United States of America v. DAVID JAH, Sr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID JAH, Sr.,
Defendant-Appellant.
No. 21-10213
D.C. No. 3:19-cr-00026-WHA-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted November 14, 2022**
San Francisco, California
Before: S.R. THOMAS and BENNETT, Circuit Judges, and MOSKOWITZ,***
District Judge.
David Jah, Sr., appeals his conviction for conspiracy to commit arson, in
violation of 18 U.S.C. §§ 844(i) and (n). Jah challenges the sufficiency of the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
FILED
NOV 30 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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evidence on the interstate commerce element of arson and the district court’s answer
to the jury’s question on that element. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm. Because the parties are familiar with the factual and procedural
history of the case, we need not recount it here.
“We review de novo the sufficiency of the evidence.” United States v.
Backman, 817 F.3d 662, 665 (9th Cir. 2016). We must reject a sufficiency challenge
if, when viewing the trial evidence “in the light most favorable to the prosecution,”
a trier of fact could rationally vote to convict based on the evidence. United States
v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc) (citation omitted);
accord United States v. Powell, 469 U.S. 57, 67 (1984) (“Sufficiency-of-the-
evidence review involves assessment by the courts of whether the evidence adduced
at trial could support any rational determination of guilt beyond a reasonable
doubt.”). Jah’s sufficiency-of-the-evidence challenge lacks merit.
The trial evidence established that Jah hired two people to firebomb a home
in which a lawyer had a room in which he conducted his law practice. The interstate
commerce element can be satisfied with evidence that a law practice is maintained
in a home. See Jones v. United States, 529 U.S. 848, 859 (2000) (holding that
Section 844(i) applies to “property currently used in commerce or in an activity
affecting commerce”); Russell v. United States, 471 U.S. 858, 862 (1985) (holding
that rental apartment satisfied interstate commerce element); Harrison v. Ollison,

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519 F.3d 952, 961 (9th Cir. 2008) (explaining that stipulation that van was used in
commercial business “would be sufficient to bring the property within the scope of
§ 844(i) under Jones”); United States v. Gomez, 87 F.3d 1093, 1096 (9th Cir. 1996)
(explaining that interstate commerce element covers properties “commercial or
economic in nature”); see also United States v. Doggart, 947 F.3d 879, 885 (6th Cir.
2020) (indicating that “a private residence that is also used as the primary office of
a lawyer” would satisfy interstate commerce element); Martin v. United States, 333
F.3d 819, 821 (7th Cir. 2003) (“It remains true after Jones that buildings actively
used for a commercial purpose, including restaurants, home offices, church daycare
centers, and temporarily vacant rental properties, all possess the requisite nexus with
interstate commerce under § 844(i).” (citations omitted and emphasis added)).
“We review de novo whether the district court’s response to a jury question
correctly states the law.” United States v. Castillo-Mendez, 868 F.3d 830, 835 (9th
Cir. 2017). Jah’s challenge to the district court’s response to the jury’s question also
fails. While it was deliberating, the jury sent a note asking: “In order to prove the
[interstate commerce] element, does the building need to be used in a commercial
use and interstate commerce or does the building only need to be used for a
commercial purpose.” The district court circled the second part of the question —
that is, the part asking “does the building only need to be used for a commercial
purpose” — and wrote: “This would be sufficient to prove the [interstate commerce]

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element.”
The district court’s answer is consistent with Jones. 529 U.S. at 850–51
(ruling that “residence not used for any commercial purpose” did not satisfy
interstate commerce element (emphasis added)); United States v. Cortes, 299 F.3d
1030, 1034 (9th Cir. 2002) (explaining that Jones “interpreted the [interstate
commerce] element to encompass only property actively employed for commercial
purposes” (emphasis added)); see also United States v. Aljabari, 626 F.3d 940, 948
(7th Cir. 2010) (explaining that “[t]he Supreme Court has construed the federal arson
statute to protect buildings actively used for a commercial purpose” (emphasis
added)). Moreover, this Court has already rejected the very challenge Jah is now
raising. See Gomez, 87 F.3d at 1097 (finding “no error with” jury instruction
providing that “[a] building is used in interstate commerce, or any activity affecting
interstate commerce, if the building itself is used for a business or commercial
purpose” (emphasis added)).
Jah’s additional filings (Docket Nos. 63, 64, 68, 69, & 77) were submitted by
him personally when he is represented by counsel. The Court strikes those filings
as not submitted by counsel. See 9th Cir. R. 25-2; Fed. R. App. P. 32; see also
United States v. Cross, 959 F.3d 847, 853 (7th Cir. 2020) (“A defendant does not
have a right to represent himself when he is also represented by counsel.”).
AFFIRMED.

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