U.S. v. Viscome, s. 96-3049

• Decision Date: 26 June 1998
• Docket Number: Nos. 96-3049,96-3461,s. 96-3049
• Citation: 144 F.3d 1365
• Parties: UNITED STATES, Plaintiff-Appellee, v. Mark Dale VISCOME, Defendant-Appellant. UNITED STATES, Plaintiff-Appellee, v. Samuel Joseph GENTILE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1365

144 F.3d 1365

UNITED STATES, Plaintiff-Appellee, v. Mark Dale VISCOME, Defendant-Appellant.

UNITED STATES, Plaintiff-Appellee, v. Samuel Joseph GENTILE, Defendant-Appellant.

Nos. 96-3049, 96-3461.

United States Court of Appeals, Eleventh Circuit.

June 26, 1998.

B. Kay Neiss, Tampa, FL, for Viscome.

Charles R. Wilson, U.S. Atty., Tamra Phipps, David P. Rhodes, Asst. U.S. Attys., Tampa, FL, for Plaintiff-Appellee.

Charles E. Lykes, Jr., Clearwater, FL, for Gentile.

Appeals from the United States District Court for the Middle District of Florida.

Before COX and HULL, Circuit Judges, and KRAVITCH, Senior Circuit Judge.

HULL, Circuit Judge:

Appellants Mark Dale Viscome and Samuel Joseph Gentile appeal their convictions and sentences for various firearms and explosives offenses. After review, we affirm.

I. FACTS

Appellant Gentile was involved in a bitter custody fight with his estranged wife. Gentile planned to kill his wife by planting a bomb under her work vehicle and approached Appellant Viscome about making a bomb. ¹ Viscome agreed to make the bomb and Gentile gave him money to purchase the necessary components. Viscome later assembled the bomb with Gentile's assistance.

After assembling the bomb, Appellants Gentile and Viscome drove to the City of Palm Harbor's Parks and Recreation Department, where Gentile's wife was employed as a groundskeeper. Pointing out one of two parked trucks, Gentile stated to Viscome that he wanted to plant the bomb on that truck. The truck Gentile pointed out was the truck his wife always drove. Gentile was unsuccessful in persuading Viscome to plant the bomb and thus attempted to plant the bomb himself. However, Gentile aborted the attempt upon seeing someone nearby. Gentile and Viscome initially hid but subsequently became nervous and left. Afterwards, Gentile again unsuccessfully attempted to persuade Viscome to plant the bomb. Gentile ultimately indicated that he knew someone else who would take care of it for him. Gentile later informed Viscome that "the situation had been taken care of."

The bomb never detonated but was discovered when two Parks Department employees were in the truck and someone alerted them that something was hanging beneath the truck. The occupants observed what appeared to be a bomb and contacted the authorities. Bomb squad officers removed and disassembled the bomb, subsequently confirming that it was capable of exploding with lethal force.

The police learned from an anonymous source that Appellants Gentile and Viscome made and planted the bomb. Shortly thereafter, Gentile and Viscome were arrested.

II. PROCEDURAL HISTORY

Appellant Viscome pled guilty to, inter alia, conspiring to use a weapon of mass destruction against a person in the United States in violation of 18 U.S.C. § 2332a(a)(2), and attempting to damage, by means of an explosive, a vehicle used in an activity affecting interstate commerce in violation of 18 U.S.C. § 844(i).

Appellant Gentile was charged with these same offenses, but pled not guilty and went to trial. The jury convicted Gentile of conspiring to use a weapon of mass destruction against a person in the United States in violation of 18 U.S.C. § 2332a(a)(2), and attempting to damage, by means of an explosive, a vehicle used in an activity affecting interstate commerce in violation of 18 U.S.C. § 844(i). ²

III. DISCUSSION

A. Gentile's § 844(i) Conviction

Appellant Gentile contends that the government presented insufficient evidence that the truck under which the bomb was planted was used in an activity affecting interstate commerce for purposes of § 844(i). ³ Section 844(i) proscribes damaging, by means of fire or an explosive, any vehicle used in interstate commerce or in an activity affecting interstate commerce, as follows:

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 ..., fined ..., or both....

18 U.S.C. § 844(i). This statute creates a two-prong test for criminal liability. Gentile was indicted and convicted under the second prong of § 844(i) on the theory that the truck that he attempted to bomb was used "in an activity affecting interstate or foreign commerce." Id. ⁴

Gentile asserts that this court's decision in United States v. Denalli, 73 F.3d 328 (11th Cir.), modified, 90 F.3d 444 (11th Cir.1996), interprets the Supreme Court's Lopez decision as requiring the government to show that the truck was used in an activity that substantially affected interstate commerce. In Denalli, this court held that a private home destroyed by the defendant was not used in interstate commerce. This court further held that the government must show that the private residence "was used in an activity that had a substantial effect on interstate commerce" in order to convict the defendant under § 844(i). Denalli, 90 F.3d at 444. Gentile contends that the government has not met this burden here.

In Denalli, this court did hold that a conviction under the second prong of § 844(i) is valid only if the property at issue was used in an activity that had "a substantial effect on interstate commerce." Id. ⁵ However, subsequent to the Denalli decision involving a private residence, this court has indicated that if business property is involved, then the property need only have been used in an activity that in the aggregate has a substantial effect on interstate commerce. United States v. Chowdhury, 118 F.3d 742, 745 (11th Cir.1997) (per curiam). In Chowdhury, this court explained that a "case concerning the destruction of business property, when considered in the aggregate, would have a substantial effect on interstate commerce because business property will almost invariably be an element of a much broader commercial market." Id. (citing Russell v. United States, 471 U.S. 858, 862, 105 S.Ct. 2455, 2457, 85 L.Ed.2d 829 (1985)); ⁶ see also United States v. Grimes, 142 F.3d 1342, 1346-47 (11th Cir.1998) (relying on Russell for the proposition that the legislative history of § 844(i) indicates that Congress intended to protect all business property). ⁷

Other decisions of this court either have recognized possible tensions created by Denalli or have suggested that it be limited to its facts. See Belflower v. United States, 129 F.3d 1459, 1461 n. 4 (11th Cir.1997) (per curiam) ("We recognize that there is disagreement over whether the analysis applied by this Court in Denalli is consistent with other precedent in this circuit applying Lopez ...."), cert. denied, --- U.S. ----, 118 S.Ct. 2308, 141 L.Ed.2d 166 (1998); ⁸ United States v. Chisholm, 105 F.3d 1357, 1357-58 n. 2 (11th Cir.1997) (per curiam) ("Denalli involved a special case: the arson of a private residence."). In the case sub judice, however, we do not address either the scope of Denalli or any tension created thereby, because even assuming arguendo that Denalli's standard applies here, we conclude that government's evidence was sufficient to sustain Gentile's § 844(i) conviction.

The government's evidence showed that the truck at issue here was the subject of an interstate lease at the time of Gentile's attempted bombing. The truck was leased by the City of Palm Harbor, Florida from Ford Motor Company in Atlanta, Georgia. Because interstate truck leasing is itself a tangible component of interstate commerce, the truck necessarily was used in an activity that in the aggregate has a substantial effect on interstate commerce. See Chowdhury, 118 F.3d at 745; Denalli, 90 F.3d at 444. Affirming Gentile's conviction thus poses no risk of "embrac[ing] effects upon interstate commerce so indirect and remote that to embrace them ... would effectively obliterate the distinction between what is national and what is local...." Denalli, 73 F.3d at 330 (quoting Pappadopoulos, 64 F.3d at 526-27). Consequently, the government's evidence satisfied the interstate nexus element of § 844(i). ⁹

B. Viscome's § 844(i) Conviction

Appellant Viscome also attacks the sufficiency of the government's evidence regarding the interstate nexus element. However, Viscome's guilty plea waived all non-jurisdictional defects in the proceedings against him; and Viscome's sufficiency of the evidence challenge is non-jurisdictional. See United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir.1986). In any event, Viscome's contention is without merit for the reasons discussed above regarding Appellant Gentile.

C. Gentile's § 2332a(a)(2) Conviction

Appellant Gentile challenges the constitutionality of the version of § 2332a(a)(2) under which he was convicted. Prior to sentencing, Gentile argued for the first time that the version of § 2332a(a)(2) under which he was convicted was unconstitutional. ¹⁰ Thus, Gentile did not timely challenge the constitutionality of § 2332a(a)(2) in the district court and, consequently, did not properly preserve this constitutional challenge for appeal. United States v. Walker, 59 F.3d 1196, 1198 (11th Cir.1995). Nonetheless, this court, in its discretion, may review for plain error issues not preserved below. Id. Exercising our discretion, we review Gentile's challenge to § 2332a(a)(2) for plain error.

The version of § 2332a(a)(2) under which Gentile was convicted proscribed, inter alia, the use of weapons of mass destruction against a person within the United States, as follows:

§ 2332a. Use of weapons of mass destruction

(a) Offense.--A person who uses, or attempts or conspires to use, a weapon of mass destruction--

...

(2) against any person within the United States

...

shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.

18 U.S.C. § 2332a(a)(2) (1994). In April 1996, Congress amended § 2332a(a)(2) to include an element requiring...