US v. Disanto
Case Date: 06/14/1996
Court: United States Court of Appeals
Docket No: 95-1584
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July 12, 1996 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________ No. 95-1584 UNITED STATES, Appellee, v. GERARD DISANTO, Defendant - Appellant. ____________ ERRATA SHEET The opinion of this Court issued on June 14, 1996, is amended as follows: Page 20, line 23, is amended by inserting "of the impact" after "assessment" in the United States v. Rivera-G mez, 67 F.39 _____________ ____________ 993, 998 (1st Cir. 1995), parenthetical. Page 49, last line, is amended by changing "Id. at 872" to ___ "Morillo, 8 F.3d at 872". _______ UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 95-1584 UNITED STATES, Appellee, v. GERARD DISANTO, Defendant - Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Reginald C. Lindsay, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Coffin, Senior Circuit Judge, ____________________ and Cyr, Circuit Judge. _____________ _____________________ Paul J. Haley, with whom Law Office of Paul J. Haley, was on _____________ ___________________________ brief for appellant. John M. Griffin, Assistant United States Attorney, with whom _______________ Donald K. Stern, United States Attorney, was on brief for ________________ appellee. ____________________ June 14, 1996 ____________________ TORRUELLA, Chief Judge. After a nine-day trial, TORRUELLA, Chief Judge ____________ Appellant Gerard DiSanto ("Appellant") was convicted for attempted arson in violation of 18 U.S.C. 844(i), the federal arson statute, which makes it a federal crime to destroy by means of fire property used in or affecting interstate or foreign commerce; and for conspiracy to commit arson in violation of 18 U.S.C. 371. Appellant appeals his conviction as well as his sentence on a number of grounds. For the following reasons, we affirm the district court's judgment and sentence in all respects. FACTUAL AND PROCEDURAL BACKGROUND FACTUAL AND PROCEDURAL BACKGROUND _________________________________ Presenting the facts in the light most hospitable to the jury's verdict, see United States v. Staula, 80 F.3d 596, 599 ___ _____________ ______ (1st Cir. 1996); United States v. Ortiz, 966 F.2d 707, 711 (1st _____________ _____ Cir. 1992), cert. denied, 506 U.S. 1063 (1993), the evidence ____________ presented during the nine-day trial tended to show the following. The Galleria II was a family-style restaurant and pub serving Italian food and pizza, located in Westport, Massachusetts (the "restaurant"), which was owned by three partners: Appellant, Robert Ashness ("Ashness") and Dr. Louis Aguiar ("Dr. Aguiar"). The restaurant was located in a building which Appellant and Ashness leased from Dr. Aguiar and Fernando L pes ("L pes"). The lease agreement provided, among other things, for a monthly rent of $3,600 and an option for the restaurant owners to purchase L pes' share in the property. The restaurant received natural gas and food supplies that moved -2- through interstate commerce. Although very successful during the summer months of 1991, its first year of operation, the Galleria II's business proved to be seasonal and business slowed considerably after the summer. In addition to the slow business, there were significant problems with the building's water and septic systems and the relationship between Appellant and Dr. Aguiar deteriorated over who was responsible to pay for the required improvements: the restaurant, as tenant, or Dr. Aguiar and L pes, as landlords. Among the Galleria II's employees, Randy Schaller ("Schaller") served as chef and as kitchen manager; and Shelley McKenna ("McKenna") served as the bar manager and hostess and was also responsible for the cash and bookkeeping. Both Schaller and McKenna had longstanding business relationships with Appellant and considered him a friend. Beginning in the fall of 1991, Appellant began discussing with Schaller the need for renovating the restaurant. In addition to correcting the water and septic systems, Appellant proposed that an outside roof-top deck be installed for the purpose of increasing liquor sales during the peak summer season. Appellant told Schaller that he wanted to finance the renovations by burning the top of the restaurant above the second floor as the insurance proceeds from the fire would provide funds for the renovations. As part of his plan, Appellant increased the Galleria II's existing insurance coverage (building, contents, and premises liability) by purchasing $90,000 of business interruption insurance, which became -3- effective December 3, 1991, two months before the arson attempts. The proceeds from the business interruption coverage could have been used for any purpose, including for the repair of the water and septic systems. On or about February 19, 1992, after unsuccessfully attempting to hire someone else to burn the top of the restaurant, Appellant attempted to set a fire himself by igniting a stack of papers in the attic of the restaurant. The fire burned out, however, before it could fully ignite the exposed wood frame. Both Schaller and McKenna, who had been drawn to the attic because of the open attic door, discovered Appellant standing over the burning stack of papers and refused to get involved. During the days following his first failed attempt, Appellant asked Schaller if he would help by pouring gasoline on the attic rafters as part of a plan whereby Appellant would return later to ignite the gasoline. After repeatedly declining to get involved, Schaller finally agreed to assist Appellant. Shortly after noon on February 23, 1992, Schaller poured gasoline, as Appellant had requested, onto the exposed attic rafters and insulation and informed Appellant that he had done so. About mid-afternoon, Appellant and Schaller left the restaurant. At approximately 4:00 p.m. that same afternoon, the Westport Fire Department responded to a complaint from the restaurant that there was a strong odor of gas, which both patrons and employees at the restaurant had detected. After evacuating the building, the firefighters discovered the -4- gasoline-soaked boards and insulation as well as evidence of charring on the attic floor and ceiling. According to the fire department, the charring was unrelated to the much larger area of the attic that was saturated with gasoline, representing a separate, previous attempt to start a fire. A few days later, Schaller admitted to the police that he had poured the gasoline. Although Appellant told law enforcement officials that he would fire Schaller when they informed him of Schaller's confession, Appellant never fired Schaller, and Schaller worked at the restaurant until it closed. On December 6, 1993, Schaller entered a plea of guilty to the federal indictment charging him with the second attempted arson. Pursuant to his plea agreement, he agreed to cooperate with law enforcement officials. As part of that cooperation, Schaller engaged in four conversations -- three in person and one by telephone -- with Appellant that were recorded by law enforcement agents.1 In July 1994, a two count indictment was returned by the federal grand jury charging Appellant with attempted arson of a building affecting interstate commerce under 18 U.S.C. 844(i) and conspiracy to commit arson under 18 U.S.C. 371. Prior to trial, Appellant filed a motion in limine to exclude from __________ evidence the four recorded conversations between Appellant and Schaller, which included incriminating statements made by ____________________ 1 The conversations occurred on February 24, March 1, March 4, and May 25 of 1994. -5- Appellant. After a hearing, the court denied the motion and admitted the tapes after certain portions were excised. During a nine-day trial on the merits, in which nine witnesses testified for the prosecution (including Schaller, pursuant to his plea agreement), the prosecution presented its theory that Appellant attempted to burn the restaurant in order to recover insurance proceeds to finance renovations and improvements of the restaurant. The defense called three witnesses, including McKenna. Among other matters, the witnesses testified that Schaller's reputation for truthfulness was "zero;" that the business interruption insurance was purchased as a result of significant storms which had caused the Galleria II to close; that, after leaving with Schaller during the afternoon of February 22, Appellant had no intention of returning to the restaurant; and that Appellant was with McKenna during the evening of February 22, planning their next day's business trip. During the trial, Appellant moved for a mistrial, which was denied, on the grounds that improper testimony regarding his ownership of a "gay night club" was prejudicial. Both at the close of the government's case-in-chief and at the close of all the evidence, Appellant moved for judgment of acquittal on the ground that the evidence was insufficient to establish that the Galleria II was a building affecting interstate commerce. The district court denied both motions. -6- Based on the foregoing and other evidence, the jury convicted Appellant on February 10, 1995, on both counts of attempted arson and conspiracy to commit arson. Appellant subsequently moved for a new trial which the district court denied. On May 25, 1995, the district court sentenced Appellant to a term of seventy-eight (78) months' imprisonment, imposed a fine of $12,500, restitution to the Westport Police Department in the amount of $386, and ordered supervised release for three (3) years. Appellant appeals both his conviction and his sentence. We have jurisdiction pursuant to Rule 4(b) of Federal Rules of Appellate Procedure. DISCUSSION DISCUSSION __________ I. Appellant's Motions for Judgment of Acquittal I. Appellant's Motions for Judgment of Acquittal Appellant claims reversible error in the denial of his motions for judgment of acquittal. See Fed. R. Crim. P. 29. ___ Below, Appellant based his motions for acquittal on sufficiency of the evidence grounds, which included the argument that there was insufficient evidence to prove the requisite nexus to interstate commerce under the federal arson statute.2 On ____________________ 2 The federal arson statute provides: 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 . . . [is guilty of a crime]. 18 U.S.C. 844(i) (1994). -7- appeal, he raises new arguments based on the Supreme Court's decision in United States v. L pez, ___ U.S. ___, 115 S. Ct. 1624 _____________ _____ (1995), which struck down the Gun Free School Zone Act, 18 U.S.C. 922(q), as exceeding Congress' authority under the Commerce Clause3 to regulate interstate commerce. Appellant now argues that, in light of L pez, the federal arson statute is _____ unconstitutional and that, accordingly, the district court lacked subject matter jurisdiction. In the alternative, Appellant argues that under L pez there is insufficient evidence to prove _____ that the Galleria II was a building that "substantially affected" interstate commerce. Specifically, Appellant now claims that this is a simple state arson case which Congress has no power under the Commerce Clause to federalize and thereby undercut Massachusetts' power to prosecute Appellant under its own arson statute, Mass. Gen. Laws Ann. ch. 266, 1. In support of this argument, Appellant insists that L pez effectively overruled the Supreme _____ Court's earlier decision in Russell v. United States, 471 U.S. _______ _____________ 858, 859 (1985), which concluded that the federal arson statute expresses Congressional intent to exercise its full power under the Commerce Clause. Id. (holding that rental property was __ property used in an activity affecting interstate commerce within the meaning of the federal arson statute). Consequently, ____________________ 3 Under the Commerce Clause, Congress is empowered "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, 8, cl. 3. -8- Appellant challenges the "continuing viability" of United States _____________ v. Medeiros, 897 F.2d 13 (1st Cir. 1990), in which we held that ________ after Russell rental property is per se "unquestionably _______ _______ sufficiently connected to interstate commerce to confer jurisdiction" and satisfy the jurisdictional element of the federal arson statute. Id. at 16-17. Appellant, thus, urges us __ to reexamine our holding in Medeiros in light of L pez' ________ _____ "substantially affect" nexus requirement between the illegal activity and interstate commerce, and reverse his convictions on the grounds that the evidence does not prove that the attempted arson of the Galleria II "substantially affects" interstate commerce. 1. The Constitutionality of Section 844(i) 1. The Constitutionality of Section 844(i) A. Standard of Review A. Standard of Review Although Appellant failed to raise his L pez-based _____ challenge below,4 a claim that a statute is unconstitutional or that the court lacked jurisdiction may be raised for the first time on appeal. United States v. Seuss, 474 F.2d 385, 387 n.2 _____________ _____ (1st Cir.), cert. denied., 412 U.S. 928 (1973); see also, Fed. R. _____________ ________ Crim. P. 12(b)(2) (lack of jurisdiction may be noticed by the court at any time). We review a determination of the ____________________ 4 Appellant did not make these L pez-based arguments below as _____ L pez had not yet been decided. We note that Appellant does not _____ argue that we must consider L pez even though rendered after his _____ trial because it establishes a new rule for criminal prosecutions and must be applied retroactively. See Griffith v. Kentucky, 479 ___ ________ ________ U.S. 314 (1987); United States v. Melvin, 27 F.3d 703, 707 n.4 ______________ ______ (1st Cir. 1994). We need not address this issue, or decide whether this case falls within Griffith, because, regardless of ________ waiver, Appellant does not prevail on the merits. -9- constitutionality of a federal statute de novo. See United _______ ___ ______ States v. D az-Mart nez, 71 F.3d 946, 953 (1st Cir. 1995) ______ _____________ (applying, without explicitly stating so, de novo review to ________ L pez-based constitutional challenge not raised during pre-L pez _____ _____ proceedings); United States v. Sherlin, 67 F.3d 1208, 1213-14 _____________ _______ (6th Cir. 1995) (applying de novo review to L pez-based ________ _____ constitutional challenge to the federal arson statute), cert. _____ denied, 116 S. Ct. 795 (1996); United States v. Aguilar-Aranceta, ______ _____________ ________________ 957 F.2d 18, 21 (1st Cir. 1992) (reviewing de novo questions of _______ constitutional law). But see United States v. Spires, 79 F.3d _______ _____________ ______ 464, 465 (5th Cir. 1996) (reviewing only for plain error L pez- _____ based constitutional challenge not raised below during pre-L pez _____ proceedings); United States v. Dupaquier, 74 F.3d 615, 619 (5th _____________ _________ Cir. 1996) (same); Daigle v. Maine Medical Center, Inc., 14 F.3d ______ __________________________ 684, 687-88 (1st Cir. 1994) ("The raise-or-waive rule applies with full force to constitutional challenges."). Regardless of what standard of review we apply, the result is the same since even under the more favorable de novo standard, we reject ________ Appellant's constitutional and jurisdictional challenges, finding that L pez in no way provides grounds for reversal in this case. _____ B. Discussion B. Discussion As with the federal arson statute at issue here, Congress has often invoked its authority under the Commerce Clause to federalize criminal activity. Appellant points to -10- L pez and its invalidation of the Gun Free School Zone Act5 as _____ evidence that the Supreme Court's present position is to restrictively interpret the Commerce Clause when it is used as a foundation for a criminal statute. See L pez, 115 S. Ct. at 1631 ___ _____ n.3 ("Under our federal system, the 'States possess primary authority for defining and enforcing the federal law.'" (quoting Brecht v. Abrahamson, 507 U.S. 619, 635 (1993))). The L pez ______ __________ _____ Court recognized three categories of activity which Congress may regulate under the Commerce Clause: (i) "the use of the channels of interstate commerce"; (ii) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; and (iii) "those activities that substantially affect interstate commerce." L pez, 115 S. Ct. at 1629-30. _____ After L pez, the Court explained in United States v. _____ ______________ Robertson, ___ U.S. ___, 115 S. Ct. 1732 (1995) (per curiam), _________ that these three bases of congressional authority are analytically distinct, reaffirming the distinction between activities engaged in interstate commerce and purely intrastate activities having a substantial effect on interstate commerce. See Robertson, ___ U.S. at ___, 115 S. Ct. at 1733. The Court ___ _________ stated that the "'affecting commerce' test was developed in our jurisprudence to define the extent of Congress' power over purely intrastate commercial activities that nonetheless have _____ ____________________ 5 This Act made it a federal offense to knowingly possess a firearm at a place that the individual knows or has reasonable cause to believe is a school zone. -11- substantial interstate effects." Id. at ___, 115 S. Ct. at 1733 _____ ___ (emphasis in original) (concluding that transporting equipment and workers from out of state fell within 18 U.S.C. 1962(a)'s alternative criterion without regard to the "affecting commerce" test). We consider the federal arson statute and the Court's pre-L pez holding in Russell in light of this framework, _____ _______ concluding that L pez does not invalidate 18 U.S.C. 844(i). _____ First, by its plain language, Section 844(i) clearly falls under both the second and third L pez categories in that it protects _____ property that is either "used in interstate or foreign commerce __ or in any activity affecting interstate or foreign commerce." 18 _______________ U.S.C. 844(i) (emphasis added). Second, the federal arson statute contains the requisite "jurisdictional element" and thus is readily distinguishable from the provision invalidated in L pez. As we _____ recently noted in D az-Mart nez, the Supreme Court in L pez _____________ _____ "found significant that the statute in that case, 18 U.S.C. 922(q) [the federal firearms possession statute], 'contain[ed] no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.'" D az-Mart nez, 71 F.3d at 953 (quoting _____________ L pez, 115 S. Ct. at 1631). We held that, unlike L pez, the _____ _____ jurisdictional element was present in 18 U.S.C. 922(k) because it contains a specific requirement that the firearm with the obliterated serial number have been "shipped or transported in -12- interstate or foreign commerce." 18 U.S.C. 922(k); D az- _____ Mart nez, 71 F.3d at 953 (holding that "[w]hatever the reach of ________ L pez, it does not invalidate 18 U.S.C. 922(k)"). Here, too, _____ the federal arson statute contains the requisite jurisdictional element which similarly ensures that, case-by-case, the property damaged by the arson must have been "used in interstate . . . commerce or in an activity affecting interstate . . . commerce." 18 U.S.C. 844(i). Third, while the federal arson statute is similar to that struck down in L pez in that it does not regulate commercial _____ or economic activity, see United States v. Pappadopoulos, 64 F.3d ___ _____________ _____________ 522, 526-27 (9th Cir. 1995), it does regulate the damage or destruction of business property that satisfies the requisite interstate nexus, see Russell, 471 U.S. at 860-62 ("Congress at ___ _______ least intended to protect all business property"); United States _____________ v. Flaherty, 76 F.3d 967, 974 (8th Cir. 1996). Particularly in ________ the absence of any mention of Russell in the majority opinion of _______ L pez, we can find no reason to conclude that L pez invalidates _____ _____ Russell's analysis of Section 844(i)'s purpose and legislative _______ history or its conclusion that the federal arson statute constitutionally regulates arson of business property that satisfies the requisite jurisdictional element. Russell, 471 _______ U.S. at 860-62. After all, whatever L pez' reach, it certainly _____ did not purport to overrule cases upholding application of the Commerce Clause power to wholly intrastate activities satisfying -13- the requisite nexus to interstate commerce. See United States v. ___ _____________ Genao, 79 F.3d 1333, 1336 (2d Cir. 1996). _____ Furthermore, we reject Appellant's argument that Section 844(i) is unconstitutional because it improperly intrudes into Massachusetts' primary authority for defining and enforcing the criminal law. By virtue of the fact that the federal arson statute is a criminal law it indeed intrudes upon states' traditional dominion over the criminal law. L pez, 115 S. Ct. at _____ 1631 n.3 ("Under our federal system, the 'States possess primary authority for defining and enforcing the criminal law.'" (quoting Abrahamson, 507 U.S. at 635)). However, "not every federal foray __________ into criminal law is invalid." United States v. Bishop, 66 F.3d _____________ ______ 569, 584 (3d Cir. 1995) (rejecting L pez-based challenge to the _____ constitutionality of the federal carjacking statute, 18 U.S.C. 2119). Where, as here, the criminal statute satisfies the constitutional limits of the Commerce Clause, it withstands the challenge that it interferes with the states' ability to define and enforce the criminal law. See Russell, 471 U.S. at 860-62. ___ _______ Finally, we note that we join our fellow circuits in arriving at the conclusion that 18 U.S.C. 844(i) passes constitutional muster under L pez. See, e.g., Flaherty, 76 F.3d at 974; United _____ ___ ____ ________ ______ States v. Denalli, 73 F.3d 328, 329 (11th Cir. 1996); Sherlin, 67 ______ _______ _______ F.3d at 1213-14; Pappadopoulos, 64 F.3d at 526. _____________ Because we find no basis to question the presumed validity of 18 U.S.C. 844(i), we conclude that the district court properly had subject-matter jurisdiction conferred by -14- virtue of the fact that Appellant was charged with an "offense against the United States." 18 U.S.C. 3231. See United States ___ _____________ v. Ryan, 41 F.3d 361, 363-64 (8th Cir. 1994) (noting that "if ____ [the jurisdictional] element is not satisfied, then [defendant] is not guilty; but the court is not by the failure of proof on that element deprived of judicial jurisdiction."). 2. Sufficiency of the Evidence 2. Sufficiency of the Evidence With respect to Appellant's claim that there was insufficient evidence to sustain his convictions, Appellant "faces an uphill climb," United States v. Valle, 72 F.3d 210, 216 _____________ _____ (1st Cir. 1995). "If the evidence presented, taken in the light most agreeable to the government, is adequate to permit a rational jury to find each essential element of the offense of conviction beyond a reasonable doubt, then [Appellant's] claim fails." Id. (citations omitted). As the district court's ___ disposition of a motion for judgment of acquittal is subject to de novo review, we, "like the trial court, must 'scrutinize the _______ evidence in the light most compatible with the verdict, resolve all credibility disputes in the verdict's favor, and then reach a judgment whether a rational jury could find guilt beyond a reasonable doubt.'" Id. (quoting United States v. Taylor, 54 F.3d ___ _____________ ______ 967, 974 (1st Cir. 1995)). After thoroughly reviewing the record6 and applying these straightforward rules, we are convinced that a rational ____________________ 6 We included in our review of the record the challenged tape recordings because, as we explain below, we find that they were properly admitted into evidence. -15- jury could have found beyond a reasonable doubt that the government had successfully proved each of the elements -- including, as we discuss more thoroughly below, the requisite nexus to interstate commerce -- of both Appellant's attempt and conspiracy convictions. Credibility determinations are uniquely within the jury's province; and, we defer to their determinations and the verdict if the evidence can support varying inferences. See, e.g., United States v. Cruz-Kuilan, 75 F.3d 59, 62 (1st Cir. ___ ____ _____________ ___________ 1996); United States v. Gonz lez-Torres, 980 F.2d 788, 790 (1st _____________ _______________ Cir. 1992). Here, the record clearly supports the verdict. That the jury chose to believe the testimony presented by the government, particularly that of Schaller, and disbelieve that presented by the defense was well within its province. As part of our sufficiency of the evidence review, we must determine whether the requisite jurisdictional element is met. Because it constitutes a jurisdictional predicate of the substantive offense, this "jurisdictional element," like other elements of the offense, must be proved to the jury beyond a reasonable doubt. See Pappadopoulos, 64 F.3d at 524; Medeiros, ___ _____________ ________ 897 F.2d at 15-17 (stating that the government need only show a de minimis connection to interstate commerce in order to satisfy __________ this element). Thus, in order for Appellant to be found guilty under the federal arson statute, the government had to prove, among other things, that the property was either "used in" or "used in an activity affecting" interstate commerce. 18 U.S.C. 844(i). This involves identifying for what activity or purpose -16- the building is "used." Cf. Medeiros, 897 F.2d at 16 (focusing __ ________ on the character of a fictitious building in determining whether it was sufficiently connected to interstate commerce). On appeal, Appellant argues that there is insufficient evidence to prove that the Galleria II was a building used in or affecting interstate commerce, because under L pez the evidence _____ does not prove that the building "substantially affects" interstate commerce. Because Appellant did not raise this L pez _____ argument below, we review only for plain error the district court's ruling on the sufficiency of the evidence regarding the jurisdictional element. United States v. Olano, 507 U.S. 725, _____________ _____ 732 (1993) ("There must be an 'error' that is 'plain' and that 'affect[s] substantial rights.'"); United States v. Brand, 80 ______________ _____ F.3d 560, 567-68 (1st Cir. 1996) (discussing Olano). _____ We find no plain error. At the time of the district court's decision, L pez had not yet been decided and there was no _____ reason for the district court to question the viability of Russell or Medeiros. Under Medeiros, the government need only _______ ________ ________ show, and the jury need only find, a de minimis connection to __________ interstate commerce in order to sustain a conviction under 18 U.S.C. 844(i). Medeiros, 897 F.2d at 16-17. Here, the ________ government presented uncontested evidence that the object of the attempted arsons was a "building" that was being "used" as a commercial establishment, the Galleria II restaurant. The jury was presented with evidence that Appellant and his partners rented the building; that the building was supplied with natural -17- gas which traveled in interstate commerce; and that the restaurant received food supplies for its operation which traveled in interstate commerce. Indeed, Appellant conceded at oral argument that the building was used as a commercial establishment which received food supplies and natural gas for its operation that travelled in interstate commerce. The district court correctly instructed the jury that the government had to prove beyond a reasonable doubt that the Galleria II was property "used in or [sic] affected interstate or foreign commerce."7 Viewing the evidence in the light most favorable to the jury verdict, this evidence more than satisfies Medeiros' de ________ __ minimis requirement, and we therefore reject Appellant's _______ insufficiency of the evidence argument.8 See, e.g., Ryan, 41 ___ ____ ____ ____________________ 7 The court further instructed the jury: "Interstate commerce means commerce or business between any place in one state and another place outside that state. It also means commerce between places within the same state, but passing through any place outside that state." Finally, the court stated: "Now, business- related property, as opposed to residential property, is considered used in or affecting interstate or foreign commerce even if it has only a de minimis affect [sic] on interstate or __________ foreign commerce. For example, business-related property is considered used in or affecting interstate or foreign commerce if food or drink which has moved in interstate or foreign commerce is sold there, or if oil or gas which has moved in interstate or foreign commerce is used in the building." Appellant did not object to this instruction below or specifically challenge it on appeal. 8 We need not address Appellant's contention that our holding in Medeiros that the government need only show a de minimis ________ ___________ connection to interstate commerce is invalidated by L pez. We _____ merely note that while the L pez decision did not address the _____ amount of evidence required to prove an explicit jurisdictional element of an offense, see Flaherty, 76 F.3d at 974, this does ___ ________ not necessarily mean that it is not controlling when determining how significant the connection to interstate commerce must be in order to satisfy the jurisdictional element, see Denalli, 73 F.3d ___ _______ -18- F.3d at 364 (the de minimis standard "is easily met, even when __________ the property is temporarily closed or vacant"); U.S. v. Menzer, ____ ______ 29 F.3d 1223, 1229 (7th Cir.) (finding interstate commerce connection where building used partly as commercial business received natural gas and items purchased for resale that moved in interstate commerce), cert. denied, 115 S. Ct. 515 (1994); _____________ Medeiros, 897 F.2d at 16 (holding that rental property is per se ________ ______ property used in an activity affecting interstate commerce). We only add this: Even assuming L pez requires more _____ than a de minimis showing, we nonetheless find that the jury was ___________ presented with sufficient evidence to support its finding that the Galleria II was a building either "used in" or "used in an activity affecting" interstate commerce. Above, we found no reason to think that L pez in any way undercut Russell's _____ _______ conclusion that Congress has the authority to regulate arson of business property.9 Similarly, we find no basis to conclude that L pez in any way undercuts Russell's holding that "rental _____ _______ property is unquestionably" an "activity" that affects interstate commerce within the meaning of 18 U.S.C. 844(i). Russell, 471 _______ U.S. at 862 ("We need not rely on the connection between the ____________________ at 330-31 (finding arson of private residence did not substantially affect interstate commerce); Pappadopoulos, 64 F.3d _____________ at 527 (same). 9 See generally, Thomas J. Egan, Note, The Jurisdictional ___ _________ Element of 18 U.S.C. 844(i), A Federal Criminal Commerce Clause Statute, 48 Wash. U.J. Urb. & Contemp. L. 183, 208 (1995) (noting that "the controversy of 844(i) jurisdiction boils down to one issue -- in addition to business property, what types of private ________________________________ property trigger federal jurisdiction in arson cases?") (emphasis added). -19- market for residential units and the 'interstate movement of people,' to recognize that the local rental of an apartment unit is merely an element of a much broader commercial market in rental properties." (quoting McLain v. Real Estate Board of New ______ ________________________ Orleans, 444 U.S. 232, 245 (1980))); cf. Sherlin, 67 F.3d at 1213 _______ __ _______ (finding that building used in educational business of college was building used in an activity affecting interstate commerce). We, thus, reaffirm our holding in Medeiros that rental property ________ is per se sufficiently connected to interstate commerce to confer ______ federal jurisdiction under Section 844(i) and to satisfy the jurisdictional element. See Medeiros, 897 F.2d at 16. Because ___ ________ uncontested evidence was presented that, at the time of the attempted fires, Appellant and his partner rented the building in which the Galleria II was operated, the jury was presented with sufficient evidence to find that the building was "used in an activity affecting" interstate commerce within the meaning of 18 U.S.C. 844(i)'s second category. Even assuming further that L pez undermines Russell and _____ _______ Medeiros' holding regarding rental property, we would nonetheless ________ affirm the jury's finding. Because uncontested evidence was presented below that the building was used as a commercial establishment which received food supplies and natural gas for its operation that travelled in interstate commerce, the Galleria II also falls within 18 U.S.C. 844(i)'s "real or personal property used in interstate . . . commerce." Because the Galleria II was property used in interstate commerce, we need not _______ -20- address whether its activities "substantially affect[ed]" interstate commerce. Cf. Robertson, ___ U.S. at ___, 115 S. Ct. ___ _________ at 1733. In sum, because we are convinced that a rational jury could have found beyond a reasonable doubt that the government had successfully proved each of the elements, we affirm the district court's denial of Appellant's motions for acquittal. II. Appellant's Motion for Mistrial II. Appellant's Motion for Mistrial Appellant also appeals the denial of his motion for a mistrial on the grounds that improper testimony was prejudicial. We review the district court's decision for abuse of discretion. United States v. Rivera-G mez, 67 F.3d 993, 998 (1st Cir. 1995) _____________ ____________ ("The trial judge is best situated to make a battlefield assessment of the impact that a particular piece of improper information may have on a jury."); United States v. Sep lveda, 15 _____________ _________ F.3d 1161, 1184 (1st Cir. 1993) ("Granting or denying a motion for mistrial is a matter committed to the trial court's discretion."), cert. denied, ___ U.S. ___, 114 S. Ct. 2714 _____________ (1994). Appellant argues that the district court abused its discretion when it denied his motion for a mistrial which he made after Schaller testified that Appellant owned "a gay night club." The trial transcript shows that Schaller testified on direct as follows: Q: Now, in the beginning of the restaurant when it first opened, how often did you speak with the defendant about the Galleria II Restaurant? -21- A: On a daily basis. Q: When you say "daily basis," was that on the phone or in person? A: Usually in person. Q: Where was that? A: At the club that he owns in Providence, Gerardo's. Q: What type of club is that? A: A gay night club. (Transcript, Vol. 4 at 98-99). At this point, Appellant objected to the comment and moved for a mistrial on the grounds that the "comment was completely gratuitous . . . [a]nd it was designed specifically to, solely to[,] inflame the passions and prejudice of this jury." (Transcript, Vol. 4 at 99). Although the court seemed to agree with the government that the information was offered as "strictly background information," the court was nonetheless concerned about the possibility that some jurors "may have a view that someone who runs a gay bar may not be an upstanding citizen." (Transcript, Vol. 4 at 99-100). The court decided to speak with the jurors individually to ascertain (i) whether the juror was affected by the testimony in any way; (ii) whether the juror would remain impartial; and (iii) whether the juror would be able to render a verdict based on the evidence and the law as instructed by the court, without regard to the fact that Appellant operated a gay night club. After every juror responded that he or she would not be affected by the testimony in rendering his or her verdict, -22- (Transcript, Vol. 4 at 101-12), the court concluded, "All right. I'm satisfied." (Transcript, Vol. 4 at 113). At this point, and without further comment by counsel, testimony resumed. At the end of trial, Appellant did not request any additional questions be asked of the jurors or that any additional instructions be given. Based on the record, and under the guiding principle that a district court may declare a mistrial only as a "last resort," Sep lveda, 15 F.3d at 1184, we find that the district _________ court's decision "was well within the broad range of its discretion." Rivera-G mez, 67 F.3d at 999. The district court ____________ properly weighed the claim of impropriety and determined that it was unfounded based on his voir dire of the jurors. United ______ States v. Hahn, 17 F.3d 502, 508 (1st Cir. 1994) ("A mistrial ______ ____ need not be allowed absent a clear showing of prejudice."). Moreover, the district court acted swiftly by polling the jurors immediately after the improper testimony.10 Sep lveda, 15 F.3d _________ at 1185 ("Swiftness in judicial response is an important element in alleviating prejudice once the jury has been exposed to improper testimony."). The government argues that this polling effectively provided a curative instruction that the jurors were not to consider evidence that Appellant operated a gay night club ____________________ 10 In deciding when to "instruct the jurors," the court noted that "[t]he question is should we go on now, or should I [speak to the jurors] at this point?" Appellant responded that "I think I should know the answer. It makes sense to us, doesn't it?" The court agreed and spoke individually with each of the jurors at that time. (Transcript, 4-101). -23- in determining guilt or innocence. Given the questions asked and the responses received, we agree that the district court "efficaciously dispelled" any prejudicial effect of Schaller's statement by its immediate and thorough response. See United ___ ______ States v. Bello-P rez, 977 F.2d 664, 672 (1st Cir. 1992) ______ ___________ (affirming denial of motion for mistrial where "[a]ny prejudicial effect of the remark was efficaciously dispelled"). Finally, given the overwhelming evidence of guilt presented during the trial, the challenged testimony was innocuous. Bello-P rez, 977 ___________ F.2d at 672 (denying mistrial where evidence of guilt was overwhelming). III. Appellant's Motion for a New Trial and Motion in Limine III. Appellant's Motion for a New Trial and Motion in Limine _________ Third, Appellant appeals the denial of his motion for a new trial, arguing that the district court abused its discretion in denying his motion in limine11 to exclude from evidence four _________ tapes of recorded conversations between himself and Schaller in February, March and May 1994. As the motion for a new trial is not properly before us on appeal,12 we only address Appellant's ____________________ 11 When the tapes were admitted into evidence, Appellant reiterated his objections to the admissibility of the tapes, which he first had raised in his motion in limine. See __________ ___ Transcript, Vol. 5 at 48. Thus, we find the present claim properly preserved for appeal. 12 On February 24, 1995, -- fourteen days after |