Petition for Writ of Certiorari — David Jah, Sr., Petitioner v. United States

APPENDIX A

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Case: 21-10213, 11/30/2022, ID: 12598668, DktEntry: 79-1, Page 1 of 4

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No.

FILED

NOV 30 2022

MOLLY C. DWYER. CLERK

U.s. COURT OF APPEALS

21-10213

D.C. No. 3:19-cr-00026-WHA-1

MEMORANDUM*

DAVID JAH, Sr.,

Defendant-Appellant.

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.

APPENDIX A

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Case: 21-10213,11/30/2022, ID:: 12598668, DktEntry: 79-1, Page 2 of 4

mmerce element of arson and the district court’s answer

evidence on the interstate co

estion on that element. Wehavejurisdictionunder28U.S.C. § 1291,

to the jury’ squ

familiar with the factual and procedural

affirm.

Because

the

parties

are

and we

history of the case, we need not recount it here.

the sufficiency of the evidence.” United States v.

“We review de novo

Badmm.ni F.3d 662,665 (9th Cir. 2016). Wemust 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. Needs, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc) (elation omitted);

(1984) (“Sufficiency-of-theaccord United States v. Powell, 469 U.S. 57, 67

assessment by the courts of whether the evidence adduced

evidence review involves

rational determination of guilt beyond reasonable

at trial could support any

doubt "). Jah’s sufficiency-of-the-evidence challenge lacks merit.

The trial evidence es

tablished that Jah hired two people to firebomb a home

in which a lawyer had a room in which he conducted his law practice

commerce

. The interstate

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

affecting commerce”); Russell

or in an activity

v. United States, 471 U.S. 858,862 (1985) (holding

that rental apartment satisfied interstate commerce element) • Harrison v. Ollison,

appendix a

2

(3 of 8)

Case: 21-10213, 11/30/2022, ID: 12598668, DktEntry: 79-1, Page 3 of 4

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] demerit, 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]

APPENDIX A

3

cart

(4 of 8)

,..

Case: 21-10213,11/30/2022, ID: 12598668, DktEntry: 79-1, Page 4 of 4

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.

APPENDIX A

4

AETODIXB

FILED

FEB 9 2023

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No.

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

21-10213

D.C. No.

3:19-cr-00026-WHA-1

Northern District of California,

San Francisco

DAVID JAH, Sr., AKA David Jaa,

Defendant-Appellant.

ORDER

Before: S.R. THOMAS and BENNETT, Circuit Judges, and MOSKOWITZ,*

District Judge.

Appellant’s motion to extend the time to file any petition for rehearing is

construed as a request to recall the mandate. The request to recall the mandate is

granted.

Appellant’s motions to stay proceedings are denied.

Appellant’s motion requesting a PACER exemption is granted.

Appellant’s motion for Criminal Justice Act funding is denied as moot.

The panel has voted to deny the petition for rehearing.

The Honorable Barry Ted Moskowitz, United States District Judge for

the Southern District of California, sitting by designation.

Appendix B

The full court has been advised of the petition for rehearing en banc, and no

judge of the court has requested a vote on the petition for rehearing en banc. Fed.

R. App. P. 35(b).

The petition for rehearing and the petition for rehearing en banc are denied.

Appendix B

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Case: 21-10213, 04/29/2022, ID: 12435294, DktEntry: 34, Page 13 of,32

claimed appellant spoke about the attack in the Richmond District and

appellant explained they attacked the wrong address. [4 ER 499]

At the casino meeting, according to Williams, appellant told Williams

to first target the Lafayette house and then the Danville address. [4 ER

499] Appellant also showed Williams a video of a fire in San Jose as

an example of a complete job. [4 ER 500-501]

A few weeks after the casino meeting, Williams and AlexisClark travelled to Lafayette and Danville [4 ER 504]. Alexis-Clark

testified that Williams threw the Molotov cocktail at the Danville

THIS WAS KNOWN

TO BE FALSE

(SUBJECT PROPERTY)

house but that it did not break through the window. [3 ER 290-291]

Instead, the bottle hit the bedroom upstairs and the bottle broke

without entering the house. [3 ER 291] Alexis-Clark threw the

THIS WAS KNOWN

TO BE TRUE

Molotov cocktail at the Lafayette house [3 ER 291] Alexis-Clark then

contacted appellant by text about getting paid, but he never received

payment. [3 ER 293-294]

Alexis-Clark testified pursuant to a cooperation agreement with

the government and in hopes of receiving a reduced prison term. [3

ER 295] Alexis-Clark also initially denied involvement in the arson

attempts. [3 ER 296] Williams also testified pursuant to cooperation

9

Appendix C

1

; 12483126, DktEntry: 49, Page 25 of 55

Case: 21-10213, 06/29/2022, ID:

fack into the car and sped off. Id. Later that morning, the Toweys noticed that

one of their bedroom windows was cracked

in their front yard a broken bottle and a rag

. 5-ER-672-80. They also discovered

with bum marks on it. Id.

. Meanwhile, immediately after attacking

Alexis-Clark drove to

•'

the Danville house, Williams and

H Carlyle Terrace in Lafayette’ 3'ER‘291,4‘ER'508-

living there with his wife,

William Whiteman, jah’s sister’s former attorney, was

. This time, Alexis-Clark lit the

and pregnant daughter-in-law. 6-ER-798

two sons,

ktadand tossed it through a window. 3-ER-291-92. He saw the

Molotov coc

ktail cut through the window before he and Williams sped off. 3-ER-292.

coc

immediately awakened by the sound of the bottle crashing

Whiteman was

6-ER-800-06. Bolting up in bed, he smelled a

through his bedroom window

. Glass from the window littered the bed and floor. Id.

Id

strong odor of gasoline.

.Whiteman looked under the bed. Id. He discovered a

Trying to avoid the glass

Id. The Molotov

wine bottle stuffed with a rag, with gasoline pouring out.

cocktail had failed to ignite. 6-ER-807.

10.

Law enforcement arrested Jah, Williams, and Alexis-Clark

Law enforcement arrested Jah, Williams, and Alexis-Clark shortly after the

attacks in Danville and Lafayette.

4-ER-423. During the ensuing investigation,

ch warrant for Jah’s phone and

FBI Special Agent Keigan Park executed a sear

18

Appendix C