United States v. Cristobal ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4505
LUIS CRISTOBAL,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-00-83)
Argued: February 27, 2002
Decided: June 5, 2002
Before WILKINSON, Chief Judge, and WILLIAMS and
GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Gregory wrote the opinion, in
which Chief Judge Wilkinson and Judge Williams joined.
COUNSEL
ARGUED: Kelly Anne Halligan, LEVIT, MANN & HALLIGAN,
P.C., Ashland, Virginia, for Appellant. N. George Metcalf, Assistant
United States Attorney, Richmond, Virginia, for Appellee. ON
BRIEF: Paul J. McNulty, United States Attorney, Richmond, Vir-
ginia, for Appellee.
2 UNITED STATES v. CRISTOBAL
OPINION
GREGORY, Circuit Judge:
After a bench trial, Luis Cristobal was convicted on twenty-two
counts of a twenty-three count indictment for, among other crimes,
setting homemade explosive devices under two pickup trucks and at
the door of an area business. On appeal, Cristobal contends that the
district court erred in 1) denying his motion to suppress statements
made while he was in the hospital, 2) rejecting his affirmative defense
of insanity, 3) convicting him on two counts of maliciously damaging
a vehicle used in or affecting interstate commerce, and 4) enhancing
his sentence on three counts under 18 U.S.C. § 924(c)(1)(C).1 For the
reasons set forth below, we affirm.
I.
Sometime in 1998, appellant Luis Cristobal began experiencing
personal problems that he claims were the result of his wife’s philan-
dering. By 2000, the couple had separated, and Cristobal blamed his
wife for the breakdown in the marriage. Cristobal alleges that his
stress over his wife’s affairs "mutated into delusional psychosis."
During the early morning hours of February 7, 2000, Cristobal set
homemade explosive devices in three locations. He placed one device
under a pickup truck driven by David Haston, a man he suspected of
having an affair with his wife. He placed the second device under a
pickup truck driven by his wife’s brother, Joseph Michael. Cristobal
placed the last device outside a doorway of a building that housed
Colonial Iron Works, Inc., a business owned and operated by Joseph
Michael.2
1
Cristobal’s remaining sufficiency of the evidence arguments are all
predicated upon his claim that the evidence did not show he fired his gun
at Officer Melton. We have carefully reviewed the record and are satis-
fied that the evidence, viewed in a light most favorable to the prosecu-
tion, supports such a finding.
2
The devices, which Cristobal began constructing days earlier, were
made of steel box tubing, a broken lightbulb, black powder and shrapnel.
The bomb placed at Colonial Iron Works was also made with a timing
device, gasoline and acetylene gas.
UNITED STATES v. CRISTOBAL 3
Both explosive devices placed under the pickup trucks were
designed to and did explode shortly after Haston and Michael started
their engines later that morning. Haston and Michael sustained inju-
ries, though their injuries were not life threatening. The device placed
at Colonial Ironworks exploded at 5 a.m. that same morning. Fortu-
nately, losses were minimal and no one was injured.3
After an initial investigation, Cristobal, who could not be located,
was named as the primary suspect. Searches of his apartment and
workplace uncovered additional evidence, including bomb making
materials and a hand drawn picture depicting Cristobal surrounded by
serpents, each serpent bearing the name of one of his victims.4 A copy
of this picture was also found in the beds of the pickup trucks after
the bombings.
A search for Cristobal was undertaken by local, state, and federal
authorities. On February 24, 2000, special agents of the Bureau of
Alcohol, Tobacco and Firearms (BATF), acting on several leads, trav-
eled to the Dinwiddie Church of Christ in Dinwiddie, Virginia in
search of Cristobal. Virginia State Police Trooper Ed Melton, on spe-
cial assignment with BATF, located a crawl space beneath the church
altar area. Armed with a pistol in his fanny pack, Melton crawled into
the space, which was approximately 17′(L) by 5′(W) by 2.5′(H). As
Melton crawled through the space, he saw Cristobal crouched behind
a stud wall. Melton shouted for Cristobal to "come on out," and when
Cristobal did not respond, Melton removed the pistol from his pack.
3
Cristobal had attempted to pour gasoline and acetylene under a door-
way at Colonial Iron Works through a rubber tube so that when the bomb
exploded it would cause the gasoline to ignite inside the building. The
gasoline and acetylene did not fully ignite.
4
A copy of the picture was found at Cristobal’s workplace, and the
original picture, in a frame, was found hanging on a wall in Cristobal’s
apartment. Behind the picture, investigators found a handwritten, encryp-
ted note. Cristobal stipulated to the decryption of the note, which read:
I will kill Jack Fred Dave and Reggi
first Fred and Jack Dave
then I’m going to Jacksonville kill Reggi
and then I will be back and kill Jack Rick and Glen.
J.A. 119-20 (cross-out in original).
4 UNITED STATES v. CRISTOBAL
Melton shouted "Police" and commanded Cristobal to freeze, but
again Cristobal did not respond. When Melton saw that Cristobal was
armed and pointing a gun directly at him, he ordered Cristobal twice
to drop the gun. Cristobal did not drop the gun. Melton then fired two
volleys of shots at Cristobal, using approximately ten rounds. Cristo-
bal was hit in the upper chest, right arm and elbow, right shoulder,
and ring finger of his right hand. Seriously injured, Cristobal was
pulled from the crawl space beneath the altar and transferred to the
Medical College of Virginia in Richmond, Virginia.5
Cristobal’s medical records indicate that following emergency sur-
gery, he was placed in soft restraints because he had exhibited "threat-
ening or dangerous behavior" to himself. The next morning, at
approximately 10:00 a.m., Special Agents Brian Swann and Kristen
Tomasetti spoke with Amy Chodrov, a registered nurse who was
working in the surgical care trauma unit that day. Agent Swann spoke
with Nurse Chodrov to ascertain whether Cristobal was mentally and
physically capable of being interviewed. Nurse Chodrov informed
Swann that Cristobal was oriented at that time, and Agent Swann
began his interview with Cristobal at 10:17 a.m., while Agent Toma-
setti took notes.6
Before asking Cristobal any questions that could be incriminating,
Agent Swann read Cristobal his Miranda rights, which Cristobal
waived. During the interview, which lasted just under an hour,7 Cris-
tobal confessed to setting the explosive devices. He communicated in
English, his speech was not slurred, he never nodded off or slept, nor
did he indicate in any way that he was under a narcotic stupor. Like-
5
Following the incident at the church, forensic investigators searched
the crawl space beneath the altar. In addition to the .45 caliber pistol
Cristobal pointed and fired at Melton, they found an SKS assault rifle,
changes of clothes, a wig, a stun gun, a gas mask, and a fourth explosive
device that was similar in composition to those used against Haston and
Michael.
6
Unbeknownst to Swann, the court had appointed an attorney by tele-
phone to represent Cristobal the same morning the interview took place.
7
During this time, four breaks were taken. Medical staff checked on
Cristobal during these breaks.
UNITED STATES v. CRISTOBAL 5
wise, Cristobal never asked to stop the interview, and his confession
was detailed.8
On March 8, 2000, a Federal Grand Jury returned a twenty-three
count indictment against Cristobal. He pled not guilty and moved to
suppress his confession and suppress physical evidence seized pursu-
ant to the February 7, 2000 search warrant. The district court allowed
a lengthy suppression hearing, which included testimony from Cristo-
bal’s ex-wife, a previous employer, the trauma surgeon who per-
formed Cristobal’s surgery, the trauma resident and the registered
nurse covering the hospital’s intensive care unit after Cristobal’s sur-
gery. Several law enforcement agents, including agents Swann and
Tomasetti, also testified at the hearing. The district court denied the
motions, and after a two and a half day bench trial, convicted Cristo-
bal on twenty-two counts of the indictment: 1) attempted voluntary
manslaughter, in violation of 18 U.S.C. § 1112, 2) assaulting, resist-
ing, or impeding a federal officer, in violation of 18 U.S.C. § 111, 3)
possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922, 4) using, carrying or discharging firearm during and in relation
to a crime of violence, 18 U.S.C. § 924(c)(1)(A), 5) three counts of
possession of a firearm during and in relation to a crime of violence,
in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii), 6) four
counts of possession of a firearm made in violation of Chapter 53 of
Title 26, 26 U.S.C. § 5861(c), § 5871, 7) four counts of possession of
an unregistered firearm, in violation of 26 U.S.C. § 5861(d), § 5871,
8) four counts of unlawful making of a destructive device, in violation
of 26 U.S.C. § 5822, § 5861(f), § 5871, 9) two counts of malicious
damage and destruction of a vehicle used in interstate commerce or
affecting interstate commerce, in violation of 18 U.S.C. § 844(i), and
8
Later that afternoon, at approximately 3:30 p.m., Cristobal made fur-
ther incriminating statements to Michael Talbert, a special agent with
BATF who had been assigned to guard duty. Agent Talbert approached
Cristobal after hearing Cristobal moaning. Cristobal stated that he was
"so sorry" for making the officer (Trooper Melton) shoot him. Agent Tal-
bert then followed up on Cristobal’s apology with a few questions, with-
out re-reading Cristobal the Miranda warnings. Agent Talbert explained
that when he spoke with Cristobal, Cristobal appeared coherent. Cristo-
bal did not nod off or slur his words, and he spoke to the officer in
English.
6 UNITED STATES v. CRISTOBAL
10) malicious damage and destruction of a building used in or affect-
ing interstate commerce, in violation of 18 U.S.C. § 844(i). The court
sentenced Cristobal to a total of two life sentences plus 35 years.
II.
We first examine Cristobal’s claim that the district court errone-
ously denied his motion to suppress statements made while he was in
the hospital. There is no dispute that Agent Swann obtained Cristo-
bal’s confession after advising Cristobal of his Miranda rights.
Though he was advised of his rights, and though he indicated to
Agent Swann that he wished to waive those rights, Cristobal asserts
1) that his Miranda waiver was not voluntary, knowing or intelligent,
see Miranda v. Arizona, 384 U.S. 436, 444 (1966), and 2) that his
statements given after the waiver were involuntary and thus in viola-
tion of his Fifth Amendment right to due process. We address each
contention in turn.
A.
The inquiry into whether an individual waived effectuation of the
rights conveyed in the Miranda warnings has two distinct dimensions.
Edwards v. Arizona, 451 U.S. 477, 482 (1981). First, the relinquish-
ment of the right "must have been voluntary in the sense that it was
the product of free and deliberate choice rather than intimidation,
coercion, or deception." Moran v. Burbine, 475 U.S. 412, 421 (1986).
Second, "the waiver must have been made with a full awareness of
both the nature of the right being abandoned and the consequences of
the decision to abandon it. Only if the ‘totality of the circumstances
surrounding the interrogation’ reveal both an uncoerced choice and
the requisite level of comprehension may a court properly conclude
that the Miranda rights have been waived." Id. Cristobal insists that
the totality of the circumstances demonstrates his waiver was not only
involuntary, but was also not knowingly and intelligently given. After
carefully reviewing the record, we find to the contrary on each asser-
tion.
1.
Cristobal’s statements must be suppressed if his decision to waive
his Fifth Amendment privilege was involuntarily made. We engage in
UNITED STATES v. CRISTOBAL 7
the same inquiry when analyzing the voluntariness of a Miranda
waiver as when analyzing the voluntariness of statements under the
Due Process Clause. See Colorado v. Connelly, 479 U.S. 157, 169
(1986) ("There is obviously no reason to require more in the way of
a "voluntariness" inquiry in the Miranda waiver context than in the
Fourteenth Amendment confession context."). The test for determin-
ing whether a statement is involuntary under the Due Process Clause
"is whether the defendant’s will has been ‘overborne’ or his ‘capacity
for self-determination critically impaired,’" United States v. Pelton,
835 F.2d 1067, 1071 (4th Cir. 1987) (quoting Schneckloth v. Busta-
monte, 412 U.S. 218, 225 (1973)); see also United States v. Dicker-
son, 530 U.S. 428, 434 (2000), because of coercive police conduct.
Colorado v. Spring, 479 U.S. 564, 574 (1987). To determine whether
a defendant’s will has been overborne or his capacity for self determi-
nation critically impaired, courts must consider the "totality of the cir-
cumstances," including the characteristics of the defendant, the setting
of the interview, and the details of the interrogation. Pelton, 835 F.3d
at 1071. Though an appellate court must make an independent deter-
mination on the issue of voluntariness, the district court’s findings of
fact on the circumstances surrounding the confession are to be
accepted unless clearly erroneous. Id. at 1072. Our review of the
record leads us to conclude that Cristobal’s waiver was indeed volun-
tary. We cannot find, as Cristobal asserts, that his will was overborne
by the circumstances of the hospital interrogation.
Historically, cases of gross abuse have allowed courts to easily
deem certain confessions involuntary. Undoubtedly, an accused’s will
may be overborne when he or she is subjected to severe physical
abuse, see Brown v. Mississippi, 297 U.S. 278 (1936), held incommu-
nicado and questioned for over 36 hours without sleep or rest, see
Ashcraft v. Tennessee, 322 U.S. 143 (1944), given "truth serums," see
Townsend v. Sain, 372 U.S. 293 (1963), or threatened with a loaded
gun while wounded, see Beecher v. Alabama, 389 U.S. 35 (1967).
The crucial difference between these cases and the case at hand is that
Cristobal’s waiver (and subsequent confession) was not the result of
coercive police activity.
Coercive police activity is a necessary predicate to a finding that
a confession is not "voluntary" within the meaning of the Due Process
Clause of the Fourteenth Amendment. Connelly, 479 U.S. at 167;
8 UNITED STATES v. CRISTOBAL
United States v. Braxton, 112 F.3d 777, 780 (4th Cir. 1997) (en banc).
As such, coercive police activity is also a necessary predicate to a
finding that a waiver of Miranda rights is not voluntary. Connelly,
479 U.S. at 169-70. In determining whether a defendant’s will has
been overborne, the Court has focused on the "crucial element of
police overreaching." Id. at 163 (collecting cases). While each case
has turned on its own set of factors justifying the conclusion that
police conduct was oppressive, "all have contained a substantial ele-
ment of coercive police conduct." Id. at 163-64.
The fact that Cristobal had been given pain killers and narcotics
such as morphine is not enough to render his waiver involuntary. In
making a determination on whether one’s will has been overborne, we
certainly must take into consideration "the characteristics of the
defendant." Pelton, 835 F.2d at 1071. However, a deficient mental
condition (whether the result of a pre-existing mental illness or, for
example, pain killing narcotics administered after emergency treat-
ment) is not, without more, enough to render a waiver involuntary.
See Connelly, 479 U.S. at 164-65. "[W]hile mental condition is surely
relevant to an individual’s susceptibility to police coercion, mere
examination of the confessant’s state of mind can never conclude the
due process inquiry." Connelly, 479 U.S. at 165.
Because we cannot look to mental condition alone when determin-
ing the voluntariness of Cristobal’s waiver, we must ultimately focus
on the actions of the law enforcement officials to determine if police
overreaching occurred in this case. We find that it did not. The evi-
dence here does not show that law enforcement officials exploited
Cristobal’s weakened condition with coercive tactics. See Connolly,
479 U.S. at 165. Cristobal never requested not to be interviewed due
to pain. See United States v. Guay, 108 F.3d 545, 550 (4th Cir. 1997).
No officer harmed or threatened to harm Cristobal if he did not waive
his rights and answer Agent Swann’s questions. In fact, Agent Swann
did not pressure Cristobal in any way to waive his rights. Rather,
Agent Swann was careful to 1) ensure that Cristobal was alert before
speaking with him, 2) introduce himself to Cristobal and advise Cris-
tobal of the nature of the investigation, 3) read Cristobal his Miranda
rights, and 4) make sure, even after the waiver, that Cristobal was in
fact a willing participant. While there were other agents in the hospi-
tal room at the time of the interview (taking notes or serving as
UNITED STATES v. CRISTOBAL 9
guard), no other agents engaged in conversation with Cristobal. This
is simply not a case where law enforcement has attempted to "wring[ ]
a confession [or Miranda waiver] out of an accused against his will."
Blackburn v. Alabama, 361 U.S. 199, 206-07 (1960).9
2.
Because a waiver may very well have been voluntary (that is,
uncoerced) and yet given without a knowing and intelligent waiver of
Miranda rights, see Moran v. Burbine, 475 U.S. at 421, it is not
enough for us to find that Cristobal voluntarily waived his rights. We
must also determine whether the waiver was knowing and intelligent.
Unlike the issue of voluntariness, police overreaching (coercion) is
not a prerequisite for finding that a waiver was not knowing and intel-
ligently made. Id.; see United States v. Bradshaw, 935 F.2d 295, 299
(D.C. Cir. 1991).
Reviewing the totality of the circumstances, we find that Cristobal
understood he had the right to remain silent and that anything he said
could be used as evidence against him. See Colorado v. Spring, 479
U.S. 564, 574 (1987). As the district court found, though Cristobal
was born in Cuba, he was equally capable in English and Spanish.
9
Cristobal seems to suggest that coercion and police overreaching
occurred here merely because the agents did not wait until Cristobal was
released from the hospital or transferred out of intensive care before sub-
jecting him to questioning. We cannot, without serious repercussions,
agree with this argument. If police conduct could be deemed coercive
simply because an interrogation occurs while a suspect is in the hospital,
law enforcement officers would be faced with a serious dilemma—wait
until suspects are released (and thus risk losing valuable crime-solving
or further crime-preventing information), or risk suppression of state-
ments necessary for conviction. We certainly recognize that there are
many scenarios that could render a hospital confession involuntary.
Because, in many instances, hospital patients are weakened physically
and perhaps mentally, law enforcement officials must be cautious not to
exploit suspects’ conditions with coercive tactics. In this case, Agent
Swann certainly acted with caution, and as such, the circumstances here
do not warrant a finding of involuntariness. The mere fact that Agent
Swann did not wait to interview Cristobal does not amount to police
overreaching.
10 UNITED STATES v. CRISTOBAL
Cristobal’s ability to understand his rights was not hindered in any
way by the fact that English was his second language. The evidence
also showed that Cristobal had been Mirandized on at least one other
occasion.
Because we find no coercive police activity (and thus the waiver
was voluntary), it is in our inquiry into whether Cristobal’s waiver
was knowing and intelligent that his mental condition due to the pain
killers and narcotics is the most relevant. Pain, on its own, will gener-
ally not suffice to render a waiver invalid. However, we recognize
that there are situations where, after receiving certain painkillers and
other narcotics, a person might be incapable of making a reasoned
decision to abandon his or her rights.
Unfortunately for Cristobal, nothing in the record indicates that he
was incapable of giving a knowing and intelligent waiver of his
rights. The record merely evidences the amount of medication Cristo-
bal received, it does not establish the medication’s effect on Cristobal.
As such, we cannot speculate whether the amounts given to Cristobal
could have affected his judgment or rendered him incapable of mak-
ing an informed decision or incapable of thinking rationally.
There simply is no evidence that the drugs had an adverse effect
on Cristobal’s ability to think rationally. To the contrary, the uncon-
troverted medical testimony before us indicates that Cristobal was
alert and coherent at the time of the interview. Medical records indi-
cating that a suspect had been given narcotics, with no supporting evi-
dence as to the effects of those narcotics (on the individual or even
in general) are not sufficient to render a waiver of Miranda rights
unknowing or unintelligent. Were we to find Cristobal’s waiver not
knowing and intelligent based on these facts and with no evidence of
the effects of the medication on him, we would essentially be stating
that whenever a defendant can show that he was given medication, his
Miranda waiver was per se ineffective. This is a step we are quite
unwilling to take.10 Accordingly, the district court was correct in find-
ing that Cristobal’s Miranda waiver was knowing and intelligent.
10
Cristobal also claims that his waiver was invalid because the morning
of the interview, the court had, on its own, appointed counsel to represent
UNITED STATES v. CRISTOBAL 11
B.
In addition to arguing that his waiver was invalid, Cristobal also
asserts that his statements, all given after the waiver, were involuntary
under the Fifth Amendment, which guarantees that "[n]o person . . .
shall be compelled in any criminal case to be a witness against him-
self . . . without due process of law." U.S. Const. amend. V. Because
we find that Cristobal’s waiver was given voluntarily, and because we
find no intervening coercion on the part of the agents, it follows that
the statements given after the waiver were voluntary as well. Thus,
Cristobal’s argument here is without merit.
Cristobal relies heavily on Mincey v. Arizona, 437 U.S. 385 (1978),
where the Supreme Court found a hospital confession was involuntar-
ily given. This, however, is not a case where the circumstances of a
hospital interview necessitate a finding of involuntariness. Mincey is
easily distinguished.
In Mincey, the "barely conscious" suspect, "depressed almost to the
point of coma," expressed his wish not to be interrogated without a
lawyer on numerous occasions. Mincey, 437 U.S. at 399 (emphasis
added). Many of Mincey’s answers were unresponsive, and he com-
plained to the officer interrogating him that he was confused and
unable to think. Id. at 400. Despite Mincey’s "entreaties to be let
alone," the officer only ceased the interrogation during intervals when
Mincey lost consciousness. Id. at 401. The Court found that Mincey’s
statements were "not the product of his free and rational choice," and
that his will was "simply overborne." Id. at 401-02.
Here, the record clearly reflects that Cristobal waived his Miranda
rights before any questioning began. After his waiver, Cristobal never
him and he was not notified of counsel’s existence, nor was his counsel
notified of the interrogation. The evidence shows that Agent Swann was
not aware that the court had appointed counsel. However, because Cris-
tobal’s voluntary decision to speak was made with full awareness and
comprehension of his Miranda rights, the waiver was valid, even if it
could be shown that the police knew counsel had been appointed and
concealed that fact from Cristobal. Moran v. Burbine, 475 U.S. 412, 423-
24 (1986).
12 UNITED STATES v. CRISTOBAL
asked for the questioning to stop. He never indicated a desire not to
confess. No agent harmed or threatened to harm Cristobal if he did
not answer their questions. He was not purposely held incommuni-
cado or in seclusion, and he was not subjected to continuous and
unrelenting questioning. See United States v. Van Metre, 150 F.3d
339, 348 (4th Cir. 1998). Unlike the suspect in Mincey, Cristobal’s
answers to questions were lucid and in fact very detailed. Cristobal
explained, among other things, how he had constructed the explosive
devices, what materials he used, and the order in which he placed the
explosive devices in the various locations. He explained where he had
been and what he had been doing in the time between the bombings
and his apprehension, and he informed Agent Swann about the man-
ner in which he had obtained the other weapons he possessed while
under the crawl space in the church. Though it was obvious to the
officers that Cristobal was in pain, he did not slur his words during
the interview, he never lapsed into unconsciousness, nodded off or
went to sleep. When asked, on more than one occasion, how he was
feeling and whether he wanted to continue, he responded that he
wished to continue the interview. During the interview, Cristobal
appeared to the agents to be contrite and anxious to respond to ques-
tions to explain what had happened and why. For all these reasons,
we find that Cristobal’s confession was indeed voluntary. The district
court did not err in denying Cristobal’s motion to suppress.
III.
Cristobal next argues that the district court, acting as fact finder,
erred in rejecting his insanity defense. Under the Insanity Defense
Reform Act of 1984, a defendant who raises the affirmative defense
of insanity has the burden of proving, by clear and convincing evi-
dence, that at the time of the offense, he was unable to appreciate the
nature and quality or the wrongfulness of his acts because of a severe
mental disease or defect. See 18 U.S.C. § 17.
In this case, two qualified psychiatrists examined Cristobal and
arrived at differing opinions. Both testified at trial. Dr. Artigues, for
the government, concluded that Cristobal was not suffering from any
severe mental disease or defect at the time of the alleged offense. On
the other hand, Dr. Giorgi-Guarnieri, for the defense, testified that
Cristobal was suffering from a major depressive episode with psy-
UNITED STATES v. CRISTOBAL 13
chotic features. However, Dr. Giorgi-Guarnieri conceded that individ-
uals suffering from severe depressed episodes with psychotic features
are not always incapable of understanding the nature of their acts. The
district court made note of this concession when it rejected Cristobal’s
insanity defense at the close of the evidence. The court explained that
insufficient evidence existed to show that Cristobal "was unable to
understand what he was doing." In making this determination, the dis-
trict judge credited Dr. Artigues’ opinion, noting that she had exam-
ined Cristobal for over twenty hours.11 Assessing and evaluating the
strength and weaknesses of two experts’ conflicting testimonies is a
task particularly within the fact finder’s province, and here the district
judge was not clearly erroneous in finding that Cristobal did not prove
insanity by clear and convincing evidence. See United States v. Free-
man, 804 F.2d 1574, 1577 (11th Cir. 1986).
IV.
Cristobal further asserts that we should reverse two of his convic-
tions for violations of 18 U.S.C. § 844(i) because the government did
not prove that the two pickup trucks under which he placed explosive
devices had a legally sufficient nexus to interstate commerce.12 We
disagree. The evidence, in the light most favorable to the government,
demonstrates that both pickup trucks were used in activities affecting
interstate commerce. See United States v. Carr, 271 F.3d 172, 178
(4th Cir. 2001) (explaining that a claim of an insufficient connection
to interstate commerce is a challenge to one of the elements of the
government’s case, and is therefore considered a sufficiency of the
evidence claim). Substantial evidence existed in the record to support
the district judge’s finding of the essential elements of § 844(i)
11
Dr. Giorgi-Guarnieri saw Cristobal for a total of seven hours.
12
Section 844(i) provides, in pertinent part:
Whoever maliciously damages or destroys, or attempts to dam-
age 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 com-
merce shall be imprisoned for not less than 5 years and not more
than 20 years.
18 U.S.C. § 844(i).
14 UNITED STATES v. CRISTOBAL
beyond a reasonable doubt.13 See Glasser v. United States, 315 U.S.
60, 80 (1942).
Victims David Haston and Joseph Michael did not own the pickup
trucks they were driving when the explosive devices set by Cristobal
detonated. Rather, both vehicles were owned by commercial business-
es.14 Both businesses held title to the vehicles and were responsible
for insurance on the vehicles. Not only were the vehicles owned by
commercial businesses, the evidence established that those businesses
were clearly engaged in interstate commerce.15
13
Cristobal further contests the finding that Joseph Michael received
"personal injury" as a result of the explosive device that detonated under
his truck, as charged in Count 9 of the indictment. While § 844(i) sets
the punishment for damaging or destroying property used in interstate
commerce at no less than 5 years and no more than 20 years, "if personal
injury results to any person . . . as a direct or proximate result of the con-
duct prohibited by this subsection," a person "shall be imprisoned for not
less than 7 and not more than 40 years." We reject Cristobal’s argument
here because the evidence clearly establishes that Michael was in fact
injured by the explosion.
The fact that Michael did not visit a hospital immediately following
the incident does not preclude a finding that he sustained personal injury.
The record indicates that Michael’s legs were sore from the blast, he
experienced severe headaches, was diagnosed with a concussion, and
saw several other doctors about his headaches.
14
The 1988 Mazda truck driven by Haston was owned by his employer,
HyTech Parking Maintenance, Inc. (HyTech), which is primarily in the
business of sweeping, seal coating, and striping roadways in Virginia.
The evidence presented at trial established that while most of HyTech’s
services are performed on roadways in Virginia (including Interstate 95),
HyTech has at least one client with corporate offices out of the state. Fur-
thermore, HyTech’s president testified that the company buys its equip-
ment from all over the United States.
The second pickup truck, driven by Joseph Michael, was owned by
Colonial Iron Works, Inc. Michael is, in fact, the president and owner of
Colonial Iron Works, a small company that assembles and sells iron rail-
ings. The railings are sold in Virginia, but, like HyTech, Colonial Iron-
works purchases most of its component parts from out of state.
15
Indeed, Cristobal does not appeal his conviction under Count 19 for
damaging or destroying the building that contained Colonial Ironworks,
Inc., a business engaged in interstate commerce. 18 U.S.C.
§ 844(i)(emphasis added).
UNITED STATES v. CRISTOBAL 15
Despite this apparent connection to interstate commerce, Cristobal
argues that the primary function of both vehicles was in fact for per-
sonal rather than business use. In support of this argument, Cristobal
notes that both Haston and Michael testified that they primarily used
the trucks to drive to and from work. Additionally, Cristobal points
us to Michael’s statements that he had on occasion used his pickup
truck to transport his children and for other recreational purposes.
Cristobal attempts to rely on the Supreme Court’s recent decision
in Jones v. United States, 529 U.S. 848 (2000), where the Court held
that § 844(i) did not reach the arson of an owner-occupied private res-
idence that was not used for any commercial purpose. 529 U.S. at
859. Because the evidence presented in this case presents a substan-
tially different set of facts than those in Jones, Cristobal’s reliance on
Jones is indeed misplaced.
In Jones, the Court found that a house, used solely as a private resi-
dence for "everyday family living," and not used for any commercial
purposes does not qualify as property "used in" commerce or "used
in" commerce affecting activity. Id. (emphasis added). Jones estab-
lished a two-part inquiry to determine whether a building (or prop-
erty) fits within the strictures of § 844(i). See also United States v.
Terry, 257 F.3d 366, 368-69 (4th Cir. 2001). Courts must first inquire
into the function of the property itself. Jones, 529 U.S. at 854. Sec-
ond, courts must determine whether "that function affects interstate
commerce." Id. Because § 844(i) does not invoke Congress’ full
authority under the Commerce Clause, the Court explained that the
qualification "‘used’ in an activity affecting commerce" is "most sen-
sibly read to mean active employment for commercial purposes, and
not merely passive, passing, or past connection to commerce." Terry,
257 F.3d at 369 (quoting Jones, 529 U.S. at 855); see also, United
Sates v. Carr, 271 F.3d 172, 177 (4th Cir. 2001).
Here, the evidence shows that the primary function of both pickup
trucks was to transport Haston and Michael to and from their work.16
As such, both pickup trucks were clearly used for the purpose of
16
Haston also traveled to and from specific paving and sealing jobs in
the pickup truck. He traveled out of the state in the truck on at least one
occasion to quote a job to a corporate customer.
16 UNITED STATES v. CRISTOBAL
advancing and promoting the business of HyTech and Colonial Iron
Works, commercial entities that dealt in interstate commerce.17
Hence, the evidence sufficiently established that the vehicles speci-
fied in counts 9 and 14 were used in activities affecting interstate
commerce, and not used merely for private purposes. The company
trucks were actively employed for commercial purposes, with more
than a passive, passing or past connection to commerce. See Jones,
529 U.S. at 855.
V.
Lastly, Cristobal contends that his enhanced sentences for counts
5, 10 and 15 under 18 U.S.C. § 924(c)(1)(C) violate Apprendi v. New
Jersey, 530 U.S. 466 (2000), because the phrase "second or subse-
quent conviction" states an element of the offense that must be
charged in the indictment and found beyond a reasonable doubt.18 We
find no merit to this argument for two reasons.19
17
Before the bombing, the pickup truck driven by Michael even fea-
tured magnetic signs advertising Colonial Iron Works on its doors.
18
18 U.S.C. § 924(c)(1)(C) states:
In the case of a second or subsequent conviction under this sub-
section, the person shall —
(i) be sentenced to a term of imprisonment of not less than
25 years; and
(ii) if the firearm involved is a machine gun or a destruc-
tive device, or is equipped with a firearm silencer or
firearm muffler, be sentenced to imprisonment for life.
The district judge (as fact finder) found Cristobal guilty of possessing an
SKS assault rifle on February 24, 2000, during and in relation to a crime
of violence (Count 5), and guilty of possessing two improvised explosive
devices (placed under the vehicles driven by Michael and Haston) on
February 7, 2000, during and in relation to a crime of violence (Counts
10 and 15). Counts 5, 10, and 15 were correctly recognized as second or
subsequent § 924(c) convictions because Cristobal was convicted on
Count 4 under § 924(c)(1)(A)(iii). Cristobal was sentenced to twenty-five
years on Count 5 under § 924(c)(1)(C)(i) and he received life in prison
on Counts 10 and 15 under § 924(c)(1)(C)(ii).
19
Cristobal also argues that the court should have allowed his enhanced
sentences under § 924(c)(1)(C) to run concurrently. This assertion stands
UNITED STATES v. CRISTOBAL 17
A.
Apprendi held that "[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed stat-
utory maximum must be submitted to a jury, and proved beyond a rea-
sonable doubt." 530 U.S. at 490 (emphasis added). Because
§ 924(c)(1) contains no maximum penalty, the application of
§ 924(c)(1)(C)(i) and § 924(c)(1)(C)(ii) did not expose Cristobal to a
penalty greater than that already allowed under the statute. See United
States v. Harris, 243 F.3d 806, 808-10 (4th Cir. 2001), cert. granted,
122 S. Ct. 663 (2001); United States v. Harrison, 272 F.3d 220, 225-
26 (4th Cir. 2001). Finding that Cristobal’s § 924(c) offenses were
"second or subsequent" offenses under § 924(c)(1)(C)(i) and
§ 924(c)(1)(C)(ii) merely triggered certain mandatory minimum sen-
tences, thus cabining the district court’s discretion when imposing a
sentence for the base offenses in § 924(c)(1), for which the maximum
penalty is life. Harris, 243 F.3d at 226.
B.
Furthermore, notwithstanding the fact that the enhancements under
§ 924(c)(1)(C)(i) and § 924(c)(1)(C)(ii) did not increase the penalties
beyond § 924(c)(1)’s statutory maximum, we find that the enhance-
ments fall squarely within Apprendi’s prior conviction exception.
Apprendi, 530 U.S. at 490 ("Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt."). Cristobal urges us to find that Apprendi over-
ruled the prior conviction exception in Almendarez-Torres v. United
States, 523 U.S. 224 (1998). Unfortunately for Cristobal, this Circuit
has expressly held that Amendarez-Torres survives Apprendi. United
in direct contradiction to § 924(c)(1)(D)(ii), which unambiguously states
that "no term of imprisonment imposed on a person under this subsection
shall run concurrently with any other term of imprisonment imposed on
the person, including any terms of imprisonment imposed for the crime
of violence or drug trafficking crime during which the firearm was used,
carried, or possessed." 18 U.S.C. § 924(c)(1)(D)(ii) (emphasis added).
Hence, the court correctly sentenced Cristobal to consecutive sentences
for his § 924(c)(1) violations.
18 UNITED STATES v. CRISTOBAL
States v. Sterling, 283 F.3d 216, 220 (4th Cir. 2002) (finding that
prior convictions were properly used to enhance a defendant’s sen-
tence under the Armed Career Criminal Statute, 18 U.S.C. § 924(e)).20
In the alternative, Cristobal argues that § 924(c)(1)(C) enhance-
ments should fall outside of the prior conviction exception to
Apprendi because Apprendi "does not specifically address ‘second or
subsequent convictions.’" Appellant’s Opening Brief at 55. This argu-
ment is patently meritless. In order for a § 924(c) conviction to be a
second or subsequent conviction, a defendant obviously must have
been convicted of a first or "prior" § 924(c) offense. We will not
invent a distinction where clearly none exists. We find that the fact
that a § 924(c) conviction may be a "second or subsequent" convic-
tion under that subsection need not be charged in the indictment or
proved beyond a reasonable doubt.
VI.
Accordingly, we affirm all aspects of Cristobal’s conviction and
sentence.
AFFIRMED
20
Cristobal’s argument that the enhanced penalty provision of
§ 924(c)(1)(C) creates a separate offense is also foreclosed by Deal v.
United States, 508 U.S. 129 (1993); see also United States v. Anglin, 284
F.3d 407, 411 (2d Cir. 2002). In Deal, the Court found that the enhanced
penalty provision for a "second or subsequent" § 924(c)(1) conviction
applies where, as in Cristobal’s case, the "second" conviction is obtained
in the same prosecution (and the same judgment) as the "first" convic-
tion. 508 U.S. at 131-35. The Court’s decision in Deal makes sense only
if the fact of a previous "conviction" is a sentencing factor, and not an
element of an additional offense that Congress intended to create. Anglin,
284 F.3d at 411 (emphasis added). If we considered the fact of a "first"
conviction to be an element, then a prosecutor seeking to prove multiple
§ 924(c)(1) offenses against a defendant who had not previously been
convicted of such an offense would have the "impossible task of present-
ing evidence of ‘the finding of guilt by a judge or jury’ which had not
yet occurred." Id. However, if the "first" conviction is a sentencing fac-
tor, then the judge is obviously aware of whether "the finding of guilt"
with respect to more than one § 924(c)(1) violation had occurred. Id.