f

eet or so in a kin d o f circular circumference around the vehicle, a long with several b lue
propane canisters, the g alvaniz ed pipe a n d c ap, and several pieces of duct tape a

n d other materials that were found in the area.”

Officer G rimm a lso measured the time and d istance between the site o f the e x plosion and a 24 Hour F itness g y m. According to Officer Grimm, it took “[ a] pprox imately five minutes and two seconds” at 2:45 a.m. to drive the 2.2 miles from the g y

m to the site of the ex plosion.

Detective W illiam Shaffer of the City of F airfield Police Department investig ated the c omponents of the e x plosive device. Detective Sha f f e r t estified that the device was attached to f

ive W orthingt o n b r and propane cy linders – a commonl y available ty

pe of propane canister. DetectiveU N I T E D S T A T E S V

. G A

R C I A 7

Shaffer related that the device w as “a 2-inch by 12-inch piece of g alvaniz e d steel pipe

. . . with Mueller brand e nd caps on both ends.” Dete ctive Shaffer believed that the device utiliz ed smokeless or black powder, but he was una b le to

recover a

ny materials indicating how the devi c e was detonated. Detective S haffer observed that the e nd cap h ad

a drill hole tha t m a y have served a s “an ig nition source into the interior of the pipe.” D etective Shaff e r did not r ecover any timing devices or fuses.

Detective Shaffer also found damag e from the ex p losion
to the nearby apartment buildin g. A c c ording to Detective Shaffer, there were impact marks approx imately two to three f e et from the g round in the stucco wall near the children ’s bedroom. Detective Shaffer o p i ned that the impact marks

were created b y metal frag ments from the pipe bomb o r from the propane cy

linders.

Dete c tive 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 o f Garcia’s r es i d en c e. During the search, the officers found a receipt for an AI MS 3,000 watt power inverter; a pipe bomb wrapped in a sheet in the g arag e; and a set of g opher g assers with fuses similar to the one on the pipe bomb. According to Detective Shaffer, the pipe b omb found in Garcia’ s g arag e

was similar to the one used in the apar tment c omplex

ex p losion because both bombs were “constructed out o f a leng th of g alvaniz ed steel pipe, both o f them had cast metal end caps on each end, both of them had paper towel or someU N I T E D S T A T E S V

. G A

R C I A 8

ty pe of a paper wadding

, both of them had gu n powder as a filler or combustible material inside.”

Matthew Rainsberg (Rainsberg )

, a forensic chemist for
t h e B u reau o f Alcohol, Tobacco, F irearms, and Ex plosi v e s (ATF ), d etermined that the two p ipe bombs contained similar smokeless g unpowder, a

nd that the fus e o n the p ipe bomb found in Garcia’s g arag e was visually and p hy sically similar
to the fuses on the g opher g assers. Althoug h Rainsberg could
not conclusively determine if the fuses were the same, he opined that the fuses were “visually and phy sically similar, and . . . contain[ ed] the similar fuse core powder.”

Tania Kapila, an ATF f

ing erprint specialist, testified that Garcia’s latent fing erprints and palm print were found on the
g opher g asser control devices.

Robert Krause (Krause), a f riend of Garcia’s, testified that he d rove Ga r c i a to an apartment complex where Garcia identified a Chevy Tahoe as b elong ing to a friend. A ccording
to Krau s e, Garcia complained that he had problems with
roommates who had taken “quite a f ew of h i s p o s s essions.” Garcia indicated that the roommates were “a mother a nd father and child

. . .” Krause related that, a few weeks a fter driving G arcia to the apartment complex

, Garcia showed Krause a pip e bomb that Garcia stored in an ice chest in his
g arag e. Garcia did n ot inform Krause what he intended to do with the pipe bomb.

L eonard Duprez
, a General Motors district manag er for after sales, testified that, based on the vehicle identification number, the SUV damag ed in the ex plosion was manufactured in J amesville, W isconsin.U N I T E D S T A T E S V

. G A

R C I A 9

Maricela Avila, a property ma nag er, testified that the apartment complex in which the e x plosion occurred advertised apartment rentals online and that so m e o f the residents who sig ned lease ag reements came from ou t o f
state.

Sean Nichols (Nichols), the v ice-pres i d e nt of sales for Aims Power, testified that the cardboard box from the site o f the ex plosion resembled the outside box that Ai m s P o wer utiliz ed for shipping power inverters. According to N ichols, Garcia purchased the only 3,000 watt power inverter that Aims Power shipped to F airfield, California. Nichols confirmed that the product number on the cardboard box from the ex p losion correspond ed to the part number associated with Garcia’s order.

Dan Gag non (Gag non)

, the reg ional loss prevention
manag er for 24 Hour F itness, reviewed Garcia’s membership records for May 2 6 –27, 2 011. According to Gag non, Garcia checked into the 24 Ho u r Fi tness on May 26, 2011, at 11:01:06 p.m. and checked in a g ain at 12:51:12 a .m. on May 27, 2011. Gag non testified that the fitness center d id not utiliz e a sy stem reflecting when its members leave the facility

.

Shalimar Ramirez ( Ramirez ), the service manag er for 24 Hour F itness, p rovided Garcia’s c h eck-in records pursuant to

a subp o e n a

. I n J une, 2011, Ramirez also met with an investig ator from the Solano County Pu b l ic Defender’s Office and revie w ed video surveillance of Garcia’s 11:00
p.m. check-in. The v ideo d id not reflect that Garcia left the fitness center between 11:00 p.m. and 12:00 a.m.U N I T E D S T A T E S V

. G A

R C I A 10

F rank Hunting ton (Hunting ton), a private investig ator

a p p o i nted to a ssist Garcia, testified that he measured t h e duration of two routes from the 2 4 Hour F it n e s s to the apartment c o m p l e x wh e re t h e e x p l o s i o n o ccurred. H u n t i n g t o n e s t i m a t e d t h a t o n e r o u t e t o o k h i m “[ a] pprox imately nine minutes a n d t wo seconds” at 11:45

a.m. d u ring “[ n ] ormal day

time traffic

. . .” The second route took Hunting ton “approx imately eig ht minut es a nd fifty

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

time traffic.”

Hunting ton also tested the leng th of time nee d e d f or a four

- i n c h g opher g asser fuse to b urn. Hunting ton e stimated that the fuses took f

rom 1 2 .6 seconds to 13.4 seconds to burn.

Garcia testified th at , o n May 2 7, 2011, he drove his roommate’s c ar to the 24 Ho u r F itness and checked in at 12:51 a.m. According

to Garcia, he left the 24 Hour F itness
at approx imately 2 :00 a.m. a n d “went d i r e ctly home, h ad a post-workout meal, g ot prepared to g o t o s l e e p , [ and] made

sure [ his] dog was f

ed

. . .” Garcia estimated that it took him
approx imately five to ten minutes to d r i ve from the f itness center to his home.

Garcia stated that, on May 26, 2011, he checked into the f itness center at approx imately 11:00 p.m. According to Garcia, he lacked the energ y to ex ercise a nd he left the f

itness
center “approx imately 1 5 mi n u tes later.” He went home;

co n sumed “ a power meal”; went to a restaurant for more food; returned home to “[ l] et the mea l dig est”; w atched television; took his dog for a w alk; a n d 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 energ y drinks at a nearby store.U N I T E D S T A T E S V

. G A

R C I A 11

Garcia denied driving to the a partment compl ex that evening o r possessing a pipe bomb. According to G arcia, he did not know who constructed the pipe bomb f ound in his
g arag e and he used the g opher g assers for a rodent problem. Garcia acknow l edg ed that he purchased the Aims power inverter a n d t h at he had an ex tensive backg round as an electrician.

Garcia f i l ed a motion f

o r judg ment of acquittal pursuant to F ederal Rule of Criminal Procedure 29, which the district
court denied. The jury

found Garcia g uilty of malicious use of ex plosive materials in violation of 18 U.S.C. § 844(I ). On the verdict form, the jury indic a t e d its finding that the apartment building and the vehicle “were used in intersta t e

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

The dis t r i c t court sentenced Garcia to 420 months’ imprisonment and 60 months of supervi s e d release. Garcia filed a timely

notice of appeal.

II. STANDARDS OF REVIEW

“W e review de novo [ G a r c i a’s] challeng e to the sufficiency of the evidence, including questions o f statutory interpretation.” United States v

. W right

, 625 F .3d 583, 590 (9th Cir. 2010) (citations omitted).

“This court reviews the constitutionality o f a s t at ute de

novo .” Chamn ess v. Bowen
, 722 F .3d 1110, 1116 (9th Cir. 2013) (citation omitted).

“W e review the lang uag e and f o r m u l a tion o f a jury i n s t r u c tion for an abuse of discretion. However, when jury instruc t i o n s are challeng ed as misstatements of law, weU N I T E D S T A T E S V

. G A

R C I A 12

review them de novo .” United S tates v. Cortes
, 757 F .3d 850, 857 (9th Cir. 2014), as amended (c i t a t i ons, alteration, a nd internal quotation marks omitted).

III. DISCUSSION

Rely ing on United States v. Lopez , 514 U.S. 549 (1995), and U nited States v. M

orrison
, 5 29 U .S. 598 (2000)

, G a rcia
asserts that damag e to the a p a r tment complex did not satisfy
t h e Commerce Clause jurisdictional element o f 1 8 U.S

. C

. § 8 4 4(i) because there w as ins ufficient evidence that any damag e to the apartment building substantially affected interstate commerce. W e disag ree, and conclude that the Commerce Clause jurisdictional element f or a conviction
pursuan t to 18 U.S.C. § 844(i) was satisfied as discussed in Russell v. United States
, 4 71 U.S. 8 5 8 ( 1985), and United States v. Gomez , 87 F

. 3d 1093 (9th Cir. 1996).

I n R u s s ell

, the Supreme Court considered “whether 18 U.S.C. § 844(i) applies to a two-uni t a p a r t ment building that is used as rental property

. ” Russell

, 4 71 U.S. at 858. The Supreme Court observed that “reference [ in 1 8 U

. S .C. § 844(i)] to any building u sed in any activity affecting interstate or foreig n commerce ex presses an in t e n t b y Cong r ess to ex ercise its full power under the Commerce Clause.” Id. at 859 (alterations, f ootnote reference, a

nd internal q uotation marks o mitted). The Supreme Court held:

B y its terms

. . . th e s t a tute only applies to property that is used in an activity that affects

commerce. The r e ntal of real e state is unquestionably such an activity

. W e need not rely on the connection between the market for residential units and the interstate movementU N I T E D S T A T E S V

. G A

R C I A 13

of people, to r ecog niz e that the local rental o f

an apartment unit is merely an element of a much broader commercial mar ket in rental properties. The cong ressiona l power to reg ulate the class o f a c tivities that constitute the r ental market for r e al estate includes the
power t o r eg u late individual activity within that class.

Id. at 862 ( f

ootnote references and internal quotation marks omitted).

I n Gomez
, we consulted Russell to resolve the defendant’s challeng e to his c onviction for arson. According to Gomez
, the pro s e cution f

ailed to e stablish that the b urned building substantially affected interstate commerce, as required for a conviction under 18 U .S.C. § 844(i). See Gomez , 87 F .3d at 1094. Althoug h there was no testimon y a t t r i a l as to any specific interstate commerce connection, the burned building

was a six -unit apartm ent complex

. See id. Gomez maintained that the Supreme Court’s decision in Lopez “reinterpreted the Court’s commerce claus e jurisprudence, and thereby undermined Russ ell ’s per se rule that all rental property affects commerce sufficiently enoug h to warrant federal jurisdiction under section 844(i). . . .” Id.

I n rejecting Gomez ’s arg ument premised on Lopez
, we ob s e r v ed that in drafting § 844(i), Cong ress soug ht to reach “those arson s t h a t damag e or destroy property that had been used in interstate or f

o reig n commerce or in any activity affecting interstate or foreig n commerce.” Id. at 1 0 95 ( citation and internal quotation marks omitted). W e interpreted the p l a i n l ang u ag e of the statute as treating the i n terstate c ommerce aspect of the crime separately f rom t h eU N I T E D S T A T E S V

. G A

R C I A 14

crime of a

rson, with the interstate aspect of the crime be ing totally dependent “on w hat the property had been used for (or

w h e t h e r t h e p r o p e r t y w a s m o v i n g i n i n t e r s t a t e commerce).

. . .” Id. at 1096. F r om that premise

, w e formulated the “proper i n quiry ” as whether application o f § 844(i) to the burning o f t h e six -unit apartment c omplex “reg u lates conduct that is commercial or economic in nature.” Id. C i t i n g Russell

, we held that “an apartment building currently in use in the rental market is used in an activity affecting interstate commerce.

. . .” Id. (cit a t i o n s omitted). W e ex p lained th a t “ [ a] lthoug h one apartment b u ilding may have no more than a de minimis effect on interstate commerce, the local rental of an apartment unit is merely an element o f a much broader commercial market in rental properties.” Id. ( c i tation o mitted). However, when
ag g r eg ated, the commercial market in rental properties “undeniably has a substantial effect on interstate commerce.” Id. There fore, a

pply ing § 844(i) to the a g g reg ated commercial market in r ental properties “reg ulates conduct that is within Cong ress’s c o mmerce power.” I d. W e concluded that the jurisdictional requir e ment of § 844(i)

co u l d b e met by a showing that the damag ed building was b e i n g used as a r ental property

. Such u se “ per s e substantially affec t s i n t erstate commerce.

. . . ” Id. I n sum,

we answered the “proper i n q u i r y ” b y ruling that a pplication of § 844(i) to the arson of the six -unit apartment c omplex
reg ulated conduct that was commercial or econom i c in nature, a nd thereby within the reach of Cong ress’s Commerce Clause powers. Id.

Garcia contends that Gomez and Russell a re n o long er binding precedent because those decisions were undermined b y t h e Supreme Court in Morrison

. I n Morrison
, the Supreme Court held that Cong ress ex ceeded its constitutionalU N I T E D S T A T E S V

. G A

R C I A 15

authority in passing the Violence Ag ainst W o m e n Act because “[ g ] ender-motivated c r imes of violence are not, in
any sense of the phrase, economic a ctivity

. . .” 529 U.S. at 613. However, w e 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 a mended (“The Supreme Court’s decisions in Lopez and M

orrison concerning non-economic activity a re not relevant h e r e , for the Court’s holding in both depended
upon the c onclusion that the activities soug ht to be r eg ulated

were n ot c ommercial activities.”) (citations omitted); United States v. McCalla

, 545 F .3d 750, 754 ( 9 th Cir. 2 008) (disting uishing Morrison and Lopez because “ the statutes in question had no connection to commerce or economic enterprise”) (citation o mitted); United States v. Latu
, 479 F .3d 1153, 1156 (9th Cir. 2007) (holding that “ [ u ] n like the statutes at issue in Lopez an d M o r r i son , [18 U.S.C.] § 922(g ) c ontains a jurisdictional e l e m ent, specifically requiring that [the defendant’s] possession be in or affecting

commerce. The presence of the jurisdictional element satisfies the Comme r c e Clause concerns articulated in Lopez

. . . .”) (citation and internal quotation marks omitted); United S tates v

. Clark

, 435 F

. 3 d 1 100, 1115 (9th Cir. 2 006) ( h o l ding that “[ t] he essential economic character of t h e commercial sex acts reg ulated by [ 1 8 U

. S

. C.] § 2423(c) stands in contrast to the non-economic activities reg ulated b y the sta t utes at issue in Lopez and Morrison ”) (citations omitted).

I n contrast to the statute invalidated in Morrison
, § 844(i)
possesses the requisite jurisdictional element missing in Morrison
, as it specif

i cally requires that the defendant damag e or destroy “any bu i l d i n g, v ehicle, or other real o r personal p roperty used in interstate or f o reig n commerce o rU N I T E D S T A T E S V

. G A

R C I A 16

in any activity affe cting interstate or foreig n commerce

. . . ” 18 U .S.C. § 844(i). As the Supreme C o u r t e x plained in Russell

, “[ t] h e cong r e ssional p ower to reg ulate the class o f

ac t i v i t ies that constitute the rental market for real estate includes the power to reg ulate individual activity within that class.” 471 U.S. at 862 (footnote reference omitted). C o n sidering o ur precedent disting uishing M orrison a n d considering Russell ’s holding that § 844(i ) was validly enacted p ursuant to Cong ress’s Commerce Clause p ower, we reject Garcia’s facial a

n d as-applied challeng es to the statute. See Russell , 471 U.S. at 859 (“The r e f erence to any building used in any activity affecting interstate or foreig

n commerce

ex p resses a

n intent by Cong ress to ex ercise i t s f u ll power under the Commerce Clause.”) (alterations, footnote reference, and internal quotation marks omi tted); see also Gomez
, 87 F .3d at 1096 ( “ A ccording to the plain lang uag e o f the statute, the interstate c ommerce a spect of t h e c r i m e is distinct from the arson-it depends solely on what the property had been used for (or whether the p rope r t y w a s moving in interstate commerce). . . .”). 2

Garcia’s assertion that Morr i son undermined Russell ’s analy sis premised on the a g g reg ate e f fect 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 p oint. I n Logan
, the Second Circuit reviewed an arson conviction stemming from

2 Ru s sell ’ s h o ld in g th at 1 8 U.S.C. § 8 4 4 (i) w as co n stitu tio n al u n d er th e fa c t s o f th at case co m

p letely u n d erm in es Garcia’ s f

acial ch allen g e. S e e Un ited S ta tes v. Peep les

, 6 3 0 F .3 d 1 13 6
, 1 1 3 8 (9 th Cir. 2 0 1 0 ) (“ A f acial ch allen g e to a l eg islativ e A ct is, o f co u rse, th e m o st d i f f icu lt ch allen g e to

m o u n t su ccessf

u lly

, sin ce th e ch allen g er m u st estab lish th at n o set of circu m s tan ces ex ists u n d e r w h ich th e A ct w o u ld b e v alid .”) (citatio n

o m itted ).U N I T E D S T A T E S V

. G A

R C I A 17

the burning of a rented f raternity house on a u niversity
campus. The defendant was c onvicted of violating 18 U .S.C. § 844(n), “ which criminaliz es c onspiracy to commit arson on property that is used in interstate commerce or in any activity aff e c t i n g interstate commerce.

. . .” Id. at 179. The Second Circuit initially observed that t h e Supreme Court cited Russell with approval in Jones v. United States
, 529 U.S. 848 (2000), a case decided post- M orrison

. See Logan
, 419 F .3d
at 180. 3 The Second Circuit pointed out that the Supreme Court disting uished the owner-occupied residence at issue in Jones from the rental prope r t y at issue in Russell

. See id. The Second Circuit a lso noted that the S upreme Court recently reaffirmed in Gonzales v. Raich

, 545 U.S. 1 (2005), Cong r ess’s power to reg ulate purely local activity if that local activity is part o f an economic chain o f activities substantially affecting interstate commerce. See id. The Second C ircuit emphasiz ed that this was the same rationale used in Russell
to uphold “federal reg ulation of local properties involved in the nationwide class of activities that constitute the r ental market for real estate.” Id. (citation a nd internal q u o t a t ion marks omitted). Moreover, the Second Circuit concluded that “even if we had reason to believe t h a t R ussell ’s holding is questionable in lig ht of Morrison and Lopez
, it has not been

ex p ressly over r uled by the Supreme Court. Courts o f

3 In Jo n es , th e Su

p rem e Co u rt co n sid ered “ w h eth er arso n o f a n

o w n er- o ccu p ied p riv ate resid en ce f

alls w i t h i n § 8 4 4 (i)’ s co m p ass” an d h eld th at “ an o w

n er- o ccu p i ed resid en ce n ot u sed f o r an y co m

m ercial
p u rp o s e d oes n o t q u alif y as p r o p e r t y u sed in co m m erce or

c o m m erce- af f ectin g activ ity ; arso n o f su ch a d w ellin g , th eref o re, is n o t

su b j ect to f ed eral p ro secu tio n u n d er § 8 4 4 (i).

. . .” 52 9 U .S. at 8 5 0

– 5 1 (in t ern al q u otatio n m ark s o m itted ). In s u p p ort o f its h o ld in g , th e S u p rem e Co u rt o b s erv ed th at Ru ssell in v olv ed ren t ed real estate, w h ereas in Jo nes

“ t h e o w n er u sed th e p ro p erty as h is h o m e, th e cen ter o f h is f am ily lif e. H e d id n o t u se th e resid en ce in an y trad e o r b u sin ess.” Id

. at 8 5 6.U N I T E D S T A T E S V

. G A

R C I A 18

Appeals are therefore o blig ated to follow Russell until the Supreme Court itself sees fit to reconsider that decision.

. . . ” Id.

Althoug h the Second Circuit addressed the conspiracy subsection of the statut e i n Logan
, its reasoning is nevertheless instructive because the c o nspiracy sub s ection incorporates the other offenses defined in § 844(i). See 18 U.S.C. § 8 44(n) (punishing “ a person who conspires to commit a ny o f f e n se defined in this chapter”). B ased on our precedent disting uishing Morrison and Lopez
, we also ag r ee with the Second Circuit that those cases did n o t undermine Russell ’s holding that damag e to a rental apartment building satisfies the jurisdictional requirements of 18 U.S.C. § 844(i). F inally

, we have ex pressed a similar reluct a nce to abandon Supreme Court precedent on the p r e m ise that a subsequent

case has effected an implicit overruling of earl i e r S u preme Court precedent. See Lacano Inv., LL C v

. Balash

, No. 13- 35854,

– F .3d –, 2014 W L 4236461, at * 5 (9th Cir. Aug

. 28, 2014) (ex pressing that “we must follow [ a Supreme Court opinion] which directly controls, leaving to t h e Supreme Co u r t the prerog ative of o verruling its own decisions”) (citation and alteration omitted).

Apply ing Russell and Gomez
, w e conclude that there was

s u f f i cient evidence to satisfy “ Russell ’s per se rule that all rental property affects com m e r c e sufficiently enoug h to

wa r r a nt federal jurisdiction under section 844(i).

. . .” 4

4 A lth o u gh th ere is a serio u s q u estio n as to w h eth er th e g o v ern m en t p resen t ed su f

f icien t ev id en ce th at th e Ch ev ro let T ah o e S UV w as u s ed in in terstate co m

m erce, see Un i ted Sta tes v. G eig er , 2 6 3 F.3 d 10 3 4
, 1 0 3 7 (9 th Cir. 2 00 1 ) (h o ld in g t

h at “ th e ‘ u sed in ’ q u alif

icatio n is m o s t sen sib ly read to m ean activ e em

p lo y m en t f o r co m m ercial p u rp o ses, an d n ot m erelyU N I T E D S T A T E S V

. G A

R C I A 19

Gomez
, 8 7 F .3d a t 1094. The g o vernment presented evidence that the apartments were leased; t h e apartment building was

a dvertised on the internet; and many o f its residents we r e from out-of-state. The g overnment also presented evid e n c e that the apartment building was damag e d by Garcia’s use o f

a n e x p losive device. Thus, the g overnment satisfied the jurisdictional provisions of 18 U .S.C. § 844(i), and the district
court properly denied Garcia’s motion for a judg ment o f acquittal.

IV. CONCLUSION

W e conclude t h at nothing in Morrison undermined Russell ’s per se r u le that damag e to a rental apartment building satisfies th e jurisdictional provisions of 18 U .S.C. § 844(i). Morrison did not overrule Russell o r Gomez in any way , a nd we are required to apply this binding p r e ce d e nt in affirming G arcia’s convictions. The government presented sufficient evidence that Garcia’s use of an ex p l o s ive device

a p assiv e, p assin g , o r p ast co n n ectio n to co m

m erce”) (citatio n , alteratio n , an d in tern al q u o t ati o n m a r k s om itted ), w e n eed n ot reach th is i ssu e. A cco rd i n g to th e v erd ict f o rm , th e j u ry d eterm in ed th at b o th th e ap artm en t b u i l d i n g an d th e v eh i cle w ere “ u sed in in terstate co m m erce o r in an activ ity af f ectin g in t erstate co m

m erce[.]” W e af

f irm Garcia’ s co n

v ictio n b ased o n Ru ssell ’ s p er se ru le th at d am ag e to a ren ted ap artm en t b u ild in g satisf ies 1 8 U.S.C. § 8 4 4(i)’ s j u risd ictio n al req u irem en t irresp ectiv e o f th e j u ry ’ s f in d in g co n cern in g th e v eh i cle. W e also d o n o t ad dres s G a r cia’ s ch allen g e to th e district co u rt’ s j u ry in s tru ctio n co n cern in g t h e v eh i cle b ecau se th e district co u rt p ro perly in stru cted th e j u r y t h at an ap artm en t b u ild in g “ is u sed in in terstate co m m erce, o r in an activ ity affe c t i n g in terstate co m

m er c e , i f i t co n t ain s ren t al u n its an d is u s ed as ren t al
p ro p erty .”U N I T E D S T A T E S V

. G A

R C I A 20

damag ed an a

partment b uilding that was used in interstate

commerce.

AF F IRMED.