Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
United States of America v. Jonathan Matthew Torres
Case Number: 20-40611
Judge: James E. Graves, Jr.
Court: United States Court of Appeals
for the Fifth Circuit
Plaintiff's Attorney: Not Listed
New Orleans, LA- Criminal defense lawyer represented defendant with possession of an unregistered destructive device, mailing a threatening communication, and using an explosive to cause property damage chargeS.
In April 2018, officers for the Police Department of Beaumont, Texas,
found a bomb that had been mailed to a local Starbucks. The bomb, made
with Tannerite, a Tomcat-brand mousetrap, zip ties, string, screws, and
nails, never detonated because it lacked a firing pin. A note with peel-andstick letters accompanied the bomb and was signed “JH.”
The next day, “J Hancock” sent a postcard to police asking if they
“wanted another Austin[?],” which was a reference to bombs detonated
around Austin, Texas, a month earlier. About a week later, a bomb went off
at St. Stephen’s Episcopal Church in Beaumont.
The blast damaged the church’s administrative building. At the scene,
law enforcement found pieces of a Tomcat-brand mousetrap, fragments of a
postal service box, string, nails, screws, and Tannerite. The next day, police
received another card signed “JH.” This time the card read “Would you like
to play a game?” and referenced the comic book series V for Vendetta. Police
received two other similar notes signed “JH.”
Officers executed a search warrant on Jonathan Torres’s residence
and discovered a comic book postcard set missing the exact postcards that
the police had received as well as a Tomcat-brand mousetrap, adjustable zip
ties, postal service boxes, nails, screws, and unmixed Tannerite. Torres had
also enshrined a framed photo of the Boston Bomber above his bed. Torres
was arrested and charged with possession of an unregistered destructive
device (26 U.S.C. § 5861(d)), mailing a threatening communication (18
U.S.C. § 876(c)), and using an explosive to cause property damage (18 U.S.C.
Torres moved pre-trial to dismiss the § 844(i) count on CommerceClause grounds, arguing that the church did not conduct business activities
affecting interstate commerce. The district court held a hearing where the
government produced evidence that led the court to deny the motion. The
church’s administrative building was the center of its business operations.
Case: 20-40611 Document: 00515972291 Page: 2 Date Filed: 08/10/2021
For example, the church ran its afterschool, nursery, and summer childcare
programs, for which it charged tuition, out of the building and conducted all
of the administrative work that allows it to rent out its facilities to outside
The case proceeded to a bench trial where the parties stipulated to the
inclusion of evidence obtained at the evidentiary hearings. The district court
found Torres guilty of violating 18 U.S.C. § 844(i). Torres appealed.
As an initial matter, the government assumes that Torres is
challenging the sufficiency of his conviction on the statute’s use-incommerce element, though he describes his argument as a challenge to the
jurisdiction of the district court to decide the case. The government’s
framing is correct. As courts have explained, “the interstate commerce
element of § 844(i) implicates the power of Congress to regulate the conduct
at issue, not the jurisdiction of the court to hear a particular case.” United
States v. Carr, 271 F.3d 172, 178 (4th Cir. 2001). A claim of insufficient
connection to interstate commerce is a challenge to one of the elements of
the government’s case and is considered a claim about the sufficiency of the
evidence. United States v. Riddle, 249 F.3d 529, 536 (6th Cir. 2001); United
States v. Beck, 250 F.3d 1163, 1165 (8th Cir. 2001); United States v. Martin,
147 F.3d 529, 531-32 (7th Cir. 1998).
We review the interpretation of a criminal statute and a challenge to
the sufficiency of the evidence de novo. United States v. Brown, 727 F.3d 329,
335 (5th Cir. 2013). Although sufficiency review is labeled de novo, this is
something of a misnomer because the court’s review is “‘highly deferential
to the verdict.’” United States v. Ollison, 555 F.3d 152, 160 (5th Cir. 2009)
(quoting United States v. Harris, 293 F.3d 863, 869 (5th Cir. 2002)). We must
therefore uphold a conviction if “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
Case: 20-40611 Document: 00515972291 Page: 3 Date Filed: 08/10/2021
essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
Congress has the power to regulate “activities having a substantial
relation to interstate commerce . . . .” United States v. Lopez, 514 U.S. 549,
558–59 (1995). Based on that power, it passed 18 U.S.C. § 844(i), which
applies to anyone who “maliciously damages or destroys, or attempts to
damage or destroy, by means of fire or an explosive, any building . . . used in
interstate or foreign commerce or in any activity affecting interstate or
Torres argues that the administrative building he bombed was used
only in spiritual and charitable activities and not used in interstate commerce
or in any activity substantially affecting interstate commerce. Torres is
correct in that a church does not generally function in a manner that places it
in any significant relationship with interstate commerce. United States v.
Lamont, 330 F.3d 1249, 1257–58 (9th Cir. 2003); United States v. Rea,
300 F.3d 952, 960–62 (8th Cir. 2002).
For example, in United States v. Johnson, this court concluded that the
church’s membership in an organization that sent and spent funds out of
state and its purchasing of insurance from an out-of-state provider were
insufficient to show that its building was used in a way that affected interstate
commerce. 194 F.3d 657, 662 (5th Cir. 1999), cert. granted, judgment
vacated, 530 U.S. 1201 (2000); United States v. Johnson, 246 F.3d 749, 752
(5th Cir. 2001) (reaching same result as 194 F.3d 657).
Other circuits have found similar conduct insufficient. For example,
the Eighth Circuit has found that a church’s annex did not affect interstate
commerce because no one who met in it traveled from out of state, it was not
part of any market for tutoring or childcare, no financial transactions
occurred in it, and donations were processed elsewhere. Rea, 300 F.3d at 962.
And the Ninth Circuit has found that a church was not engaged in interstate
Case: 20-40611 Document: 00515972291 Page: 4 Date Filed: 08/10/2021
commerce because the only evidence introduced was the church’s
membership in a national religiousinstitution and that it purchased insurance
policies from an out-of-state provider, purchased out-of-state goods for its
own consumption, had out-of-state members, and distributed a publication
interstate. Lamont, 330 F.3d at 1255-59. So fleeting, negligible, and passive
connections to interstate commerce such as having out-of-state members,
being a member of a national organization, or purchasing out-of-state goods
will not suffice.
But as this court’s analysis in Johnson implicitly acknowledges, and as
other circuits have recognized, a church building can be used for commercial
purposes and thus fall within § 844(i)’s ambit. See Johnson, 246 F.3d at 752.
Doing so, however, requires the presence of more substantial and active
commercial involvement than the activities mentioned above. For example,
the Supreme Court found in Russell v. United States, 471 U.S. 858 (1985), that
the rental of real estate affects commerce. Id. at 862. So a church’s renting
out its facilities could suffice.
Additionally, the Fourth and Tenth Circuits have concluded that
“housing a daycare center whose function is to provide child care services in
exchange for payment singlehandedly transforms a place of worship into a
building that is actively employed for commercial purposes.” United States v.
Gillespie, 452 F.3d 1183, 1188 (10th Cir. 2006) (citing United States v. Terry,
257 F.3d 366, 371 (4th Cir.2001)). See also United States v. Doggart,
947 F.3d 879, 885 (6th Cir. 2020) (reaching similar conclusion). Further, in
an unpublished decision, this court held that a funeral home’s purchasing of
caskets that were manufactured out of state satisfied the interstate commerce
element of § 844(i). United States v. Caldwell, 120 F.3d 266, 1997 WL
420240, *4 (5th Cir. 1997).
We have similar commercial activities present here. The church rents
its facilities to vendors and to individuals for receptions, parties, townhalls,
cotillion, dances, and other nonreligious gatherings. The fees from these
rentals more than cover the cost of maintenance and upkeep, and the
Case: 20-40611 Document: 00515972291 Page: 5 Date Filed: 08/10/2021
administrative building houses all the business activities related to the
church’s rental operation.
The church also runs child care programs for which it charges tuition.
The business and financial aspects of these programs, which include
receiving and processing tuition payments, hiring and paying staff, and
purchasing supplies, all take place in the administrative building. Moreover,
the church receives cremated remains from deceased in-state and out-ofstate parishioners and purchases urns from an out-of-state supplier. The
administrative building serves as the business office for these funeral services
and processes all the related paperwork and payments.
Because the church uses the building to rent its facilities, operate its
child care programs, and process the paperwork related to funeral services,
“[t]his is not a case where the government relies only on passive activities,
such as the purchase of utility services or insurance from an out-of-state
provider, to demonstrate the building’s use in and effect on interstate
commerce. The church’s interstate connections [are] direct, regular and
substantial.” United States v. Rayborn, 312 F.3d 229, 234 (6th Cir. 2002).
Outcome: Consequently, we AFFIRM.