Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding D.C. No.CR-04-00138-LAB.
The opinion of the court was delivered by: Thompson, Senior Circuit Judge
Argued and Submitted December 10, 2008 -- Pasadena, California
Before: Harry Pregerson, Dorothy W. Nelson and David R. Thompson, Circuit Judges.
Opinion by Judge Thompson
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) insufficient evidence was presented for a conviction. We disagree and affirm his conviction.
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 synagogue 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 Thursday 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 element 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 challenged jury instruction was improper. United States v. Ren- 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 "substantial," 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 duplicitous. The district court denied the motion. The case went to trial and Renteria was found guilty again. This appeal followed.
A. Allegation of Jurisdictional Element
The first issue we consider is whether the jurisdictional element 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), ...