United States v. Viscome

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 96-3049
________________________
D. C. Docket No. 96-4-CR-T-25(E)
UNITED STATES,
Plaintiff-Appellee,
versus
MARK DALE VISCOME,
Defendant-Appellant.
________________________
No. 96-3461
________________________
D. C. Docket No. 96-4-CR-T-25(B)
UNITED STATES,
Plaintiff-Appellee,
versus
SAMUEL JOSEPH GENTILE,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(June 26, 1998)
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
1
Gentile knew that Viscome previously had made bombs. Gentile told Viscome
that he needed a bomb because some people were trying to kill him.
2
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
3
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 . . . .
2
Viscome also pled guilty to, and Gentile also was convicted of, using and
carrying a firearm during and in relation to a federal crime of violence in violation of
18 U.S.C. § 924(c)(1). Further, Viscome pled guilty to both making and possessing
a destructive device in violation of 26 U.S.C. § 5861, and Gentile was convicted of
only possessing a destructive device under that same statute.
3
In reviewing the sufficiency of the evidence, we consider the evidence in the
light most favorable to the government and draw all inferences and credibility choices
in favor of the jury’s verdict. United States v. Castleberry, 116 F.3d 1384, 1387-88
(11th Cir.), cert. denied, 118 S. Ct. 341 (1997).
4
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
4
Because Gentile was not indicted under the first prong of § 844(i), we need not
decide whether Gentile could have been convicted under that prong on the theory that
the truck that he attempted to bomb was “property used in interstate or foreign
commerce.” 18 U.S.C. § 844(i).
5
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 (1985));6
see also United States v. Grimes, ___ F.3d ___, No. 96-2916, slip op. at 2688 (11th
5
In Denalli, the defendant was convicted under § 844(i) for burning down the
home of his neighbors, the Federles. At trial, the government introduced evidence
showing that Mr. Federle occasionally used his home computer to produce
memoranda printed out at home and hand-delivered to co-workers at Harris
Corporation, a company engaged in international business. See Denalli, 73 F.3d at
330-31. Because this evidence “did not prove any impact of the memoranda on
Harris’ contract with the Canadian government,” the Denalli court concluded that “no
substantial effect on interstate commerce was proved.” Id.6
The requirement that business property need only be used in an activity that
in the aggregate affects interstate commerce is employed by the Ninth Circuit, which
issued the seminal § 844(i) case upon which the Denalli court relied. See Denalli, 73
F.3d at 330 (citing United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995)); see
also United States v. Gomez, 87 F.3d 1093, 1096 (9th Cir. 1996) (upholding a § 844(i)
conviction for bombing a rental apartment because, “when considered in the
aggregate, this commercial market undeniably has a substantial effect on interstate
commerce.”).
6
Cir. June 8, 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. ___, ___ S. Ct. ___ (1998);8 United States v. Chisolm, 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.
7
Neither Chowdhury nor Grimes cites Denalli.
8
In Belflower, this court examined a sheriff’s deputy’s law enforcement duties
in the aggregate to determine whether his patrol car was used in an activity–namely,
his law enforcement duties–that had a substantial effect on interstate commerce. See
id. at 1462. This court, however, recognized the distinction between commercial and
non-commercial property, and did not adopt a broad rule, similar to the one
recognized in Chowdhury, that law enforcement duties “almost invariably” have a
substantial effect on interstate commerce. Id. To the contrary, the court expressly
declined to “establish a categorical rule that law enforcement is per se an activity that
affects interstate or foreign commerce.” Id. at 1462 n.5.
7
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 330 (quoting Pappadopoulos, 64 F.3d at 526-27).
Consequently, the government’s evidence satisfied the interstate nexus element of §
844(i).9
9
If this court were not bound by Denalli, the government makes a strong
argument that the second prong of § 844(i) requires no more than its language
indicates: namely, that the property at issue be used in “any activity affecting
interstate or foreign commerce.” 18 U.S.C. § 844(i). Even a minimal effect on
interstate commerce, therefore, would be sufficient.
Lopez imposes no additional requirement. Lopez holds simply that Congress
may regulate non-economic activity if Congress has a rational basis to determine that
the proscribed activity (here, arson) substantially affects interstate or foreign
commerce. See United States v. Lopez, 514 U.S. 549, 559 (1995); cf. United States
v. Wright, 117 F.3d 1265, 1270 (11th Cir.) (“Congress had a rational basis to
determine that a total ban on machine guns would have a substantial effect on
interstate commerce.”), cert. denied, ___ U.S. ___, 118 S. Ct. 584 (1997), vacated in
part on other grounds, 133 F.3d 1412 (11th Cir. 1998). A statute regulating non-
8
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.
economic activity necessarily satisfies Lopez if it includes a “jurisdictional element
which would ensure, through case-by-case inquiry,” that the defendant’s particular
offense “affects interstate commerce.” Lopez, 514 U.S. at 561; see also United States
v. Olin Corp., 107 F.3d 1506, 1509 (11th Cir. 1997).
The conclusion that Lopez does not require an individualized finding of
“substantial effect” to sustain a conviction under § 844(i)’s second prong is consistent
with the holdings of several other circuits. See, e.g., United States v. Tocco, 135 F.3d
116, 123-24 (2d Cir.) (rejecting the contention that Lopez requires the government to
show a substantial effect on interstate commerce for purposes of § 844(i)), cert.
denied, ___ U.S. ___, 118 S. Ct. 1581 (1998); United States v. Hicks, 106 F.3d 187,
190 (7th Cir.) (holding that § 844(i) requires the government only to “establish a
minimal connection between the property at issue and some aspect of interstate
commerce . . . .”), cert. denied, ___ U.S. ___, 117 S. Ct. 2425 (1997); United States
v. Melina, 101 F.3d 567, 573 (8th Cir. 1996) (rejecting the contention that the
government must show a “substantial effect” to satisfy the interstate commerce
requirement under § 844(i)). This conclusion also is consistent with decisions of this
court construing other statutes with the same relevant language as § 844(i)–namely,
the “activity affecting interstate commerce” language. See United States v.
Castleberry, 116 F.3d 1384, 1386-87 (11th Cir. 1997) (holding after Lopez that the
interstate nexus element of the Hobbs Act still requires the government to show only
a minimal connection to interstate commerce); United States v. McAllister, 77 F.3d
387, 390 (11th Cir.) (holding the same regarding § 922(g)(1)), cert. denied, ___ U.S.
___, 117 S. Ct. 262 (1996).
9
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) (citing FED. R. CIV. P. 30). 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,
10
Appellant Viscome never challenged the constitutionality of § 2332a(a)(2) in
the district court.
10
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 the government to show in each case that the defendant’s
conduct affects interstate commerce. See 18 U.S.C. § 2332a(a)(2) (Supp. II 1996)
(amending 18 U.S.C. § 2332a(a)(2) (1994)).11
Relying primarily on the Supreme Court’s decision in Lopez, Gentile argues
that Congress exceeded its authority under the Commerce Clause in enacting the
11
In its current form, § 2332a(a)(2) states as follows:
§ 2332a. Use of weapons of mass destruction
(a) Offense against a national of the United States or within the United
States.–A person who, without lawful authority, uses, threatens, or
attempts or conspires to use, a weapon of mass destruction . . .
...
(2) against any person within the United States, and the results of such
use affect interstate or foreign commerce or, in the case of a threat,
attempt, or conspiracy, would have affected interstate or foreign
commerce
...
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) (Supp. II 1996).
11
version of § 2332a(a)(2) under which he was convicted.12 In Lopez, the Supreme
Court struck down the Gun-Free School Zones Act (“GFSZA”) as exceeding
Congress’s power under the Commerce Clause. Lopez, 514 U.S. at 552. In so doing,
the Court noted (a) that the GFSZA did not regulate any economic activity, (b) that
it contained no interstate nexus requirement to “ensure, through case-by-case inquiry,
that the firearm possession in question affects interstate commerce,” and (c) that
Congress made no findings regarding the effects of the proscribed activity on
interstate commerce. Id. at 561-63.
The version of § 2332a(a)(2) under which Gentile was convicted differed from
the GFSZA in one important aspect. In enacting the original § 2332a(a)(2), Congress
made explicit findings that the proscribed activity in issue substantially affected
interstate commerce, as follows:
The Congress finds that the use and threatened use of weapons of mass
destruction, as defined by subsection (b) of this section, gravely harm the
national security and foreign relations interests of the United States,
seriously affect interstate and foreign commerce, and disturb the
domestic tranquility of the United States.
H.R. CONF. REP. NO. 102-405, at 46 (1991). Considering Congress’s experience in
12
Gentile also argues that the fact that Congress, after Lopez, amended §
2332a(a)(2) to include an interstate nexus element proves as a matter of law that the
original § 2332a(a)(2) was unconstitutional. We disagree. For purposes of
determining whether a conviction under a statute is valid, the courts independently
must determine whether that statute is constitutional.
12
regulating explosives and their effects,13 we accord these findings substantial
deference. See Turner Broad. Sys., Inc. v. Federal Communications Comm’n, ___
U.S. ___, 117 S. Ct. 1174, 1189 (1997) (“In reviewing the constitutionality of a
statute, ‘courts must accord substantial deference to the predictive judgments of
Congress.’”).14 Based on these findings, we conclude that Congress acted within its
Commerce Clause authority in enacting the pre-amendment version of § 2332a(a)(2);
thus, the district court did not commit plain error in not declaring § 2332a(a)(2)
unconstitutional.15
13
See Organized Crime Control Act of 1970, 18 U.S.C. §§ 842-43 (prohibiting,
among other things, the storage of explosives without a federal permit); 116 CONG.
REC. 35,298-99 (1970) (detailing evidence showing the need for federal regulation of
explosives and explaining the provisions of a proposed bill designed to achieve that
end–the subsequently enacted Organized Crime Control Act of 1970); Russell v.
United States, 471 U.S. 858, 860 n.5 (1985) (noting the evidence and hearings leading
to the congressional regulation of explosives in 1970); see also United States v. Kirk,
105 F.3d 997, 1001-02 (5th Cir.) (Higginbotham, J., concurring) (noting that the
federal government has regulated explosives heavily for over twenty-five years), cert.
denied, 118 S. Ct. 47 (1997); United States v. Dawson, 467 F.2d 668, 673 (8th
Cir.1972) (“There being a rational basis upon which Congress properly could have
determined that the misuse of explosive materials is one activity which, as a class,
affects commerce, the Government need not specifically allege and prove a connection
between interstate commerce and the conduct made criminal by § 842(h).”).
14
See also Turner Broad. Sys., Inc. v. Federal Communications Comm’n, 512
U.S. 622, 666 (1994) (stating that the courts’ role is “to assure that, in formulating its
judgments, Congress has drawn reasonable inferences based on substantial
evidence.”).
15
Gentile also argues that the original § 2332a(a)(2) was impermissibly broad
to the extent it covered activities with no effect on interstate commerce. We do not
13
D. Viscome’s § 2332a(a)(2) Conviction
While Appellant Viscome also challenges the constitutionality of the original
§ 2332a(a)(2), the government contends that Viscome has waived this challenge by
virtue of his guilty plea. We pretermit the issue regarding whether Viscome waived
his challenge to the constitutionality of the pre-amendment § 2332a(a)(2) because,
as discussed above, the district court did not commit plain error in not declaring the
original § 2332a(a)(2) unconstitutional.16
IV. CONCLUSION
For the foregoing reasons, Appellants’ convictions and sentences are
AFFIRMED.
consider this contention because, as discussed above, Gentile’s conduct had the
requisite effect on interstate commerce. See United States v. Raines, 362 U.S. 17, 21
(1960) (“One to whom application of a statute is constitutional will not be heard to
attack the statute on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be unconstitutional.”).
16
Appellants also contend (1) that there was insufficient evidence to support
Appellants’ convictions under 18 U.S.C. § 924(c)(1), and (2) that the district court
erroneously sentenced them under § 924(c)(1). Additionally, Gentile contends that
(1) the district court abused its discretion by admitting evidence of Gentile’s abusive
acts toward his estranged wife; (2) the district court should have declared a mistrial
based on an improper jury instruction; (3) his sentence constituted cruel and unusual
punishment; and (4) the district court at sentencing (a) erred in finding that Gentile’s
offense involved an offer of money and (b) engaged in impermissible double
counting. Each of these contentions is without merit.
14