U.S. v. Renteria

• Decision Date: 20 February 2009
• Docket Number: No. 07-50471.,07-50471.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel Tiscorena RENTERIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

557 F.3d 1003

UNITED STATES of America, Plaintiff-Appellee, v. Manuel Tiscorena RENTERIA, Defendant-Appellant.

No. 07-50471.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 10, 2008.

Filed February 20, 2009.

Kyle W. Hoffman, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

David Zugman, San Diego, CA, for the defendant-appellant.

Appeal from the United States District Court for the Southern District of California; Larry A. Burns, District Judge, Presiding. D.C. No. CR-04-00138-LAB.

Before: HARRY PREGERSON, D.W. NELSON and DAVID R. THOMPSON, Circuit Judges.

THOMPSON, Senior Circuit Judge:

A jury convicted appellant, Manuel Tiscorena Renteria ("Renteria"), of maliciously damaging a building and real property, the Congregation Beth Am Synagogue, used in interstate and foreign commerce, in violation of 18 U.S.C. § 844(i). We reversed that conviction and remanded for a new trial because of an improper jury instruction. Renteria was retried and a jury again found him guilty. In this present appeal, he contends that (1) the jurisdictional element of 18 U.S.C. § 844(i) was not adequately alleged in the indictment; (2) a unanimity instruction was improperly withheld; and (3) insufficient evidence was presented for a conviction. We disagree and affirm his conviction.

I Background

The synagogue Renteria was convicted of burning was part of a complex of buildings, totaling 20,000-24,000 square feet located on approximately 4 acres. The complex included a sanctuary, social hall, gift shop, and preschool daycare center. The gift shop was located around 10 to 15 feet from the synagogue doors where the fire occurred. A preschool teacher at the synagogue also ran the gift shop for her own profit. She had an agreement with the synagogue to pay a monthly rent of $400. She would sell goods and keep the profit. The gift shop was open to the public Monday, Wednesday, and Thursday afternoons from 3:30 to 7:00, and Sunday mornings from 8:30 to 12:45. In October 2003, the gift shop was selling between $1,200 and $1,500 worth of goods each month, and more during certain months and holidays. The synagogue had an internet link to the gift shop on its website.

The preschool operated by the synagogue was attended by children of synagogue members and nonmembers. The fee for each child attending the preschool five days a week was around $5,000 a year. The synagogue employed preschool teachers and paid them approximately $16-$17 per hour on average. The teachers did not need to be Jewish or members of the synagogue.

In his first appeal, Renteria contended the indictment was defective because it failed to allege a "substantial" effect on interstate commerce, which he argued, was a necessary element of a violation of 18 U.S.C. § 844(i). He also contended evidence presented at his trial was insufficient to prove a § 844(i) violation, and one of the jury instructions was improper.

We reversed Renteria's first conviction because the challenged jury instruction was improper. United States v. Renteria, 187 Fed.Appx. 704 (9th Cir.2006). In that decision, we also addressed Renteria's additional two arguments. Id. We concluded it was not necessary to include in the indictment an allegation that the impact on interstate commerce was "substantial," and that the evidence was sufficient for conviction. See id.

After remand following the first appeal, Renteria moved to dismiss the indictment on the grounds that there was a lack of nexus to interstate commerce and the indictment was duplicitous. The district court denied the motion. The case went to trial and Renteria was found guilty again. This appeal followed.

II Discussion

A. Allegation of Jurisdictional Element

The first issue we consider is whether the jurisdictional element of 18 U.S.C. § 844(i) was alleged appropriately in the indictment. Generally, the adequacy of an indictment is reviewed de novo. United States v. Rodriguez-Rodriguez, 364 F.3d 1142, 1145 (9th Cir.2004), amended and superseded on other grounds, 393 F.3d 849 (9th Cir.2005).

The Indictment states:

On or about October 11, 2003, within the Southern District of California, defendant MANUEL TISCARENO-RENTERIA did maliciously damage, by means of fire, the building and real property known as Congregation Beth Am Synagogue, 5050 Del Mar Heights Road, San Diego, California, which was used in interstate and foreign commerce, and in an activity affecting interstate and foreign commerce; in violation of Title 18, United States Code, Section 844(i). (Emphasis added.)

The relevant language of § 844(i) provides:

(I) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned. ...

18 U.S.C. § 844(i) (emphasis added).

Renteria argues the allegation in the indictment, "used in interstate and foreign commerce, and in an activity affecting interstate and foreign commerce," does not adequately allege federal jurisdiction. He contends (1) the phrase "used ... in an activity affecting interstate and foreign commerce" is insufficient because it leaves out the modifier "substantially" and (2) the phrase "used in interstate and foreign commerce" is insufficient because more allegations are required to explain how the synagogue could have an impact on interstate commerce.

1. Law of the Case

The "law of the case" doctrine provides that "one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case." United States v. Scrivner, 189 F.3d 825, 827 (9th Cir.1999), (quoting Merritt v. Mackey, 932 F.2d 1317, 1320 (9th Cir.1991)). We will not apply "law of the case" however if (1) the first decision was clearly erroneous; (2) there has been an intervening change in the law; (3) the evidence on remand is substantially different; (4) other changed circumstances exist; or (5) a manifest injustice would otherwise result. United States v. Alexander, 106 F.3d 874, 876 (9th Cir.1997). Outside of one of these circumstances, the failure to apply the doctrine is an abuse of discretion. Id. Renteria argues the indictment is defective because it failed to allege the synagogue had a "substantial" effect on interstate commerce. Renteria challenged the indictment on this same ground in his first appeal, and we rejected his argument stating:

Renteria argues that the indictment itself was defective because it did not allege that his conduct had a "substantial" effect on commerce. The requirement that the effect on commerce be "substantial" is not in the text of § 844(i), but is a judicial gloss upon the statutory language. United States v. Pappadopoulos, 64 F.3d 522, 527 (9th Cir. 1995). The indictment tracked the language of the statute, and adequately informed Renteria of the charge he had to meet. An indictment that follows the statutory language, and otherwise puts the accused on fair notice of all the implied elements of the charge, is not also required to incorporate judicial decisions that have interpreted that language. United States v. Godinez-Rabadan, 289 F.3d 630, 634 (9th Cir.2002). The indictment was not required to allege that the impact on commerce was "substantial."

Renteria, 187 Fed.Appx. at 706.

In Renteria's first appeal, we rejected the same argument he makes in this present appeal. Because none of the exceptions to the "law of the case" doctrine exist, we will not consider Renteria's renewed argument that the indictment should have alleged that the synagogue "substantially" affected interstate or foreign commerce.

2. Allegations of Effect on Interstate or Foreign Commerce

In Jones v. United States, 529 U.S. 848, 854, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), the Supreme Court held that Congress never intended to exercise its full power under the Commerce Clause in 18 U.S.C. § 844(i) because it contains the phrase "used in" to qualify a commerce-affecting activity. Upon an analysis of § 844(i), the Court determined that "[t]he proper inquiry ... is into the function of the building itself, and then a determination of whether that function affects interstate commerce." Id. (internal quotations omitted). The Court then concluded that the owner-occupied private residence involved in that case was not used in any commercial activity, and arson of such a building was outside the reach of 18 U.S.C. § 844(i). Id. at 859, 120 S.Ct. 1904.

Renteria argues the indictment in his case is defective because it does not allege facts showing how ancillary functions of the synagogue affected interstate or foreign commerce. It is Renteria's position that, because a house of worship is not normally used for commercial purposes, the indictment must include language specifying how the building's use affects commerce. We disagree.

In United States v. Lamont, 330 F.3d 1249 (9th Cir.2003),¹ the issue was whether 18 U.S.C. § 844(i) applied to arson of a church. We followed the two-step process set out in Jones for determining whether arson of a church building could be prosecuted under § 844(i). Id. at 1252. First, we examined the function of the building. Then, we determined whether that function affected interstate commerce. Id. There were no additional pleading requirements because the building on which arson was committed happened to be a church. Id.

Renteria's contention for a heightened requirement for allegations in an indictment when the alleged violation of § 844(i) involves a house of worship has no support in the statute or elsewhere. Such heightened allegations are not necessary.

B. Withholding of Unanimity Instruction

The next issue is whether the indictment should have been dismissed because it was duplicitous and whether the district court should have given the jury a unanimity...