United States v. Tiscorena Renteria ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50471
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00138-LAB
MANUEL TISCORENA RENTERIA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
December 10, 2008—Pasadena, California
Filed February 20, 2009
Before: Harry Pregerson, Dorothy W. Nelson and
David R. Thompson, Circuit Judges.
Opinion by Judge Thompson
2019
2022 UNITED STATES v. RENTERIA
COUNSEL
Kyle W. Hoffman, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
David Zugman, San Diego, California, for the defendant-
appellant.
OPINION
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)
UNITED STATES v. RENTERIA 2023
insufficient evidence was presented for a conviction. We dis-
agree 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 syna-
gogue 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 Thurs-
day 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 ele-
ment 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 chal-
lenged jury instruction was improper. United States v. Ren-
2024 UNITED STATES v. RENTERIA
teria, 187 F. App’x 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 “sub-
stantial,” 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 duplicit-
ous. The district court denied the motion. The case went to
trial and Renteria was found guilty again. This appeal fol-
lowed.
II Discussion
A. Allegation of Jurisdictional Element
The first issue we consider is whether the jurisdictional ele-
ment 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 com-
merce, and in an activity affecting interstate and
foreign commerce; in violation of Title 18, United
States Code, Section 844(i). (Emphasis added.)
UNITED STATES v. RENTERIA 2025
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
[1] 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.2026 UNITED STATES v. RENTERIA
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 stat-
ing:
Renteria argues that the indictment itself was defec-
tive 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 com-
merce was “substantial.”
Renteria, 187 F. App’x. at 706.
[2] In Renteria’s first appeal, we rejected the same argu-
ment 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 Com-
merce
[3] In Jones v. United States, 529 U.S. 848, 854 (2000), the
Supreme Court held that Congress never intended to exercise
UNITED STATES v. RENTERIA 2027
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. (inter-
nal 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.
Renteria argues the indictment in his case is defective
because it does not allege facts showing how ancillary func-
tions of the synagogue affected interstate or foreign com-
merce. 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 build-
ing’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.
[4] Renteria’s contention for a heightened requirement for
allegations in an indictment when the alleged violation of
1
Renteria cites to Lamont for the proposition that a house of worship is
not normally used for commercial purposes, but cites to no authority in
support of his claim that specific connections to interstate or foreign com-
merce must be included in the indictment if the violation of § 844(i)
involves a house of worship.
2028 UNITED STATES v. RENTERIA
§ 844(i) involves a house of worship has no support in the
statute or elsewhere. Such heightened allegations are not nec-
essary.
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 instruction.
[5] An indictment is considered duplicitous if a single
count combines two or more different offenses. United States
v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976). A danger
of duplicity is that a jury could find a defendant guilty on a
count without reaching a unanimous verdict on the commis-
sion of an offense. Id.Renteria contends that the allegation, “used in interstate
and foreign commerce, and in an activity affecting interstate
commerce,” contains two separate offenses and the indict-
ment, therefore, is duplicitous. It is Renteria’s position that,
because the district court refused to give a unanimity instruc-
tion and used a general verdict form, it is unknown whether
the jurors arrived at a unanimous verdict. This argument lacks
merit. The indictment is not duplicitous and no unanimity
instruction was required.
[6] Some crimes can be committed by several alternative
means. It is proper for the government to charge different
means of a crime connected by conjunctions in the indictment
when the means are listed disjunctively in the statute. Id. at
838. The allegation of the count at issue, “used in interstate
and foreign commerce, and in an activity affecting interstate
or foreign commerce,” describes a single element. The allega-
tion follows the language of the statute but includes “and”
instead of “or” between the two methods of meeting the
interstate/foreign commerce element of 18 U.S.C. § 844(i).
That statute requires the following elements for a violation
UNITED STATES v. RENTERIA 2029
such as that charged in this case: a defendant must (1) mali-
ciously; (2) damage or destroy a building; (3) by means of
fire; and (4) the building must have been “used in interstate
or foreign commerce or in any activity affecting interstate
or foreign commerce.” 18 U.S.C. § 844(i) (emphasis added).
“When a statute specifies two or more ways in which an
offense may be committed, all may be alleged in the conjunc-
tive in one count and proof of any of those acts conjunctively
charged may establish guilt.” United States v. Urrutia, 897
F.2d 430, 432 (9th Cir. 1990) (citations omitted).
The district court instructed the jury that the fourth element
of § 844(i) was:
that the building or other property that was damaged
or destroyed was used in interstate or foreign com-
merce or in any activity substantially affecting inter-
state or foreign commerce. What the fourth element
means is this: a building is used in an activity sub-
stantially affecting interstate commerce if the build-
ing is actively used for commercial purposes and not
merely having a passive connection to commerce.
Ordinarily, a religious house of worship would not
be involved in an activity affecting commerce
because a house of worship exists for religious pur-
poses and not for having activities that are commer-
cial or economic in character. However, a house of
worship may affect interstate commerce if it takes on
economic functions unrelated to worship.
[7] The wording of this instruction is not open to jury con-
fusion. The indictment is not duplicitous and the district court
did not err in failing to give a unanimity instruction. See
United States v. Parker, 991 F.2d 1493, 1498 (9th Cir. 1993).
C. Evidence Supporting Conviction
The final issue is whether sufficient evidence was presented
for Renteria’s conviction of violating 18 U.S.C. § 844(i).
2030 UNITED STATES v. RENTERIA
In the first appeal, we summarized the following facts
which had been established:
The evidence presented showed that the gift shop
space was rented by the Synagogue to an indepen-
dent third party at a fixed monthly rate. The shop
averaged $2,000 to $3,000 a month in sales of goods
from throughout the United States and Israel. The
gift shop was open to the public for walk-in sales
and also filled orders placed over the telephone and
internet.
Renteria, 187 F. App’x at 707.
Different evidence was presented at the second trial. At the
second trial, the evidence included proof that (1) the syna-
gogue rented the gift shop to an independent third party at a
fixed monthly rent; (2) the gift shop sold $1,200 to $1,500
worth of goods each month and more during certain months
and holidays; (3) the gift shop was open to the general public;
and (4) the synagogue had an internet link to the gift shop on
its website that listed the hours of operation, telephone num-
ber, and items for sale.
Further, in the second trial, the government introduced evi-
dence pertaining to the preschool daycare center. Children of
synagogue members and non-members attended the center.
For children who attended 5 days each week, the fee was
approximately $5,000 a year. Teachers employed by the syna-
gogue were paid $16 to $17 an hour on average. To work as
a teacher, one did not need to be Jewish or a member of the
synagogue.
Renteria argues the evidence was insufficient to support his
conviction because (1) testimony by the synagogue’s Execu-
tive Director, Michael Moskowitz, was hearsay and thus was
improperly-admitted into evidence; (2) there was no evidence
regarding how much of the gift shop’s sales could be attri-
UNITED STATES v. RENTERIA 2031
buted to non-religious items, and the gift shop had a substan-
tial relationship to the synagogue’s religious mission; and (3)
the operation of the gift shop could not be used to satisfy the
federal jurisdictional requirement as to commercial use of the
synagogue building.
1. Testimony of Moskowitz
Moskowitz was the Executive Director of the synagogue.
As part of his duties, he oversaw the finances, security,
accounting, and other non-religious matters for the syna-
gogue.
[8] Moskowitz’s testimony was not hearsay. He was the
individual with direct knowledge of activities taking place at
the synagogue, the synagogue’s preschool daycare center, the
fee charged for the daycare services, availability of services
to non-members, how the gift shop was run, the profit made
at the gift shop, the rent charged for the gift shop space, the
terms of the contract regarding the gift shop, the merchandise
for sale at the shop, and the available methods for purchase
of such merchandise. Moskowitz’s testimony was properly
admitted into evidence.
2. Religious Nature of Gift Shop
[9] Renteria argues the gift shop’s operation cannot be con-
sidered a link to interstate or foreign commerce because no
evidence was presented as to how much of the shop’s sales
pertained to religious items and because the gift shop operated
in furtherance of the synagogue’s religious mission. These
contentions are irrelevant. While a house of worship may
engage in activities that primarily further worship, it may also
engage in other activities that are commercial in nature.
United States v. Grassie, 237 F.3d 1199, 1210 (10th Cir.
2001). The fact that the gift shop’s sales may further the syna-
gogue’s religious purposes does not take the shop’s operation
out of the realm of commercial activity. The district court did
2032 UNITED STATES v. RENTERIA
not err in considering the activities of the gift shop in deter-
mining the synagogue’s link to interstate or foreign com-
merce.
3. Nexus to Interstate or Foreign Commerce
Renteria contends that the synagogue’s operation, by itself,
could not possibly fulfill the commercial jurisdictional ele-
ment of 18 U.S.C. § 844(i), and the ancillary functions of the
gift shop and the preschool cannot bring the synagogue’s reli-
gious operations within § 844(i)’s commercial activity
requirement.
[10] Although not addressed in this circuit, see Lamont,
330 F.3d at 1255, the Tenth, Sixth, and Fourth Circuits have
held that certain religious buildings have fallen within the
commercial activity requirement of § 844(i) through ancillary
activities such as daycare, radio stations, and gift shops.
United States v. Gillespie, 452 F.3d 1183 (10th Cir. 2006);
United States v. Rayborn, 312 F.3d 229 (6th Cir. 2002);
United States v. Terry, 257 F.3d 366 (4th Cir. 2001).
Gillespie from the Tenth Circuit is directly on point on this
issue. That case involved the fire-bombing of the outside door
alcove of a Jewish synagogue in Oklahoma City, Oklahoma,
and a prosecution under 18 U.S.C. § 844(i). Gillespie, 452
F.3d at 1185. On appeal following his conviction, Gillespie
argued that insufficient evidence was introduced to support
the jury’s conclusion that the synagogue was a building used
in or affecting an activity in interstate commerce within the
meaning of § 844(i). Id. at 1186. The court recognized that the
synagogue operated as a place of worship, but that it had addi-
tional functions, including the operation of a preschool and a
gift shop. Id. at 1188. These additional functions constituted
commercial use such that the function of the building affected
interstate commerce. Id.; see also U. S. v. Terry, 257 F.3d at
369-70.
UNITED STATES v. RENTERIA 2033
[11] Viewing the evidence in the present case concerning
the operation of the gift shop and the preschool daycare center
in the light most favorable to the government, a rational trier
of fact could have found that these commercial uses were not
passive, passing, or past connections to commerce and that
the synagogue was used for interstate or foreign commercial
purposes in addition to religious purposes. The evidence pre-
sented was sufficient to support Renteria’s conviction under
18 U.S.C. § 844(i).
AFFIRMED.