United States v. Dennis Mahon

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10273
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-00712-DGC-1
DENNIS MAHON,
Defendant-Appellant. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted
May 11, 2015—San Francisco, California
Filed July 20, 2015
Amended October 20, 2015
Before: Sidney R. Thomas, Chief Judge, and Fortunato P.
Benavides,* and John B. Owens, Circuit Judges.
Order;
Opinion by Judge Owens
*
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
2 UNITED STATES V. MAHON
SUMMARY**
Criminal Law
The panel filed (1) an order amending its opinion,
denying petitions for panel rehearing and rehearing en banc,
and denying a motion to stay; and (2) an amended opinion
affirming convictions under 18 U.S.C. § 844(i) and (n) for a
pipe bomb explosion at the City of Scottsdale Office of
Diversity and Dialogue.
In its amended opinion, the panel explained that an
intrinsically non-economic building can qualify under
§ 844(i)’s interstate commerce requirement if the building
actively engages in interstate commerce or activity that
affects interstate commerce, and the fact that an entity is
not-for-profit or municipal in nature does not foreclose a
finding that it is actively engaged in interstate commerce.
The panel held that the record demonstrates that the Diversity
Office regularly engaged in activities that affected interstate
commerce.
Because § 844(i) has the necessary jurisdictional
interstate-commerce element, the panel rejected the
defendant’s facial challenge to its constitutionality. Because
the Diversity Office possessed the requisite nexus to
interstate commerce, the panel also rejected the defendant’s
as-applied challenge to the statute’s constitutionality.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. MAHON 3
COUNSEL
Daniel L. Kaplan (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender, Phoenix,
Arizona, for Defendant-Appellant.
Joan G. Ruffennach (argued), Assistant United States
Attorney; John S. Leonardo, United States Attorney; Mark S.
Kokanovich, Deputy Appellate Chief, Phoenix, Arizona, for
Plaintiff-Appellee.
ORDER
The opinion filed on July 20, 2015 is amended and filed
concurrently with this order.
The panel voted to deny the petition for panel rehearing.
Chief Judge Thomas and Judge Owens voted to deny the
petition for rehearing en banc, and Judge Benavides so
recommends.
The full court has been advised of the suggestion for
rehearing en banc, and no active judge has requested a vote
on whether to rehear the matter en banc. Fed. R. App. P. 35.
The panel voted to deny the motion to stay.
The motion to stay, the petition for rehearing, and the
petition for rehearing en banc are DENIED. No further
petitions shall be entertained.
4 UNITED STATES V. MAHON
OPINION
OWENS, Circuit Judge:
Dennis Mahon appeals his convictions under 18 U.S.C.
§§ 844(i) and (n) for the pipe bomb explosion at the City of
Scottsdale Office of Diversity and Dialogue (“Diversity
Office”), which injured three people and damaged property.
Section 844(i) makes it a crime to damage or destroy, by
means of an explosive, property that is “used in” interstate
commerce or in “activity affecting” interstate commerce.
Mahon contends his convictions are invalid because the
Diversity Office’s activities did not satisfy the statute’s
interstate commerce requirement. We have jurisdiction under
28 U.S.C. § 1291, and we affirm. The Diversity Office was
property “used in” commerce or in “activity affecting”
commerce.
A concurrently filed memorandum disposition addresses
Mahon’s other claims.
I. FACTS
A. The Diversity Office
Scottsdale created the Diversity Office to, among other
things, promote the city as a “tourist destination.” One of the
first of its kind in the country, it engaged in community
outreach with businesses and cultivated relationships with
local and national organizations.
Housed in the city’s Human Resources building, the
Diversity Office worked with chambers of commerce and
partnered with corporations to sponsor and host cultural
UNITED STATES V. MAHON 5
events in Scottsdale. Venues included public parks with free
admission and resort hotels with tickets costing $60 each.
These functions featured crowds ranging from the hundreds
to the thousands, and national speakers who received
appearance fees of up to $15,000. Corporations collectively
donated tens of thousands of dollars annually for some of
these events, and food and entertainment vendors applied and
paid fees to the Diversity Office to participate.
The Diversity Office promoted these functions through
direct mailings, media outlets, and dedicated phone lines. It
also worked with out-of-state organizations (including the
American Speakers Bureau) to identify speakers, prepare
contracts, arrange transportation, and ensure payment.
Several speakers were paid to travel from out of state to
address audiences in Scottsdale.
B. The Bombing
On February 21, 2004, a Scottsdale employee found a
box, addressed to the director of the Diversity Office, in a
library carrel. After sitting behind the library circulation
counter for a few days, the box made its way to the Diversity
Office. On February 26, 2004, the director opened the box,
which triggered a massive pipe bomb explosion. He suffered
severe trauma, requiring multiple surgeries and skin grafts,
and nearly lost a finger. Two other employees endured
injuries, including shrapnel in an eye. The powerful blast
shattered windows, blew a hole in the counter upon which the
box rested, and caused a wall and the ceiling to collapse.
A few months earlier, Mahon left a voicemail message
with the Diversity Office. He identified himself as “Dennis
Mahon of the White Aryan Resistance of Arizona,” used
6 UNITED STATES V. MAHON
racial epithets, and complained about the Diversity Office’s
outreach efforts. He concluded his call by stating: “The
White Aryan Resistance is growing in Scottsdale. There’s a
few white people who are standing up. Take care.” Based in
part on that voicemail, law enforcement initiated a multi-year
undercover investigation, which provided overwhelming
audio, video, forensic, and circumstantial evidence that
Mahon participated in the bombing of the Diversity Office.
After a multi-week trial, Mahon was convicted of
conspiracy to damage buildings and other real property by
means of explosive in violation of 18 U.S.C. §§ 844(i), (n)
(Count 1)1 and malicious damage of a building by means of
explosive in violation of § 844(i) (Count 2). He received a
sentence of 40 years imprisonment.2
II. ANALYSIS
A. Standard of Review
We review de novo if there is sufficient evidence of the
interstate commerce element of an offense. United States v.
Garcia, 768 F.3d 822, 827 (9th Cir. 2014), cert. denied,
135 S. Ct. 1189 (2015). We consider the evidence in the light
most favorable to the prosecution and determine whether
“‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” United
1
Section 844(n) makes conspiring to violate § 844(i) a crime. We refer
to § 844(i) when addressing Counts 1 and 2.
2
Mahon also was convicted of 18 U.S.C. § 842(p)(2)(A), distribution of
information related to explosives (Count 3), and received a concurrent
sentence of 33 months on that count.
UNITED STATES V. MAHON 7
States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en
banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
We review de novo a constitutional challenge to a statute.
Garcia, 768 F.3d at 827.
B. The Diversity Office’s Nexus to Interstate Commerce
Mahon first argues that there was insufficient evidence
that the Diversity Office satisfied § 844(i)’s interstate
commerce requirement. A defendant is guilty of violating
§ 844(i) if he
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[.]3
According to Mahon, the Diversity Office “was a municipal
government entity engaged in classic governmental
functions,” and thus could not possess the requisite interstate
commerce nexus under § 844(i). In so arguing, Mahon relies,
in part, on two cases: Jones v. United States, 529 U.S. 848(2000), and United States v. Lamont, 330 F.3d 1249 (9th Cir.
3
18 U.S.C. § 841(b) defines “interstate commerce or foreign
commerce,” in relevant part, as “commerce between any place in a State
and any place outside of that State, or within any possession of the United
States (not including the Canal Zone) or the District of Columbia, and
commerce between places within the same State but through any place
outside of that State.”
8 UNITED STATES V. MAHON
2003). A review of those cases—as well as other cases
applying § 844(i)—confirms that the Diversity Office
satisfies the statute’s interstate commerce requirement.
Jones addressed if and when § 844(i) applied to a private
residence that did not actively engage in interstate
commerce—“a dwelling place used for everyday family
living,” and not a rental, “a home office or the locus of any
commercial undertaking.” Jones, 529 U.S. at 856, 859. The
Court set out a two-step inquiry to answer this question—first
“into the function of the building itself, and then a
determination of whether that function affects interstate
commerce.” Id. at 854 (internal quotation marks omitted).
The Court stressed that the statute requires “active
employment for commercial purposes, and not merely a
passive, passing, or past connection to commerce.” Id. at
855.
Jones held that § 844(i) did not apply to the traditional
private home. The residence in Jones had only passive links
to interstate commerce: a mortgage, an insurance policy, and
the receipt of natural gas from sources outside Indiana. Id. at
855–56. Applying § 844(i) to a purely private home would
mean that “hardly a building in the land would fall outside the
federal statute’s domain,” as “[p]ractically every building in
our cities, towns, and rural areas is constructed with supplies
that have moved in interstate commerce, served by utilities
that have an interstate connection, financed or insured by
enterprises that do business across state lines, or bears some
other trace of interstate commerce.” Id. at 857.
Lamont addressed § 844(i)’s application to an “ordinary
church building” that was “used for religious purposes, and
not for other activities of a commercial or economic
UNITED STATES V. MAHON 9
character.” 330 F.3d at 1254. Recognizing the “peculiarity
of hunting for commerce in a house of worship,” the panel
reasoned that the church’s business was not commercial, but
“to provide spiritual guidance, comfort, and charity to its
members and to others who may wish to take advantage of its
services.” Id. at 1253, 1255. A church generally did “not
function in a manner that places it in any significant
relationship with commerce, let alone interstate
commerce. . . . Indeed, a church’s function and operations
could not be further removed from what we ordinarily
understand as commercial activity.” Id. at 1254–55.
Nor was there anything about the church’s activities in
Lamont that would bring it within § 844(i)’s jurisdictional
scope. Like the private residence in Jones, the church lacked
active involvement in interstate commerce—all of its
connections were passive: (1) it received gas from Canada,
(2) an out-of-state company insured it, (3) it purchased goods
from out of state, (4) it received funds from out-of-state
members, and (5) it received and distributed publications that
traveled interstate. Id. at 1250, 1253. These attenuated
connections to interstate commerce, like those in Jones, were
insufficient to satisfy § 844(i)’s requirement. Id. at 1255–56.
Jones and Lamont (as well as numerous other cases) teach
us that a building may qualify per se under § 844(i)’s
jurisdictional requirement if it is inherently commercial. A
church and a private residence, without more, are not such
buildings, but an apartment building used as rental property,
Russell v. United States, 471 U.S. 858, 862 (1985); Garcia,
768 F.3d at 829, and a restaurant, United States v. Serang,
156 F.3d 910, 913 (9th Cir. 1998), are.
10 UNITED STATES V. MAHON
Jones and Lamont also teach us that an intrinsically non-
economic building can qualify under § 844(i) if the building
actively engages in interstate commerce or activity that
affects interstate commerce, as there is no categorical
exclusion of any type of building. See Jones, 529 U.S. at 855(“[Section] 844(i) excludes no particular type of
building. . . .”). As we have recognized, a place of worship
can have more than one function for § 844(i) purposes.
United States v. Renteria, 557 F.3d 1003, 1008–10 (9th Cir.
2009) (holding that a synagogue’s operation of preschool
daycare center and gift shop were sufficient for § 844(i)
conviction, even though activities were located in a house of
worship); see also United States v. Grassie, 237 F.3d 1199,
1209-10 (10th Cir. 2001) (church activities can be both
religious and commercial); United States v. Terry, 257 F.3d
366, 369 (4th Cir. 2001) (“An activity can have both a
religious aspect and an economic one. We cannot close our
eyes to the commercial nature of an activity solely because
non-commercial considerations also underlie it.”); United
States v. Rayborn, 312 F.3d 229, 233 (6th Cir. 2002) (“For
purposes of the function analysis, the building’s function is
not limited to its primary use.”).
That an entity is not-for-profit or municipal in nature also
does not foreclose a finding that it is actively engaged in
interstate commerce. There is “[n]othing intrinsic to
the nature of nonprofit entities [that] prevents them
from engaging in interstate commerce.” Camps
Newfound/Owatonna, Inc. v. Town of Harrison, Me.,
520 U.S. 564, 585 (1997). Like non-profit and for-profit
entities, municipalities can “purchase goods and services in
competitive markets, offer their facilities to a variety of
patrons, and derive revenues from a variety of sources, some
of which are local and some out of State.” See id. at 585–86.
UNITED STATES V. MAHON 11
Although the reach of § 844(i) “is not coterminous with
the outer limits of Congress’s Commerce Clause power,” see
Lamont, 330 F.3d at 1251, many cases outside of the § 844(i)
context demonstrate the impact of tourism, events, and
visitors on interstate commerce. See Gulf Coast Hotel-Motel
Ass’n v. Miss. Gulf Coast Golf Course Ass’n, 658 F.3d 500,
505 (5th Cir. 2011) (“bringing out-of-state tourists to hotels
to play golf . . . falls squarely within the Supreme Court’s
Commerce Clause jurisprudence”); United States v. Taylor,
966 F.2d 830, 835-36 (4th Cir. 1992) (finding that a change
in betting laws would have an effect on interstate commerce,
in part, because it would stimulate the state economy by
attracting out-of-state tourists); Gibbs v. Babbitt, 214 F.3d
483, 493–94 (4th Cir. 2000) (acknowledging as interstate
commerce nexus the tourism associated with red wolf
recreational industry, including visitors attending “howling
events” and volunteers coming “from all around the
country”); 907 Whitehead St., Inc. v. Sec’y of U.S. Dep’t of
Agric., 701 F.3d 1345, 1351 (11th Cir. 2012) (holding that
there is a substantial effect on interstate commerce where a
“[m]useum invites and receives thousands of
admission-paying visitors from beyond Florida”; “it is
well-settled that, when local businesses solicit out-of-state
tourists, they engage in activity affecting interstate
commerce”).
Here, we need not decide whether the Diversity Office is
“inherently” a commercial enterprise (like a rental property
or a restaurant). Rather, we need determine only if the
Diversity Office actively engages in interstate commerce, or
activity that affects interstate commerce. See, e.g., Renteria,
557 F.3d at 1008–10; see also Rayborn, 312 F.3d at 234–35
(“church was actively employed in commercial activities” by
using radio broadcasts to increase travel from neighboring
12 UNITED STATES V. MAHON
states, hosting free events and concerts that people traveled to
from those states, and purchasing goods to host picnics and
breakfasts); Terry, 257 F.3d at 370–71 (operation of church
day care center sufficient for § 844(i) conviction, even though
activity was intrastate and did not turn a profit); United States
v. Gillespie, 452 F.3d 1183, 1188 (10th Cir. 2006) (operation
of gift shop and for-fee preschool within place of worship
constituted “‘active employment for commercial purposes’”).
The record demonstrates that the Diversity Office
regularly engaged in activities that affected interstate
commerce. Partnering with numerous corporate sponsors and
local hotels, it planned, hosted, and supported events that
drew thousands of people to Scottsdale. It worked with a
national bureau to arrange for speakers (who were paid
thousands of dollars) to come to the city, and took
applications and payments from vendors to participate in
these events. And it employed several forms of media and a
dedicated phone line to publicize its events.
Unlike the passive participation described in Jones and
Lamont, the Diversity Office generated considerable activity
that affected interstate commerce—indeed, more so than the
activity described in numerous cases upholding a § 844(i)
conviction. Compare United States v. Craft, 484 F.3d 922,
927–28 (7th Cir. 2007) (temporarily vacant rental properties
were within § 844(i)’s scope); United States v. Laton,
352 F.3d 286, 300–01 (6th Cir. 2003) (fire station’s role in
fighting fires constituted active employment in interstate
commerce); United States v. Jimenez, 256 F.3d 330, 339 (5th
Cir. 2001) (as primary location of construction business,
family’s home office was within § 844(i)’s ambit).
UNITED STATES V. MAHON 13
We have little concern that our holding will convert the
destruction of any “municipal building” in the Ninth Circuit
into a federal crime. Any future § 844(i) prosecutions will be
reviewed under the same case-by-case analysis that the
Supreme Court and our precedent demand.4
C. Facial and As-Applied Challenges to § 844(i)’s
Constitutionality
Mahon next cites United States v. Lopez, 514 U.S. 549(1995), and United States v. Morrison, 529 U.S. 598 (2000),
to argue that § 844(i) is facially unconstitutional or
unconstitutional as applied to this case. We have rejected
facial challenges to § 844(i) before, distinguishing it from the
Morrison and Lopez statutes, which lacked any jurisdictional
nexus to interstate commerce. See Garcia, 768 F.3d at
829-30. In Morrison and Lopez, the Court invalidated the
Violence Against Women Act and the Gun-Free School
Zones Act, respectively, because each exceeded Congress’s
authority; the statutes did not regulate economic activity and
they did not require that the activity be connected to interstate
commerce. Lopez, 514 U.S. at 551; Morrison, 529 U.S. at
613, 619.
Unlike the statutes in Morrison and Lopez, § 844(i) has
the necessary jurisdictional element. It requires that the
defendant damage or destroy property “used in interstate or
foreign commerce or in any activity affecting interstate or
foreign commerce” (emphasis added). Thus, we reject
4
The government contends that even if there were an insufficient
interstate commerce nexus to the Diversity Office, Mahon’s convictions
could still stand. This opinion does not address those additional
arguments.
14 UNITED STATES V. MAHON
Mahon’s facial challenge to the statute. See Garcia, 768 F.3d
at 829-30 (rejecting the facial and as-applied challenges to
§ 844(i)).
Mahon insists that even if the statute is facially
constitutional, it is unconstitutional as applied here. He
argues that the statute’s application encroaches into matters
traditionally reserved for the states and that the federal
commerce power cannot extend to the Diversity Office. This
argument is equally unavailing—that the property or the
crime might be traditionally local in nature does not foreclose
§ 844(i)’s application where the property possesses the
requisite nexus to interstate commerce. See United States v.
Gomez, 87 F.3d 1093, 1096 (9th Cir. 1996) (“Even though
arson is a crime that has traditionally been the responsibility
of the states, section 844(i) allows federal jurisdiction over
arson, but limits it to those instances involving property
connected to interstate commerce.”).
Here, despite being a local government entity, the
Diversity Office possessed the requisite nexus to interstate
commerce. Among many activities, it: (1) partnered with
national organizations to facilitate planning, hosting, and
organization of events that attracted thousands of visitors and
tourists to the city, (2) actively participated in at least four
different chambers of commerce to cultivate relationships
outside the city, (3) contracted with and paid for keynote
speakers (budgeting $15,000 for one speaker), (4) advertised
upcoming functions through various forms of media, and
(5) solicited and approved vendors who wanted to sell food
or provide entertainment at events. Given these undisputed
facts and the previous section’s analysis, Mahon’s as-applied
constitutional challenge is denied.
UNITED STATES V. MAHON 15
III. CONCLUSION
For the reasons discussed, Mahon’s challenges fail. The
Diversity Office had a sufficient nexus to interstate
commerce to support Mahon’s prosecution under § 844(i),
and his facial and as-applied contentions lack merit.
AFFIRMED.