United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 11-1500
     ___________________________

          United States of America

    lllllllllllllllllllll Plaintiff - Appellee

                       v.

               Randeep Mann

   lllllllllllllllllllll Defendant - Appellant
      ___________________________

             No. 11-2187
     ___________________________

          United States of America

    lllllllllllllllllllll Plaintiff - Appellee

                       v.

               Randeep Mann

   lllllllllllllllllllll Defendant - Appellant
                                   ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: February 8, 2012
                              Filed: December 6, 2012
                                   ____________

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.

       Randeep Mann was convicted by a jury of conspiring to use and aiding and
abetting in the use of a weapon of mass destruction in violation of 18 U.S.C. § 2332a;
causing the damage or destruction of a vehicle by means of an explosive resulting in
personal injury in violation of 18 U.S.C. § 844(i); possession of unregistered grenades
in violation of 26 U.S.C. § 5861(d); possession of an unregistered machinegun in
violation of 26 U.S.C. § 5861(d); possession of a machinegun in violation of 18
U.S.C. § 922(o); conspiring to corruptly obstruct an official proceeding in violation
of 18 U.S.C. § 1512(k); and aiding and abetting in the corrupt concealment of
documents with the intent to impair the use of the documents in an official proceeding
in violation of 18 U.S.C. § 1512(c)(1)-(2). Mann appeals his convictions and his
sentences. We affirm in part, reverse in part, and remand for resentencing.

                                   I. Introduction

     On February 4, 2009, Dr. Trent Pierce, Chairman of the Arkansas State
Medical Board (the Board), left his home in West Memphis, Arkansas, planning to



                                         -2-
drive later that day to Little Rock, Arkansas, to attend a Board meeting. Before
getting into his vehicle, Dr. Pierce noticed a spare tire leaning against his vehicle.
When he attempted to move the tire, it exploded, rendering Dr. Pierce severely and
permanently injured. Investigators determined that the explosion was caused by a
bomb composed of the spare tire and an MK3A2 hand grenade.

      In its investigation of the bombing, the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (ATF) asked the Board for a list of doctors who had been disciplined
by the Board in the previous five years. The Board supplied the list of disciplined
doctors to the ATF. The list included Mann¯who had a long history of disciplinary
actions before the Board¯and four other physicians.

       Because Mann’s name was on the list supplied by the Board, ATF agents
interviewed Mann and his wife, Sangeeta, at their residence in Russellville, Arkansas,
on the evening of the bombing. During that interview, Mann mentioned to the agents
that he had a collection of guns and a federal firearms license and offered to show the
agents his collection. The agents observed that one of Mann’s guns was equipped
with an M203 grenade launcher.

      By chance, on March 3, 2009, city workers discovered 98 40mm High
Explosive (HE) M406 grenades and a practice grenade buried in a wooded area
approximately 875 feet from the Manns’ residence. The grenades were enclosed in
a green military ammunition canister and were capable of being launched by an M203
grenade launcher like the one owned by Mann.

      The following day, officers obtained and executed a search warrant on the
Manns’ residence looking for evidence connected to the 98 buried grenades. Officers
seized five green military canisters from Mann’s home that were similar to the
canister that contained the buried grenades. One of the five canisters contained the



                                         -3-
same lot number as the buried canister. Officers also seized 46 practice grenades
similar to the buried practice grenade, a manual for a 40mm grenade launcher, a hand
grenade manual, 18 firearms, and a 40mm grenade launcher. Officers determined that
the 98 buried grenades and 2 of the firearms were not registered to Mann as required
by federal law, and Mann was arrested for ownership of unregistered grenades.1

       On March 5, 2009, Mann appeared in federal court at an initial appearance on
a complaint charging him with unlawful possession of one or more unregistered
firearms. On the evening of March 5, 2009, agents executed a second search warrant
on the Manns’ residence to search for evidence relating to the bombing of Dr. Pierce.
Between Mann’s initial appearance and his detention hearing, Mann was held in
federal custody. Phone conversations between Mann and his wife were recorded, in
which Mann’s wife informed Mann of the search of their home and of a pending
search of Mann’s medical office. Mann instructed his wife to remove certain
documents from his office prior to the search.

       Mann’s detention hearing was held on March 9 and 10, 2009, and Mann was
detained until trial. A grand jury returned an indictment on April 8, 2009, charging
Mann with one count of possession of 98 unregistered grenades. The grand jury
returned a superseding indictment on August 6, 2009, that added counts for
possession of a machinegun, possession of an unregistered machinegun, possession
of an unregistered shotgun, and two counts for obstruction of justice. On January 6,
2010, the grand jury returned a second and final superseding indictment that alleged
several counts against Mann: Count 1, using and conspiring to use a weapon of mass
destruction against a person or property within the United States in violation of 18
U.S.C. § 2332a; Count 2, aiding and abetting in the damaging or destruction of a


      1
       The jury later found that Mann legally possessed one of the two unregistered
firearms.


                                         -4-
vehicle used in an activity affecting interstate commerce by means of an explosive in
violation of 18 U.S.C. § 844(i); Count 3, possession of unregistered grenades in
violation of 26 U.S.C. § 5861(d); Count 4, possession of an unregistered shotgun in
violation of 26 U.S.C. § 5861(d); Count 5, possession of an unregistered machinegun
in violation of 26 U.S.C. § 5861(d); Count 6, possession of a machinegun in violation
of 18 U.S.C. § 922(o); Count 7, conspiring to corruptly obstruct, influence, and
impede an official proceeding in violation of 18 U.S.C. § 1512; and Count 8, aiding
and abetting in the corrupt concealment of certain documents with the intent to impair
the use of the documents in an official proceeding in violation of 18 U.S.C. § 1512.
The indictment also alleged counts of obstruction of justice against Sangeeta Mann.2

      Jury selection began on July 6, 2010, and the Manns’ trial lasted roughly five
weeks, including jury selection and deliberation. The jury convicted Mann on seven
of eight counts, finding him not guilty of Count 4, possession of an unregistered
shotgun, but finding him guilty on all other charges. The district court held a
sentencing hearing on February 28, 2011, and sentenced Mann to life imprisonment
on Count 1 (the weapons of mass destruction charge); 360 months on Count 2 (the
arson charge); 120 months on Counts 2, 5, and 6 (the firearms offenses); and 60
months on Counts 7 and 8 (the obstruction of justice offenses), with all sentences to
run concurrently.

       Mann appeals his convictions and his sentences, alleging errors at the pretrial
stage, at trial, and at sentencing.




      2
       This Court’s opinion affirming Sangeeta Mann’s convictions can be found at
United States v. Mann, 685 F.3d 714 (8th Cir. 2012).


                                         -5-
                                     II. Pre-Trial

                                   A. Speedy Trial

       Mann alleges the district court erred in not granting his motion to dismiss the
original indictment with prejudice because the indictment was not filed within the
time limits required by the Speedy Trial Act, 18 U.S.C. § 3161(b). Mann’s argument
involves a question of statutory interpretation; thus, we review the district court’s
decision de novo. Dunham v. Portfolio Recovery Assocs., LLC, 663 F.3d 997, 1001
(8th Cir. 2011); see also United States v. Orozco-Osbaldo, 615 F.3d 955, 957 (8th
Cir. 2010) (“In the context of Speedy Trial Act rulings, we review a district court’s
legal conclusions de novo . . . .”) (internal quotation marks omitted).

       Mann was arrested on March 4, 2009; his first appearance on the complaint
was March 5, 2009; and the grand jury returned the original indictment on April 8,
2009. Between his arrest on March 4 and the return of the indictment on April 8,
more than 30 days passed, and Mann was detained for the entirety of that time. The
Speedy Trial Act requires that “[a]ny information or indictment charging an
individual with the commission of an offense shall be filed within thirty days from
the date on which such individual was arrested or served with a summons in
connection with such charges.” 18 U.S.C. § 3161(b). However, where an individual
is “in a district in which no grand jury has been in session during such thirty-day
period, the period of time for filing of the indictment shall be extended an additional
thirty days.” 18 U.S.C. § 3161(b) (emphasis added).

      It is undisputed on appeal that no grand jury was in session during the thirty-
day period following Mann’s first appearance on the complaint. However, Mann
argues that in order for the Government to be entitled to the additional thirty days, the




                                          -6-
Government was required to make a motion for an extension of time, which the
Government did not do.

       The district court denied Mann’s motion to dismiss the indictment, finding the
thirty-day period is automatically extended in the absence of a grand jury, regardless
of whether the Government makes a motion to that effect. We agree.

       Whether 18 U.S.C. § 3161(b) requires a Government motion to extend the
thirty-day period is an issue of statutory interpretation. When interpreting a statute,
we first look to its plain language. See Dunham, 663 F.3d at 1001. We “examine the
text of the statute as a whole by considering its context, object, and policy.” Mader
v. United States, 654 F.3d 794, 800 (8th Cir. 2011). “When the words of a statute are
unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’”
United States v. I.L., 614 F.3d 817, 820 (8th Cir. 2010) (quoting Conn. Nat’l Bank
v. Germain, 503 U.S. 249, 254 (1992)).

       The plain language of section 3161(b) is unambiguous: where a grand-jury is
not in session during the thirty-day period, “the period of time for filing of the
indictment shall be extended an additional thirty days.” 18 U.S.C. § 3161(b).
Pursuant to the language of the statute, the extension of time is automatic; no
Government motion is required. See United States v. Davis, 785 F.2d 610, 613 n.3
(8th Cir. 1986) (stating the Government does not bear the burden of demonstrating
an extension of time was warranted and implying the extension is automatic where
no grand jury is in session). We agree with the district court that Mann is entitled to
no relief under the Speedy Trial Act.




                                         -7-
                                 B. Double Jeopardy

       Next, Mann argues the district court erred in denying his motion to strike either
Count 1 or Count 2 and either Count 5 or Count 6 from the second superseding
indictment on grounds that the counts were multiplicious. “A multiplicious
indictment is one charging the same offense in more than one count.” United States
v. Sue, 586 F.2d 70, 71 n.1 (8th Cir. 1978) (per curiam) (quoting United States v.
Hearod, 499 F.2d. 1003, 1005 (5th Cir. 1974) (per curiam)). “‘The principal danger
raised by a multiplicious indictment is the possibility that the defendant will receive
more than one sentence for a single offense.’” Id. at 72 (citation omitted). That is,
a multiplicious indictment violates a defendant’s “right not to be put more than once
in jeopardy.” United States v. Herzog, 644 F.2d 713, 715 (8th Cir. 1981). “A double
jeopardy claim is a legal question that this court reviews de novo.” Students for
Sensible Drug Policy Found. v. Spellings, 523 F.3d 896, 899 (8th Cir. 2008).

       When determining for double jeopardy purposes whether a defendant may be
charged with violating multiple statutes on the basis of a single criminal act, “[t]he
applicable rule is that, where the same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the
other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932).

       Count 1 alleged Mann aided and abetted another in violating 18 U.S.C.
§ 2332a, which required proof that: (1) a weapon of mass destruction was used,
(2) against any property within the United States, and (3) that the offense affected
interstate commerce. See 18 U.S.C. § 2332a(2)(D).3 Count 2 alleged Mann aided and

      3
       It is unclear whether the statute’s requirement that the weapon be used without
lawful authority is an element of the offense or an affirmative defense. See United
States v. Wise, 221 F.3d 140, 148 (5th Cir. 2000). We decline to entertain that


                                          -8-
abetted another in violating 18 U.S.C. § 844(i), which required proof that Mann:
(1) maliciously, (2) destroyed or attempted to destroy, (3) by means of explosive, (4)
any vehicle that was used in interstate commerce. 18 U.S.C. § 844(i). Proving a
violation of Count 2 requires proof of an element not required to be proved in Count
1: specifically, in Count 2, the vehicle itself must be used in interstate commerce,
rather than the lesser requirement that the offense affect interstate commerce found
in Count 1. Similarly, Count 1 requires proof of an element not required to be proved
under Count 2, specifically, that the destroyed property be within the United States.
Pursuant to Blockburger, because each count requires proof of an element the other
does not, the two counts are not multiplicious.

      We find, however, that Counts 5 and 6 cannot survive the Blockburger test.
Count 5 alleged a violation of 26 U.S.C. § 5861(d), which makes it unlawful to:
(1) possess, (2) a machinegun, (3) that is not registered in the National Firearms
Registration and Transfer Record. Count 6 alleged a violation of 18 U.S.C. § 922(o),
which makes it unlawful to (1) possess (2) a machinegun. Section 922(o) does not
apply to machineguns that were possessed lawfully prior to the passage of section
922(o) in 1986. 18 U.S.C. § 922(o)(2)(B).

      A violation of section 5861(d) requires proof of an element not required to be
proved under section 922(o): that the possessed machinegun was unregistered.
However, under Blockburger, both statutes must require proof of an element not
required to be proved by the other.4 Here, section 922(o) does not require proof of

question here because to do so is unnecessary as other elements satisfy the
Blockburger requirement.
      4
        We note the Blockburger test is not controlling “where there is clear indication
of a contrary legislative intent.” United States v. Bass, 794 F.2d 1305, 1308 (8th Cir.
1986). However, there is no clear indication that Congress intended that 18 U.S.C.
§ 922(o) and 26 U.S.C. § 5861(d) be used concurrently to punish the same conduct.


                                          -9-
an element not included in section 5861(d). Therefore, section 922(o) is a lesser
included offense of section 5861(d). One statute punishes the ownership of any
machinegun; the other punishes ownership of an unregistered machinegun.

      The Government attempts to save the two counts by arguing that the additional
element required to be proved by section 922(o) is possession after the year 1986,
when section 922(o) went into effect. Section 922(o)(2)(B) states that the statute’s
prohibition against possessing machineguns does not apply to guns “lawfully
possessed before the date” the subsection of the statute went into effect. 18 U.S.C.
§ 922(o)(2)(B). If the Government were required to prove that a defendant came into
possession of a machinegun after 1986 to win a conviction on a section 922(o)
charge, this would be an additional element of the offense, and there would be no
double jeopardy concerns with charging violations of both 18 U.S.C. § 922(o) and 26
U.S.C. § 5861(d). However, we have previously stated that “[t]he exceptions
contained in [18 U.S.C. § 922(o)(2)] establish affirmative defenses to the defined
offense. They are not elements of the offense . . . .” United States v. Just, 74 F.3d
902, 904 (8th Cir. 1996). Thus, the Government’s argument has been foreclosed.5

       The Government alleges that we may not find that these two counts are
multiplicious because that would violate our precedent in United States v. Elliott, 128
F.3d 671 (8th Cir. 1997) (per curiam). In Elliott, the defendant was charged with
violating both 28 U.S.C. § 922(o) and 26 U.S.C. § 5861(d). Id. at 671-72. Elliott
argued on appeal that his conviction under section 5861(d) worked a due process
violation because the passage of section 922(o) made it illegal to own a machinegun


Thus, Blockburger controls.
      5
       We also note that the district court instructed the jury that possession prior to
1986 was a defense to the charge rather than an element that the Government was
required to prove. See Jury Instructions 23, 24.


                                         -10-
and impossible to register one. Thus, Elliott argued, section 5861(d) punished him
for failing to do what would have been impossible for him to do: register his
machinegun. Id. at 672. Several circuits accepted this argument and held that
section 922(o) implicitly repealed section 5861(d). We rejected the argument of
implicit repeal and found section 5861(d) remained good law because the defendant
could comply with it by “simply refusing to possess the machinegun.” Id. Elliott,
who filed a brief pro se, did not allege a double jeopardy violation, and we did not
discuss double jeopardy in our per curiam opinion. Elliott stands only for the
proposition that 18 U.S.C. § 922(o) did not repeal 26 U.S.C. § 5861(d). It does not
support the proposition that a valid double jeopardy challenge to an indictment that
charges a violation of both statutes for the same conduct is without merit. See Wilson
v. Zoellner, 114 F.3d 713, 721 n.4 (8th Cir. 1997) (noting we are not bound by issues
in prior cases that were “not necessary to decide the issue in the case”).

      Because we hold that 18 U.S.C. § 922(o) is a lesser included offense of 26
U.S.C. § 5861(d), we remand Mann’s convictions for Counts 5 and 6 to the district
court with instructions to vacate one of the convictions. See United States v.
Muhlenbruch, 634 F.3d 987, 1004 (8th Cir. 2011), cert. denied, 132 S. Ct. 228 (2011).



                           C. Notice and Bill of Particulars

       Next, Mann argues the district court erred in failing to grant his pretrial6 motion
to dismiss Count 7 of the indictment, which argued the indictment failed to give
sufficient notice of the nature of the accusations against him. Additionally, Mann




      6
          Mann filed his motion during jury selection.


                                          -11-
argues the bill of particulars amended the indictment.7 We review a district court’s
denial of a motion to dismiss an indictment for abuse of discretion. United States v.
Moore, 184 F.3d 790, 794 (8th Cir. 1999).

       Count 7 of the indictment stated that from “on or about March 4, 2009, until
on or about August 6, 2009 in the Eastern District of Arkansas, the defendants,
RANDEEP MANN and SANGEETA MANN, a/k/a SUE MANN, did conspire with
each other to corruptly obstruct, influence, and impede an official proceeding, in
violation of Title 18, United States Code § 1512 (c)(2).” Mann argues he was led to
believe that this charge related only to the removal of documents from his office.
During jury selection, it became clear that the Government also intended to offer
proof of removal of documents from the Manns’ home and vehicle and evidence of
interference with witness testimony to support the charge. When this became
obvious, Mann made a motion for a bill of particulars and received one. Mann argues
the original indictment was insufficient to give him proper notice of the charges
against him as required by the Sixth Amendment.8


      7
       Mann also appears to argue that he was not given sufficient notice of the
charges alleged against him in Count 8; however, he did not move to dismiss Count
8. “A defendant must raise before trial by motion any objections based on defects in
the indictment.” United States v. Sileven, 985 F.2d 962, 965 (8th Cir. 1993) (per
curiam) (quoting United States v. Richards, 723 F.2d 646, 648 (8th Cir. 1983) (per
curiam)). Because Mann did not make a motion to dismiss Count 8, we will not
address his argument on appeal.
      8
        In addition to arguing that the indictment failed to give Mann notice of the
totality of actions included in the offense, Mann’s reply brief argues the indictment
was insufficient because it failed to give Mann notice of which official proceeding
Mann was alleged to have obstructed. “We generally ‘do not consider arguments
raised for the first time in a reply brief.’ . . . We see no reasons to deviate from [this]
rule[] in this case.” United States v. Martinson, 419 F.3d 749, 753 (8th Cir. 2005)
(quoting United States v. Griggs, 71 F.3d 276, 282 (8th Cir. 1995)).


                                           -12-
      “As a general rule, due process requires that the indictment give a defendant
notice of each element of the charge against him so that he can prepare an adequate
defense.” United States v. Becton, 751 F.2d 250, 256 (8th Cir. 1984).

      An indictment adequately states an offense if “it contains all of the
      essential elements of the offense charged, fairly informs the defendant
      of the charges against which he must defend, and alleges sufficient
      information to allow a defendant to plead a conviction or acquittal as a
      bar to a subsequent prosecution. An indictment will ordinarily be held
      sufficient unless it is so defective that it cannot be said, by any
      reasonable construction, to charge the offense for which the defendant
      was convicted.”

United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008) (quoting United States v.
Hernandez, 299 F.3d 984, 992 (8th Cir. 2002)). Where the plain language of an
indictment fails to alert a defendant of the “precise nature of the government’s
allegations,” a bill of particulars can cure deficiencies in the indictment’s form.
United States v. Dolan, 120 F.3d 856, 866 (8th Cir. 1997).

        Count 7 of the original indictment was not defective. It contained all the
elements of the charged offense and fairly informed Mann of the offense against
which he was expected to defend. Additionally, the charge was sufficient to preclude
a subsequent prosecution for Mann’s removal of documents from his home and
interference with witnesses because it charged him with conspiring to obstruct justice
between March 6, 2009, and August 6, 2009. The removal of documents from
Mann’s home and interference with witnesses occurred within the time period alleged
in the indictment. Further, Mann was given a bill of particulars during jury selection
that provided him with additional notice of the precise allegations against him.
Specifically, the bill of particulars informed Mann that the conspiracy charge
included a conspiracy to “hide documents and other objects, including but not limited
to firearms, unknown documents from a vehicle, unknown objects from the house,


                                        -13-
documents related to Dan Mann, and documents related to Sandip Mann and to
influence witnesses.” Thus, the indictment provided Mann notice of the elements of
the charges against him, and the bill of particulars provided Mann with the precise
nature of the charges.

        Mann argues the bill of particulars constructively amended the indictment and
the district court erred in not dismissing Count 7 or, alternatively, in allowing the
Government to introduce evidence disclosed in the bill of particulars rather than
limiting it to the evidence originally charged in the indictment. “We review a district
court’s ruling regarding a bill of particulars for abuse of discretion.” United States
v. Shepard, 462 F.3d 847, 860 (8th Cir. 2006). “A constructive amendment . . .
occurs when the essential elements of the indicted offense are altered, either actually
or in effect, after the grand jury has issued the indictment.” United States v. Johnston,
353 F.3d 617, 623 (8th Cir. 2002). “A constructive amendment primarily affects the
defendant’s Fifth Amendment right to indictment by a grand jury . . . .” United States
v. Renner, 648 F.3d 680, 685 (8th Cir. 2011) (quoting United States v. Adams, 604
F.3d 596, 599 (8th Cir. 2010)).

       The bill of particulars did not constructively amend the indictment against
Mann. Count 7 of the indictment listed the essential elements of the charge as
conspiracy to corruptly obstruct, influence, and impede an official proceeding, in
violation of 18 U.S.C. § 1512 (c)(2). The essential elements of the charge remained
the same in the bill of particulars. The indictment limited the time period and
location of the conspiracy charge to “from on or about March 4, 2009, until on or
about August 6, 2009, in the Eastern District of Arkansas,” and the time frame and
limitations included in the indictment in Count 7 were not extended by the bill of
particulars. The bill provided Mann with the precise nature of the charge against him
without altering the essential elements of the indictment.




                                          -14-
      We find the district court did not err in refusing to dismiss Count 7 from the
indictment or in its decision relating to the bill of particulars.

                                     D. Joinder

       Mann contends that the indictment improperly joined offenses and defendants
by (1) charging Mann’s firearms offenses, bombing offenses, and obstruction
offenses in the same indictment and (2) by including charges against his wife in the
same indictment which charged Mann. Mann argues this constituted misjoinder
under Federal Rule of Criminal Procedure 8. Alternatively, Mann argues the district
court should have granted his motion to sever under Rule 14. We review allegations
of misjoinder under Rule 8 de novo; however, we review denial of severance for an
abuse of discretion. See United States v. Liveoak, 377 F.3d 859, 864 (8th Cir. 2004).

       Rule 8(a) governs the joining of offenses and permits the joinder of offenses
that are “of the same or similar character or are based on the same act or transaction,
or are connected with or constitute parts of a common scheme or plan.” Fed. R. Crim.
P. 8(a). Rule 8(b) governs the joinder of defendants and states that two or more
defendants can be charged together “if they are alleged to have participated in the
same act or transaction, or in the same series of acts or transactions, constituting an
offense or offenses.” Fed. R. Crim. P. 8(b).

                         i. Propriety of Joinder of Offenses

       Mann was charged in the same indictment with (1) offenses relating to the
bombing of Dr. Pierce; (2) an offense alleging Mann’s possession of unregistered
grenades; (3) offenses alleging Mann possessed an unregistered machinegun and
shotgun; and (4) offenses alleging Mann corruptly conspired to and did obstruct
justice. Where an indictment joins defendants as well as offenses, the propriety of the



                                         -15-
joinder of offenses is governed by Rule 8(b), rather than Rule 8(a). See United States
v. Jones, 880 F.2d 55, 60-61 (8th Cir. 1989). “This is significant because the
language of 8(a) does not allow joinder on the same basis as 8(b); the words ‘same
or similar character’ are omitted from 8(b).” Id. at 61. For offenses to be properly
joined in an indictment that also joins defendants, the offenses must be part of “the
same series of acts or transactions.” See id.; see also Fed. R. Crim. P. 8(b).
“Generally, the ‘same series of acts or transactions’ means acts or transactions that
are pursuant to a common plan or a common scheme.” United States v. Wadena, 152
F.3d 831, 848 (8th Cir. 1998).

       Counts 1 and 2 charged Mann with conspiring to use a weapon of mass
destruction and arson of Dr. Pierce’s vehicle. These were part of the same act: the
bombing of Dr. Pierce. Mann does not contest the joinder of these two offenses.
Counts 7 and 8 charged Mann with attempting to obstruct justice by hiding
documents and firearms and influencing witnesses in an effort to influence an official
proceeding. Mann argues that during the time period when the actions supporting the
convictions for obstruction occurred, Mann had only been charged with firearms
offenses and had no way of interfering with an official proceeding involving the
bombing offenses, which had not yet been charged. The evidence indicated that
Mann attempted to influence the testimony of witnesses who were to testify before
the grand jury that was tasked with deciding whether to indict Mann on the bombing
charges. Obstruction counts are properly joined with substantive counts where the
“obstruction charge is connected to, and interrelated with” the substantive charges.
See United States v. Little Dog, 398 F.3d 1032, 1037 (8th Cir. 2005). The attempt
to influence grand jury testimony and to hide documents was interrelated with the
bombing charges; therefore, the obstruction charges were properly joined.

      Next, we consider whether Counts 3, 5, and 6 (the firearms charges) were
properly joined with the bombing and obstruction counts. We find that joinder of



                                        -16-
Counts 3, 5, and 6 with the bombing and obstruction counts was improper under Rule
8(b). Count 3 alleged that Mann illegally possessed 98 40mm M406 grenades, and
Counts 5 and 6 alleged Mann illegally possessed a machinegun. The bombing of Dr.
Pierce occurred in February 2009 and involved an MK3A2 grenade, not an M406
grenade. An MK3A2 is a hand grenade, and an M406 is a 40mm launching grenade.
The evidence indicated that Mann obtained the 98 40mm M406 grenades sometime
before July 2001 and before Mann’s troubles with the Board began. The Government
did not introduce any evidence indicating that Mann purchased the M406 grenades
as part of a plan to bomb Dr. Pierce, nor was it alleged in the indictment.

       We fail to see how the possession of unregistered grenades that were purchased
at least seven years prior to the bombing and were not the type used in the bombing
could be considered part of a common scheme or plan to bomb Dr. Pierce. Thus, the
joinder of Count 3 with the bombing, arson, and obstruction charges was improper.
Similarly, Mann’s possession of an unregistered machinegun was entirely unrelated
to the bombing and arson. The indictment did not allege, and the Government did not
prove, any connection between Mann’s possession of the machinegun and the
commission of the bombing. Accordingly, the joinder of Counts 3, 5, and 6 with the
bombing and arson charges was improper.

 ii. Was Mann prejudiced by misjoinder in his defense of the firearms offenses?

       Finding that Counts 3,5, and 6 were improperly joined does not end our
inquiry. “[M]isjoinder requires reversal only if it result[ed] in actual prejudice
because it had substantial and injurious effect or influence on determining the jury’s
verdict.” United States v. Sazenski, 833 F.2d 741, 745 (8th Cir. 1987) (internal
quotation marks omitted). “Improper joinder does not, in itself, violate the
Constitution. Rather, misjoinder would rise to the level of constitutional violation
only if it results in prejudice so great as to deny a defendant his Fifth Amendment



                                        -17-
right to a fair trial.” United States v. Lane, 474 U.S. 438, 446 n.8 (1986). The
Supreme Court has “suggested several factors that might lead to a finding of
prejudice: (1) failure to give limiting instructions; (2) evidence of guilt that is not
overwhelming; (3) admission of evidence that would be inadmissible in a trial of only
properly joined defendants and counts; (4) evidence on the improperly joined charges
that is indistinct and not easily segregated; and (5) en masse trial of numerous
defendants.” Sazenski, 833 F.2d at 745-46.

       We first apply these factors in considering whether Mann was prejudiced in his
defense of the firearms offenses because they were joined with the arson and bombing
offenses. First, the jury was instructed to “consider, separately, each crime charged
against each individual defendant.” Jury Instruction 5. Second, there was
overwhelming evidence of guilt as to Mann’s possession of the unregistered
grenades. City workers discovered the 98 40mm grenades approximately 900 feet
from Mann’s home. Lloyd Hahn testified that he had sold Mann around that number
of 40mm grenades. Additionally, Hahn testified that he removed the manufacturing
date from the grenades he sold to Mann, and two agents testified that portions of the
manufacturing date were removed from the buried grenades found near Mann’s home.
The grenades were buried in a green military container, and agents discovered similar
green military containers in Mann’s home, including one with the same lot number
as the buried container. Agents also found two grenade launchers capable of firing
40mm grenades and manuals on how to use grenades and a grenade launcher in
Mann’s home. Finally, Jeff Kimbrough, who installed an alarm system in Mann’s
home, testified he saw something similar to a 40mm grenade in Mann’s home.

      Similarly, there was overwhelming evidence of guilt as to Mann’s illegal
possession of a machinegun. Agents seized a 7.62 by .39 caliber machinegun from
Mann’s home. ATF agent Michael Knapp testified that the gun contained the serial
number BM-0834 and the number 1442 was scratched into the gun. Gary Schiable,



                                         -18-
a program manager who worked for the ATF, testified that a 7.62 by .39 caliber
machinegun with serial number BM-0834 was not registered to Mann, but a 7.62 by
.39 caliber machinegun with serial number 1442 was registered to Mann. The
registered machinegun had paperwork that indicated the gun was made by Lloyd
Hahn. However, Hahn testified that he did not manufacture the seized gun, indicating
the seized firearm was not the registered firearm.

      The jury was instructed to keep the evidence of the crimes separate, this was
not an en masse trial of multiple defendants, and the evidence of guilt was
overwhelming as to Mann’s possession of the unregistered grenades and the
machinegun. Accordingly, we find that under the factors referenced in Sazenski, that
Mann was not prejudiced in his defense of the firearms charges by their joinder with
the bombing charges.9

      9
         We note that Mann also argues that the denial of severance was prejudicial
because he would have testified on his own behalf at separate trials on the firearms
counts, but desired to assert his Fifth Amendment rights as to the bombing and arson
charges. Severance of counts is required on such a basis “only when a defendant has
made a ‘convincing showing that he has both important testimony to give concerning
one count and a strong need to refrain from testifying on the other.’” United States
v. Jardan, 552 F.2d 216, 220 (8th Cir. 1977) (quoting Baker v. United States, 401
F.2d 958, 977 (D.C. Cir. 1968)). “In making such a showing, it is essential that the
defendant present enough information—regarding the nature of the testimony he
wishes to give on one count and his reasons for not wishing to testify on the other—to
satisfy the court that the claim of prejudice is genuine and to enable it intelligently to
weigh the considerations of ‘economy and expedition in judicial administration’
against the defendant’s interest in having a free choice with respect to testifying.” Id.
(quoting Baker, 401 F.2d at 977). Mann did not state in his brief what reason he had
for refraining from testifying on the arson and bombing counts, nor did his brief
indicate what arguments he made to the district court in this matter or if he made them
at all. In his original motion to sever to the district court, Mann stated it was “unclear
whether Mann [would] testify on any counts; however, it [was] clear that his
testimony on the gun counts would pertain solely to his collection of firearms and his


                                          -19-
 iii. Was Mann prejudiced by misjoinder in his defense of the bombing offenses?

       Next, we determine whether Mann was prejudiced in his defense of the
bombing offenses by their joinder with the firearms offenses by looking to the five
factors outlined in Sazenski. First, the jury was instructed to keep the evidence of
each of the charges separate. “[J]uries are presumed to follow their instructions.”
Zafiro v. United States, 506 U.S. 534, 540 (1993) (citation and quotation marks
omitted). The jury acquitted Mann of Count 4, which alleged he illegally possessed
an unregistered shotgun. A jury’s acquittal of a defendant on some of the charges
“indicates that the jury did indeed consider the offenses separately and was able to
‘distinguish among the evidence presented on each count.’” United States v. Sw. Bus
Sales, Inc., 20 F.3d 1449, 1454 (8th Cir. 1994) (quoting United States v. Hutchings,
751 F.2d 230, 236 (8th Cir. 1984)).

       Second, the evidence of Mann’s possession of the M406 40mm grenades would
likely have been admissible in a separate trial on the bombing and arson counts.
Evidence of prior bad acts of a defendant may be admitted under Federal Rule of
Evidence 404(b) to demonstrate knowledge on the part of the defendant, provided the
defense is given proper notice of the Government’s intent to introduce the 404(b)
evidence. Fed. R. Evid. 404(b). “The district court has broad discretion to admit
evidence of other bad acts under Rule 404(b) unless the evidence tends to prove only




knowledge of having failed to properly register certain firearms.” In the motion to
sever, Mann asked the court “to allow him to further consider his anticipated
testimony and to proffer such testimony under seal at a hearing prior to the Court’s
determination of his motion.” Mann did not provide us with any excerpts, transcripts,
or record with respect to such a hearing. Accordingly, we are in no position to
evaluate Mann’s proffer as to his need for separate trials based on the Fifth
Amendment.


                                        -20-
the defendant’s criminal disposition.” United States v. Emmanuel, 112 F.3d 977, 981
(8th Cir. 1997).

      To be admissible [under 404(b)], evidence must . . . meet the following
      conditions: (1) it must be relevant to a material issue; (2) the bad act
      must be reasonably similar in kind and close in time to the crime
      charged; (3) it must be sufficient to support a jury finding that the
      defendant committed the prior act; and (4) the probative value of the
      evidence must outweigh its prejudicial effect.

Id.

       Applying these factors, the evidence of Mann’s possession of the 98 40mm
grenades would have been admissible in a trial on the bombing and arson offenses
under 404(b). Mann’s possession of 98 40mm grenades, though of a different type
than that used in the bombing, is probative evidence that Mann had a working
knowledge of grenades. Mann’s general knowledge of grenades is relevant to
whether he conspired to bomb Dr. Pierce using a grenade. Second, Mann received
the 98 40mm grenades from Lloyd Hahn, the same person who provided Mann with
MK3A2 grenades, the type of grenade used in the bombing. Additionally, the
evidence of Mann’s guilt as to the possession of the 40mm grenades is overwhelming,
as discussed previously. Finally, when joined with an instruction as to the limited
purpose of the evidence of Mann’s grenade possession, the introduction of the
grenade evidence would have been more probative than prejudicial.10


      10
         We note that we have previously stated that “[w]hen the prosecution relies on
a specific type of weapon, it is error to admit evidence that other weapons were found
in (the defendant’s) possession, for such evidence tends to show, not that he
committed the crime, but only that he is the sort of person who carries deadly
weapons.” Walker v. United States, 490 F.2d 683, 684 (8th Cir. 1974) (citation and
alteration marks omitted). We note, however, that Walker did not address
admissibility of evidence of other weapons for the limited purpose of showing


                                        -21-
       Further, in a trial exclusively on the bombing and arson charges, the evidence
that Mann had purchased the type of grenade actually used in the bombing would
have been admissible. We fail to see how Mann could be prejudiced by admitting
evidence of his possession of the 40mm grenades beyond the prejudice he would have
suffered from the clearly admissible evidence that Mann had purchased MK3A2
grenades, which were the same type as the grenade used in the bombing.

       Additionally, the evidence offered to prove Mann possessed the 40mm
grenades was distinct from the evidence offered to support the bombing and arson
charges and was easily segregated. The city workers who found the grenades near
Mann’s home, Mark Rinke and Ryan Kimbell, testified about what they found and
the nature of the area, indicating the proximity of the buried grenades to Mann’s
home. Rinke and Kimbell offered evidence relating only to the 98 40mm grenades
and did not offer any testimony to support the arson and bombing charges. Though
the evidence of the origin and nature of the 40mm grenades came from witnesses who
also testified about the grenade used in the bombing, we find the evidence of the
40mm grenades was sufficiently distinct and separable from the evidence of the
bombing such that the jury members were able to keep the evidence of the separate
counts distinct in their minds. Finally, with regard to the fifth Sazenski factor, this
was not an “en masse trial of numerous defendants.” Only Sangeeta Mann was joined
as a defendant.

      Thus, any misjoinder of Count 3, possession of unregistered grenades, with
Counts 1 and 2, the bombing and arson charges, did not prejudice Mann in his
defense of the bombing charges. Though the evidence of guilt supporting Counts 1




knowledge under 404(b). We find its language distinguishable from the case at hand.



                                         -22-
and 2 may not have been overwhelming, the balance of the Sazenski factors indicates
that Mann was not prejudiced by the misjoinder of Count 3 with Counts 1 and 2.

      Similarly, we find that Mann was not prejudiced in his defense of the bombing
charges by the misjoinder of Counts 5 and 6, the machinegun charges. The jury was
properly instructed to keep the evidence distinct and demonstrated that it did so by
acquitting Mann of Count 4, which alleged Mann illegally possessed an unregistered
shotgun. The trial was not an en masse trial with numerous defendants, and the
evidence of Mann’s possession of the machinegun was distinct from the evidence of
the bombing offenses, as no gun was used in those offenses. For these reasons, we
find no prejudice resulted from the misjoinder of these offenses.

                             iv. Joinder of Defendants

       We decline to determine whether the joinder of defendants was proper because
we find the joinder of Sangeeta Mann as a defendant did not prejudice Mann.
Misjoinder of defendants “requires reversal only if it resulted in actual prejudice
because it had substantial and injurious effect or influence in determining the jury’s
verdict.” United States v. Lueth, 807 F.2d 719, 730 n.6 (8th Cir. 1986) (citation and
quotation marks omitted). The Manns were charged with conspiracy to obstruct
justice and both were charged separately with actually obstructing justice. Each piece
of evidence that the district court admitted relating to Sangeeta Mann was also
evidence against Mann that supported the conspiracy charge and would have been
admitted even if Sangeeta Mann had not been joined as a defendant.

      Accordingly, we find no reversible error relating to the district court’s denial
of severance.




                                        -23-
                                       III. Trial

                    A. Sufficiency of the Evidence as to Count 1

        Mann alleges that the evidence was insufficient to support his conviction for
Count 1, which charged him with using and conspiring to use a weapon of mass
destruction against a person or property within the United States in violation of 18
U.S.C. § 2332a. “We review a challenge to the sufficiency of the evidence de novo,
viewing the evidence and all reasonable inferences in the light most favorable to the
verdict.” United States v. Montes-Medina, 570 F.3d 1052, 1060 (8th Cir. 2009).
“We must affirm a jury verdict if, taking all facts in the light most favorable to the
verdict, a reasonable juror could have found the defendant guilty of the charged
conduct beyond a reasonable doubt.” United States v. Balanga, 109 F.3d 1299, 1301
(8th Cir. 1997). “This is a stringent standard and we will uphold the verdict if there
is an interpretation of the evidence that would allow a reasonable-minded jury to find
the defendant guilty beyond a reasonable doubt.” United States v. McCarthy, 244
F.3d 998, 999-1000 (8th Cir. 2001).

       The district court instructed the jury on two alternative legal theories on which
Mann could be found guilty: (1) conspiring to use a weapon of mass destruction and
(2) aiding and abetting the use of a weapon of mass destruction. The jury found
Mann guilty under both theories.11 Discussing the sufficiency of the evidence for
each theory in turn, we affirm the jury’s finding of guilt as to Count 1 for the
following reasons.




      11
        The Verdict Form for Count 1 returned by the jury stated: “We, the jury in the
above entitled and numbered case, find the defendant RANDEEP MANN, conspired
to use and aided and abetted the use of a weapon of mass destruction.”


                                         -24-
                i. Conspiring to use a weapon of mass destruction

       In order to sustain a conviction on Count 1, conspiring to use a weapon of mass
destruction, the Government was required to prove: (1) that Mann used or conspired
to use a weapon of mass destruction without lawful authority, (2) that he did so
against a person or property within the United States, and (3) that the offense, or the
results of the offense, affected interstate commerce. 18 U.S.C. § 2332a(2)(D).
Because one of the Government’s theories was that Mann conspired with another to
commit the act, the Government also had to prove (1) an agreement existed between
two or more people to use a weapon of mass destruction, (2) Mann knowingly and
intentionally joined the agreement, and (3) Mann was aware of the agreement’s
purpose. See United States v. Wells, 646 F.3d 1097, 1102 (8th Cir. 2011).

      First, we address the sufficiency of the evidence for the jurisdictional element.
Under 18 U.S.C. § 2332a(2)(D), federal jurisdiction is allowed where the offense
“affect[s] interstate or foreign commerce.” When Congress uses the unqualified
language “affects interstate commerce” as the jurisdictional hook in a statute, the
language “signal[s] Congress’ intent to invoke its full authority under the Commerce
Clause.” Jones v. United States, 529 U.S. 848, 854 (2000). Where a statute contains
“an express jurisdictional nexus to interstate commerce,” violations that have merely
a de minimis effect on interstate commerce satisfy the jurisdictional requirement.
United States v. Dobbs, 449 F.3d 904, 912 (8th Cir. 2006).

       We have not yet had an opportunity to determine what activities sufficiently
affect interstate commerce to be actionable under section 2332a. However, we have
ample caselaw touching on what is required to show an activity affects commerce
under statutes similar to section 2332a that also contain the “affecting interstate
commerce” language as the jurisdictional hook. Our Hobbs Act jurisprudence is
helpful, and other circuits have relied on Hobbs Act cases in determining what



                                         -25-
activities sufficiently affect interstate commerce so as to be covered by section 2332a.
See, e.g., United States v. Davila, 461 F.3d 298, 306 (2d Cir. 2006) (applying Hobbs
Act jurisdiction theories to an 18 U.S.C. § 2332a case).

       The Hobbs Act, 18 U.S.C. § 1951, is the federal robbery statute. If a business
is robbed, the Government can meet the Hobbs Act’s jurisdictional requirement by
proving the robbery depleted the assets of a business operating in interstate
commerce. See United States v. McCraney, 612 F.3d 1057, 1065 (8th Cir. 2010),
cert. denied, Williams v. United States, 131 S. Ct. 1784 (2011); United States v.
Williams, 308 F.3d 833, 838-39 (8th Cir. 2002). Under the Hobbs Act, a robbery
affects commerce where it results in a business temporarily closing to recover from
the robbery. See United States v. Quigley, 53 F.3d 909, 910 (8th Cir. 1995) (citing
United States v. Davis, 30 F.3d 613, 614-15 (5th Cir. 1994)). Similarly, under section
2332a, a violation of the statute that results in a depletion of assets—including lost
business opportunities—of a business operating in interstate commerce satisfies the
“affecting commerce” language of the statute warranting federal jurisdiction.

        The Government presented evidence at trial that Mann’s violation of section
2332a resulted in significant losses to Dr. Pierce’s medical clinic, the Family Practice
Center of West Memphis. Pam Falkner, the accountant for Dr. Pierce’s clinic,
testified that the clinic’s profits declined after the bombing by $269,343 in one year.
Dr. Pierce testified that he is physically unable to treat the high volume of patients he
treated before the bombing and has had to scale back the hours he works in a day.
Additionally, Falkner testified the clinic hired an additional physician during 2009
to see Dr. Pierce’s patients because he was unable to treat them all himself, as he had
done before the bombing. The clinic was closed completely on the day of the
bombing and the following two days, though it was able to reopen the following week
as 33 doctors volunteered to cover the clinic during the time Dr. Pierce was in the
hospital.



                                          -26-
       Additionally, the Government presented sufficient evidence to support the
jury’s finding that Dr. Pierce’s Family Practice Center of West Memphis operated in
interstate commerce. Dr. Pierce’s wife, Melissa Pierce, who functions as the office’s
manager and head nurse, testified as to the clinic’s interstate activities. Through her
testimony, the Government introduced into evidence invoices showing the clinic
ordered its medical supplies from outside of Arkansas. The Government also
presented evidence that out-of-state service companies routinely serviced part of the
clinic’s medical equipment. Similarly, a Tennessee company disposed of the clinic’s
biowaste, and an out-of-state company performed the clinic’s quality-control testing.
Additionally, the clinic routinely treated patients from a variety of states. Thus, there
was ample evidence to support the jury’s finding that the bombing of Dr. Pierce
affected interstate commerce because it resulted in a depletion of assets of his clinic,
which did business in interstate commerce.

       Mann contends that we have not extended our depletion-of-assets theory to
cases involving individual victims, and the bombing was an attack on Dr. Pierce,
individually, at his personal residence, rather than an attack on his clinic. We have,
however, extended the depletion-of-assets theory to cases where an individual
functions as a business. For example, in Williams, we found the robbery of an owner-
driver of a taxicab affected commerce because it resulted in “[t]he lost opportunities
to carry customers and packages that might be traveling or carried interstate.”
Williams, 308 F.3d at 838-39. Similarly, we have found that a robbery of drugs from
an individual drug trafficker affects commerce because it “disrupt[s] the movement
of a commodity in interstate commerce.” McCraney, 612 F.3d at 1065.

      Dr. Pierce’s medical clinic was a sole proprietorship, Trent B. Pierce, M.D.,
doing business as Family Practice Center of West Memphis. Prior to the bombing,
Dr. Pierce was the only physician who routinely worked in the clinic. As the only
physician in his clinic, Dr. Pierce functioned both as a business and as an individual.



                                          -27-
However, even if we were to accept Mann’s theory that the attack on Dr. Pierce was
an attack on the individual and not on the business, we have stated that where an
attack is made on an individual, federal jurisdiction still exists where “the acts cause
or are likely to cause the individual victim to deplete the assets of an entity engaged
in interstate commerce.” Quigley, 53 F.3d at 910-11. Because Dr. Pierce ran a sole
proprietorship, it was likely that a violent attack on him would result in lost business
opportunities for his clinic. For these reasons, Mann’s challenge to the jurisdictional
requirement fails.

       Second, Mann argues there was insufficient evidence presented that he
conspired with another to use a weapon of mass destruction. “A defendant
challenging the sufficiency of the evidence in a conspiracy case has a heavy burden.”
United States v. Mickelson, 378 F.3d 810, 821 (8th Cir. 2004). “The fact that the
identity of some or all other members of the conspiracy remains unknown will not
preclude a conspiracy conviction.” United States v. Agofsky, 20 F.3d 866, 870 (8th
Cir. 1994). If the government proves beyond a reasonable doubt that a defendant was
a member of a conspiracy, the defendant may be convicted for playing even a “minor
role.” United States v. Lopez, 443 F.3d 1026, 1030 (8th Cir. 2006) (en banc). By
design, a conspiracy to commit a crime is “highly secretive,” and, therefore, its
existence may be proven through circumstantial evidence alone. Agofsky, 20 F.3d
at 870; see also Mickelson, 378 F.3d at 821 (finding details of conspiracies are often
“shrouded in secrecy”). Finally, proof of an “explicit, formal agreement” is not
required to prove the existence of a conspiracy; instead, a conviction can rest on a
tacit understanding. United States v. Hudspeth, 525 F.3d 667, 678 (8th Cir. 2008).

      The Government’s theory at trial was not that Mann himself actually carried
out the bombing, but that he conspired with at least one other to carry it out. We
conclude that during the five-week trial the Government presented ample




                                         -28-
circumstantial evidence to support the jury’s finding that Mann was a member of the
conspiracy.

       Mann has an alibi for the time period of the execution of the bombing, however
the Government presented substantial evidence of Mann’s motive to harm Dr. Pierce.
Mann had a long history of investigations by the Board, and Dr. Pierce testified that
he had been particularly vocal about his belief that Mann was providing improper
care to his patients. Dr. Pierce stated that he had expressed frustration that Mann
seemed unable to recognize his failures and admonished him publicly in front of the
Board. Gerard Riley, a friend of Mann’s, testified that Mann once told Riley that he
wished he could kill the members of the Board because of the way they had made him
suffer by taking away his Drug Enforcement Agency (DEA) license. Additionally,
Riley testified that after the bombing, Mann suggested that perhaps the bombing had
achieved its intent by causing Dr. Pierce to suffer. The Government also presented
evidence of events which occurred shortly before the bombing and which provided
additional motive for Mann to harm Dr. Pierce. Specifically, Rita Barthelme, a
patient and friend of Mann’s, testified that she informed Mann in January 2009 that
her sister had made a complaint to the Board alleging that Mann was still prescribing
prescription drugs even though he had surrendered his DEA license. The bombing
occurred the following month.

       Additionally, Mann had access to the type of unique weapon used in the
bombing. The Government presented evidence that Mann had owned grenades of the
same type and model as the one used in the bombing. Steven Shelley, an explosives
enforcement officer with the Bureau of Alcohol, Tobacco and Firearms, testified that
the grenade used in the explosion was most likely an MK3A2 concussion grenade.
The MK3A2 is a rare grenade normally used by special forces soldiers, such as Army
Rangers or Navy SEALs. Lloyd Hahn testified that he had sold Mann approximately
eight MK3A2 grenades in the late 1990s. Jeff Kimbrough, who installed Mann’s



                                        -29-
alarm system in 2004, testified he saw similar grenades in Mann’s home after being
shown a disarmed MK3A2 by the Government.12

       The Government also presented evidence that Mann had access to the type of
tire and rim used in the bombing. Phil Barthelme testified that he drove with Mann
to the home of Pete Patel, Mann’s business partner, and that Mann stated he was
picking up a tire from Patel. Patel owned a 2002 Nissan Altima, and after the
bombing, investigators found that the original “donut” spare tire13 from Patel’s Altima
was missing. Instead, a full-size tire was in the trunk of Patel’s Altima. Government
officers searched Patel’s home, garage, and warehouse but could not find the missing
tire. Mark Tanaka, an engineer in the products safety department of Nissan, testified
that the spare tire used in the bombing was a Nissan Altima “donut” tire that was
produced in April 2002 and that tires are typically installed about two months after
they are manufactured. Based on its vehicle identification number, the Altima owned
by Pete Patel was manufactured two months later in June 2002.

      The Government introduced the testimony of Stephen Briscoe, an inmate who
met Mann in the Pulaski County Detention Facility. Briscoe and Mann were
introduced in August 2009 by another inmate during a card game. According to
Briscoe, a few days after their initial introduction, Mann offered to pay Briscoe
$50,000 to kill Dr. Pierce, stating that “Dan and them didn’t do a good job the first
time.” Briscoe testified that Mann told him that Dr. Pierce “was messing up his life
and suspended his right to prescription meds . . . and was hating on him because he
was Hindu and he wanted Dr. Trent Pierce dead.” Additionally, Briscoe testified that
Mann “knew that he was going to be charged with a car bombing of Dr. Trent Pierce


        12
             He also saw something similar to the 40mm grenades found near Mann’s
home.
        13
             A “donut” tire is a smaller tire intended for temporary use.


                                             -30-
and that he didn’t want Dr. Trent Pierce to be able to come to court because the jury
was going to automatically feel sorry for [Dr. Pierce] . . . .” Briscoe testified further
that Mann requested the killing appear to be a “drive-by,” and told Briscoe that if he
agreed to kill Dr. Pierce, Dan would deliver a gun and $50,000 to him. The
Government introduced evidence that Mann’s son went by the name of Dan. The
government also introduced evidence that Mann had access to $50,000 in the form
of a $50,000 cash deposit made by Mann’s wife on August 21, 2009, and $48,000 in
cash found by investigators in the trunk of Mann’s Shelby Cobra on March 5, 2009.

       Additionally, Dr. Pierce’s housekeeper, Velma Gales, testified that on the night
before the bombing she saw a suspicious man jogging in place near Dr. Pierce’s
house, and that the man looked like “one of those people that wear those little dots
. . . on his forehead” and may have been “Iranian or something.” Evidence
established that members of Mann’s family were from India. Additionally, there was
evidence that Mann sent a picture of Dr. Pierce to his brother in India prior to the
bombing, stating that Dr. Pierce was in the picture and stating Mann’s hope that the
picture was a good one. After Mann was arrested, his wife burned documents in the
yard; one of the items recovered by ATF agents was a bank binder with the name of
Mann’s brother on it. Additionally, Mann instructed his wife to remove documents
from his clinic before officers executed a search warrant. Some of the documents
related to his son, Dan.

      Mann’s argument on appeal is principally an attack on the credibility of witness
testimony. For example, Mann points out that although Phil Barthelme testified
Mann and Patel spoke in another language which he could not understand when they
discussed the tire, Mann presented evidence that English was the only language
shared by Mann and Patel. Further, Mann points out that Velma Gales did not tell the
police about the suspicious man until months after the bombing. However, witness
credibility is for the jury to determine. “It is the function of the jury, not an appellate



                                           -31-
court, to resolve conflicts in testimony or judge the credibility of witnesses.” United
States v. Harrison, 671 F.2d 1159, 1162 (8th Cir. 1982) (per curiam). “Such
credibility findings are ‘virtually unreviewable on appeal.’” United States v.
Hernandez, 569 F.3d 893, 897 (8th Cir. 2009) (quoting United States v. Boyce, 564
F.3d 911, 916 (8th Cir. 2009)). Many of the witnesses were cross examined at length,
and all of Mann’s arguments as to plausibility and credibility were ably made to the
jury. We recognize that where “[d]ocuments or objective evidence . . . contradict the
witness’ story; or the story itself . . . [is] internally inconsistent or implausible on its
face” the jury is not entitled to credit the testimony. Moore v. Novak, 146 F.3d 531,
535 (8th Cir. 1998). However, Mann has not demonstrated that any of the testimony
was sufficiently inconsistent or implausible so as to take the credibility determination
away from the jury, and, therefore, the jury was entitled to credit the testimony of the
Government’s witnesses over Mann’s defense.

       In addition to attacking the credibility of Government witnesses, Mann offered
innocent explanations for some of the evidence presented at trial. Mann argues that
thousands of MK3A2 grenades have been produced and that it is unreasonable to
believe that Mann would have stored the grenades he bought from Hahn for over a
decade. Mann also explained why he sent a picture of Dr. Pierce to his brother by
offering evidence that in the Hindu religion, it is common to send pictures to relatives
so that they can better pray for people in positions of authority over their family
members.

      The jury was not required to accept Mann’s theory of the case or his
explanation of the evidence presented against him. See Pletka v. Nix, 924 F.2d 771,
773 (8th Cir. 1991) (noting “jury was entitled, though not required, to accept”
defendant’s theory of the case). “For evidence to be substantial, it need not exclude
every reasonable hypothesis of innocence, but simply be sufficient to convince the




                                           -32-
jury beyond a reasonable doubt that the defendant is guilty.” United States v. Drees,
146 F.3d 604, 605 (8th Cir. 1998) (citation and internal quotation marks omitted).

       Mann also attacks the testimony of Stephen Briscoe and contends Briscoe’s
testimony is legally insufficient to support a conviction. According to Mann, Briscoe
is not credible and his testimony has little probative value because the Government
did not call other inmates as witnesses to corroborate that Mann solicited Briscoe to
kill Dr. Pierce.

      Although Briscoe is a jailhouse snitch, the jury was entitled to weigh, consider,
and ultimately believe some or all of his testimony. Further, it is well-settled in this
Circuit that a conviction will not be

          rendered legally infirm simply because much of the testimony
          linking [a defendant] to the conspiracy came from “jailhouse
          snitches” and codefendants. Such considerations bear on those
          witnesses’ credibility, and it is not our province on appeal to
          reweigh the evidence or judge the credibility of witnesses when
          reviewing the sufficiency of the evidence.

United States v. Wells, 646 F.3d 1097, 1104 (8th Cir. 2011) (internal quotation marks
and alteration omitted).

      The jury heard evidence and argument challenging Briscoe’s credibility, but
nothing about Briscoe’s testimony justifies rejecting it as a matter of law. See United
States v. Crenshaw, 359 F.3d 977, 988 (8th Cir. 2004) (“The test for rejecting
evidence as incredible is extraordinarily stringent and is often said to bar reliance
only on testimony asserting facts that are physically impossible.”). Significantly,
Briscoe was subjected to a rigorous cross-examination and the jury was presented
with evidence that Briscoe: cooperated and testified against other defendants on three



                                         -33-
separate occasions in exchange for a reduction in his sentences; had a significant
criminal history; sought and was denied a one-year reduction in his sentence from the
prosecutor in this case; had only known Mann for two days when Mann solicited Dr.
Pierce’s murder; and did not testify consistently before the grand jury. However,
“[t]estimony does not become legally unsubstantial because the witness stands to gain
by lying; the defendant is entitled to cross-examine such witnesses to expose their
motivations, and it is up to the jury to decide whether the witness is telling the truth
despite incentives to lie.” Id. Therefore, it is not within our province on appeal to
reweigh Briscoe’s testimony when reviewing the sufficiency of the evidence because
that was a determination for the jury.

       Further, we conclude that Mann’s conspiracy conviction stands without
consideration of Briscoe’s testimony. In keeping with the highly secretive design of
such a crime, the Government’s case and Mann’s agreement were proven through the
use of circumstantial evidence. See Agofsky, 20 F.3d at 870. Viewing all of the
evidence in the light most favorable to the Government, someone attacked Dr. Pierce
on February 4, 2009 by using a bomb made from an MK3A2 grenade and a 2002
Altima spare tire. Mann had an alibi as to the time frame of the bombing, but he also
had a motive to harm Dr. Pierce: not only had he made statements that he wanted the
Board dead, he suggested the bombing achieved its intent by making Dr. Pierce
suffer. Further, Mann knew that he was likely the subject of additional disciplinary
action.

       Mann also had access to rare MK3A2 grenades and a 2002 Altima spare tire
to construct the explosive device. The tire used in the bombing was manufactured
two months before Patel’s Altima, fitting the standard time frame suggested by an
Altima employee. Mann had sent a picture of Dr. Pierce to his brother in India. After
his arrest, Mann’s wife burned documents later discovered to relate to the bank
records of his brother. Also, Velma Gales testified that the night before the bombing



                                         -34-
she saw a suspicious man jogging in place in front of Dr. Pierce’s home that the jury
could have inferred was Mann’s son.

       Considering this evidence as a whole and in the light most favorable to the
Government, Mann had the motive and weapon to accomplish the bombing and
engaged the help of, and agreed with, at least one other person to carry out the
bombing. The Government was not required to prove the identity of the other
members of the conspiracy, and was able to prove Mann’s involvement entirely
through circumstantial evidence. Thus, we find that, with or without the testimony
of Stephen Briscoe, it was not unreasonable for the jury to find that Mann knowingly
and intentionally entered into an agreement with another individual to use a weapon
of mass destruction against Dr. Pierce.

      For these reasons, we affirm the jury’s conviction on Count 1 of conspiracy to
use a weapon of mass destruction.

         ii. Aiding and abetting the use of a weapon of mass destruction

        The jury also convicted Mann of aiding and abetting the commission of use
of a weapon of mass destruction. See 18 U.S.C. § 2332a; 18 U.S.C. § 2. To convict
Mann of aiding and abetting, the Government had to prove Mann: “(1) associated
himself with the unlawful venture; (2) participated in it as something he wished to
bring about; and (3) sought by his actions to make it succeed.” United States v.
Santana, 524 F.3d 851, 854 (8th Cir. 2008). Association alone is insufficient;
however, “jurors can be assumed to know that criminals rarely welcome innocent
persons as witnesses to serious crimes and rarely seek to perpetrate felonies before
larger-than-necessary audiences.” Id. (citation omitted). And a conviction for aiding
and abetting does not require proof of an agreement, but rather “affirmative




                                        -35-
participation which at least encourages the perpetrator.” United States v. Thomas,
971 F.2d 147, 149-50 (8th Cir. 1992).

       Mann argues his conviction for aiding and abetting was not supported by the
evidence. He contends that the evidence presented by the Government—specifically,
the grenade, tire, and motive—cannot support reasonable inferences of guilt, and
merely generate speculation or conjecture. We draw reasonable inferences in favor
of the jury’s verdict, but the Government is not entitled to inferences based on
conjecture and speculation. United States v. Boesen, 491 F.3d 852, 858 (8th Cir.
2007). We do not consider the evidence against Mann piecemeal. Instead, we look
at the evidence “as a whole,” United States v. Cook, 603 F.3d 434, 437 (8th Cir.
2010), including circumstantial evidence, United States v. Ellefson, 419 F.3d 859,
862-63 (8th Cir. 2005).

      Contrary to Mann’s contention, the Government did not simply introduce
evidence that Mann had a grenade and a tire. Rather, as previously described, there
was ample evidence presented to support the inferences drawn by the jury that Mann
possessed a weapon of mass destruction and supplied it to another knowing it would
be used to harm Dr. Pierce. Considering the totality of this evidence, we cannot
reverse the jury’s verdict because a reasonable jury could conclude beyond a
reasonable doubt that Mann aided and abetted the use of a weapon of mass
destruction. Therefore, we affirm the jury’s conviction on Count 1.



                   B. Sufficiency of the Evidence as to Count 2

       In Count 2, Mann was charged with aiding and abetting the malicious damage
or destruction of a vehicle by means of an explosive in violation of the federal arson
statute. See 18 U.S.C. § 844(i). The Government was required to prove Mann aided



                                        -36-
and abetted in: (1) maliciously damaging or destroying,14 (2) by means of fire or an
explosive, (3) a vehicle used in interstate or foreign commerce or in any activity
affecting interstate or foreign commerce. See id.

       The evidence presented with respect to this charge was the same as the
evidence presented on Count 1: Mann used a weapon of mass destruction against a
person or property within the United States. For the reasons previously discussed, the
evidence as to the perpetration of the bombing and arson was sufficient to support the
jury’s verdict on the first two elements of section 844(i).

       Mann contends the Government presented insufficient evidence to support the
jurisdictional element of 18 U.S.C. § 844(i). To satisfy a conviction under Count 1,
any de minimis affect on commerce was sufficient; however, to sustain a conviction
under Count 2, the Government had to prove that the damaged vehicle itself was
“used in interstate or foreign commerce or in any activity affecting interstate or
foreign commerce.” 18 U.S.C. § 844(i).

       When analyzing whether property was “used in” interstate commerce for
purposes of section 844(i), the Supreme Court has reasoned the proper inquiry
examines the function of the property itself, and then determines “whether that
function affects interstate commerce.” See Jones, 529 U.S. at 854 (internal quotation
marks omitted). Section 844(i)’s jurisdictional requirement “is most sensibly read to
mean active employment for commercial purposes, and not merely a passive, passing,
or past connection to commerce.” Id. at 855. The statute does not extend to damaged
or destroyed property that “might affect interstate commerce”; instead, Congress
requires that the property itself was used in interstate commerce or an activity


      14
        The Government introduced the bumper of Dr. Pierce’s vehicle at trial,
sufficiently establishing that the vehicle was damaged.


                                        -37-
affecting interstate commerce. Id. at 854 (internal quotation marks omittted).
Therefore, in Jones, the Court held that because the owner’s home was used as “the
center of his family life” rather than in a “trade or business,” the jurisdictional
requirement was not met. Id. at 856.

       Following the analytical framework set forth by the Court in Jones, we must
first consider the function of the vehicle. Then, we will consider if sufficient
evidence supports the determination that the vehicle’s function affects interstate
commerce.

      The Government presented evidence, uncontested by Mann, demonstrating the
various functions of Dr. Pierce’s automobile. Dr. Pierce testified that he drives his
vehicle bi-monthly to Little Rock, Arkansas from West Memphis, Arkansas for Board
meetings. Peggy Cryer, the executive secretary of the Board, testified that Board
members are reimbursed for their mileage and hotel expenses for travel to Board
meetings and are paid $115 for each day that they attend the meetings. At trial, the
Government introduced Dr. Pierce’s travel reimbursements dating back to December
2006. As further evidence that Dr. Pierce used his automobile to conduct Board
business, the Government introduced evidence that Pierce uses his vehicle for the
purpose of transporting Board files. The Board regularly ships files to its members
so that they may prepare for meetings. Board members are expected to transport
these files with them to the Board meetings in Little Rock. On the day of the
bombing, Dr. Pierce was preparing to go to Little Rock to attend a Board meeting,
and his car contained the Board files when it was damaged in the bombing.

       Having considered the function of Dr. Pierce’s vehicle, we must now consider
if the function affects interstate commerce. We find our prior decision in United
States v. Michaels, 726 F.2d 1307 (8th Cir. 1984) controlling, because the victim
actively used his automobile for business purposes, and the court applied the same



                                        -38-
two-step analysis adopted by the Jones Court. See Michaels, 726 F.2d at 1310
(finding that the personal automobile was used to conduct business and then holding
the business accomplished with the car affected interstate commerce).

       In Michaels, the defendant was charged with destroying the automobile of a
union organizer. Id. The “uncontradicted evidence sufficiently demonstrate[d] that
the Cadillac automobile was used by [the victim] to conduct union business.” Id. As
a union organizer, the victim “traveled to various job sites for the purpose of enrolling
new members in the union and collecting money owed the union by current members.”
Id. The union paid him $200 per month as a “reimbursement for using his personal
automobile to conduct union business.” Id. The court concluded the “use of the
automobile was an integral and necessary part of [the victim’s] job assignment and
was not merely a means of traveling to and from work.” Id. To prove the victim in
Michaels used his personal automobile to conduct union business, the Government
introduced evidence obtained at the scene of the bombing. Id. This included a
briefcase containing membership forms, booklets, receipts, and agreements relating
to union business. Id.

       The Tenth Circuit has also considered whether vehicles were “used in”
commerce for the purpose of the federal arson statute. Compare United States v.
Grassie, 237 F.3d 1199, 1212 (10th Cir. 2001) (holding use of personal truck to
transport pecans satisfied the “used in” commerce requirement ), with United States
v. Monholland, 607 F.2d 1311, 1316 (10th Cir. 1979) (holding judge’s truck, which
was only used to transport judge “back and forth” from work, was not “used in”
commerce). In Monholland, the court held the judge’s use of his truck had an affect
on interstate commerce that was “something less than what is de minimis.”15 607 F.2d

      15
       In Michaels, this Court was similarly faced with determining whether the
Tenth Circuit’s reasoning in Monholland precluded holding jurisdiction satisfied.
Michaels, 726 F.2d at 1310 (citing Monholland, 607 F.3d at 1314-16). In


                                          -39-
at 1316. There, the only evidence of interstate commerce was “the fact that a judge
has handled various kinds of cases which involve parties who have come to Oklahoma
in order to litigate.” Id. The court reasoned that for there to be a connection “between
the vehicle and the work, it must be shown that there exists a nexus between the two
activities.” Id.

       In Grassie, the Tenth Circuit held, as we do in this case, that “Jones does not
pronounce law on any point which requires us to reverse these convictions,” and
continued to follow its prior precedent from Monholland. See 237 F.2d at 1207. The
court distinguished Monholland, however. See id. at 1212. It held that although the
victim’s use of a truck “approaches that level” of being so remote as to constitute
“something less than de minimis,” it was still used in interstate commerce. Id. (citing
Monholland, 607 F.2d at 1316). In Grassie, a student had used his personal vehicle,
a Ford Bronco, to transport pecans to a broker, id. at 1205, but the use was only
seasonal, the pecans were only transported approximately two miles, the victim was
not reimbursed or paid for this service, and the vehicle was not being used for this
purpose when it was damaged, id. at 1212.

       The Government contends Dr. Pierce used his vehicle in an activity affecting
commerce because he used the vehicle to transport himself and Board files to Board
meetings and the Board is engaged in interstate commerce. Ms. Cryer testified that
the Board credentialed physicians and health providers and sold information relating
to those credentials to hospitals and insurance companies located outside of Arkansas.
Additionally, the Board is paid licensing fees from physicians who are licensed in


Monholland, the court reasoned that because the judge would find another means to
travel to work if the vehicle failed, the vehicle was “immaterial as far as any
commerce” was concerned. 607 F.3d at 1316. If that logic prevailed, then we would
have also found jurisdiction lacking in Michaels. If the union organizer’s vehicle
failed, he would have used a different vehicle to conduct union business.


                                         -40-
Arkansas but live elsewhere. Finally, the Board sends information regarding its
disciplinary actions to the Federation of State Medical Boards, located in Texas, and
provides that information to the National Practitioner Data Bank. Based on these
facts, the Government presented sufficient evidence to support the jury’s finding that
the Board’s activities affect interstate commerce.

       Like the union organizer in Michaels, Dr. Pierce received an “allowance as
reimbursement for using his personal automobile to conduct [Board] business.” See
Michaels, 726 F.2d at 1310. Just as the union organizer in Michaels “traveled to
various job sites for the purpose of enrolling new members in the union and collecting
money owed the union by current members,” id., Dr. Pierce, as the Chairman of the
Board, traveled to Little Rock for the purpose of evaluating doctors licensed by the
Board and fining physicians pursuant to the Medical Practice Act. Dr. Pierce was
reimbursed for the use of his vehicle, not only for travel to Board meetings, but also
for other trips he made in his capacity as Chairman.

       Additionally, Dr. Pierce’s vehicle was an integral part of his Board membership.
The vehicle’s function was not only to transport Pierce to Board meetings and other
trips made on behalf of the Board, but it was also used to transport Board files to the
meetings, instead of shipping them. The entire premise of the Government’s
prosecution was that Dr. Pierce was targeted precisely because of his Board activities,
which required the use of his personal vehicle. Significantly, just as this Court in
Michaels reasoned that files found in the victim’s personal car provided evidence the
victim used the car to conduct union business, id., the Board files were in Dr. Pierce’s
vehicle when it was damaged in the bombing. Further, Dr. Pierce was preparing to get
in the vehicle to drive to a Board meeting when the bomb exploded. This indicates the
vehicle was “actively employed” in its role in interstate commerce and demonstrates
an even stronger connection to being “used in” commerce than the vehicle in Grassie,
a case relying on Monholland. See Grassie, 237 F.3d at 1212 (holding jurisdictional



                                         -41-
requirement met even though victim was not using vehicle in commercial activity at
time of arson).

       Based on the facts of this case, we hold the similarities in Michaels controlling,
and reviewing this challenge to sufficiency of the evidence “in the light most favorable
to the verdict” and accepting every reasonable inference in support of the verdict, see
Montes-Medina, 570 F.3d at 1060, we find that Dr. Pierce’s vehicle was “used in”
commerce, within the Jones Court’s interpretation of section 844(i). Here, there was
a nexus between the vehicle and the Board’s work that made the use more than a
means of traveling to and from work, but rather property used in a “trade or business.”
See Jones, 529 U.S. at 856. Therefore, the evidence was sufficient to support the
jurisdictional requirements pronounced by Jones. Accordingly, we affirm Mann’s
conviction as to Count 2.

                    C. Sufficiency of the Evidence as to Count 3

       Next, Mann contends that the evidence was insufficient to support the jury’s
finding that he violated 26 U.S.C. § 5861(d) by unlawfully possessing 98 40mm M406
unregistered grenades. Section 5861(d) makes it unlawful “to receive or possess a
firearm which is not registered . . . in the National Firearms Registration and Transfer
Record.” The term “firearm” as used in section 5861(d) applies only to certain
weapons, as detailed in 26 U.S.C. § 5845(a); grenades are included in the definition
of firearms under section 5845(f). See 26 U.S.C. § 5845. Though the registration
statute does not contain a mens rea requirement, we read in a requirement that the
defendant must knowingly possess the firearm and that he must know that his weapon
is capable of functioning as one of the firearms listed in 26 U.S.C. § 5845. See United
States v. Smith, 508 F.3d 861, 866 n.3 (8th Cir. 2007); United States v. Barr, 32 F.3d
1320, 1323 (8th Cir. 1994). Therefore, in order to support a conviction for Count 3,




                                          -42-
the Government was required to prove that Mann knowingly possessed unregistered
grenades that were capable of functioning as grenades. See 26 U.S.C. § 5861(d).

       Mann contends the Government’s evidence was insufficient to prove he
possessed the grenades. The grenades were not found in Mann’s actual possession or
on his property. However, the Government can prove possession by showing Mann
had actual or constructive possession of the grenades. See Smith, 508 F.3d at 866.
Constructive possession exists where the defendant has “‘ownership, dominion or
control’” over the firearm. Id. “Mere physicial proximity to a firearm is not enough
to show constructive possession, ‘but knowledge of [a firearm’s] presence, combined
with control is constructive possession.’” Id. (citation omitted). We recognize that
“‘a jury rarely has direct evidence of a defendant’s knowledge’” of a firearm’s
presence, and therefore knowledge is “‘generally established through circumstantial
evidence.’” Id. at 867 (citation omitted).

      City workers discovered the 98 40mm grenades buried approximately 900 feet
from Mann’s home. Evidence at trial indicated the grenades were found in a largely
undeveloped subdivision where four homes were located, including Mann’s. The
grenades were found on March 3, 2009, within a month of the bombing of Dr. Pierce,
and two witnesses testified that the grenades appeared to have been freshly buried.
The grenades were buried in a green military container, and agents discovered similar
green military containers in Mann’s home, including one with the same lot number as
the buried canister. Agents also found practice grenades, two grenade launchers
capable of firing 40mm grenades, and manuals on how to use grenades and grenade
launchers in Mann’s home.

      Additionally, Lloyd Hahn testified that after selling Mann several practice
grenades, he requested that Hahn keep him in mind if Hahn came into possession of
any live grenades. Hahn testified that he sold Mann roughly 100 active 40mm



                                        -43-
grenades. Hahn also testified that he removed the manufacturing date from the
grenades he sold Mann and wiped the grenades clean of fingerprints. Two agents
testified that portions of the manufacturing date were removed from the buried
grenades, and no fingerprints were found on them.

      From this evidence, the jury could have reasonably concluded that Mann owned
and had sufficient control over the grenades to establish that he was in constructive
possession of them. For these reasons, we affirm Mann’s conviction as to Count 3.

                D. Sufficiency of the Evidence as to Counts 5 and 6

       Next Mann contends that there was insufficient evidence to support his
convictions for possession of a machinegun and for possession of an unregistered
machinegun. As we have previously stated, one of those convictions will be set aside
by the district court on remand based on a double jeopardy violation. Accordingly, we
decline to evaluate the sufficiency of the evidence without knowing which conviction
will stand.

                E. Sufficiency of the Evidence as to Counts 7 and 8

       Mann argues the evidence was insufficient to support his convictions on Counts
7 and 8, which alleged obstruction of justice. Specifically, he alleges the prosecution
failed to prove that Mann acted dishonestly or in contemplation of a particular official
proceeding in which the obstructed information might have been material. Mann also
argues that the jury instructions on Counts 7 and 8 allowed the jury to convict Mann
for innocent conduct.

     Count 7 charged Mann with violating 18 U.S.C. § 1512(c)(2) and (k), which
make it a crime to conspire to “corruptly” “obstruct[], influence[], or impede[] any



                                         -44-
official proceeding, or attempt[] to do so.” 18 U.S.C. § 1512(c)(2). Count 8 charged
Mann with violating 18 U.S.C. § 1512(c)(1) and (2), which make it a crime to
corruptly alter, destroy, mutilate, or conceal a record, document, or other object, or
attempt to do so, with the intent to “impair the object’s integrity or availability for use
in an official proceeding.” 18 U.S.C. § 1512(c)(1)-(2). We have found that a
defendant can be convicted of knowingly engaging in corrupt persuasion where the
defendant “acted with ‘consciousness of wrongdoing.’” United States v. Craft, 478
F.3d 899, 900 (8th Cir. 2007) (citation omitted).

       The evidence at trial indicated that on March 6, 2009, while Mann was
incarcerated pending his detention hearing, Sangeeta Mann told Mann that Mann’s
lawyer had informed her that agents likely would be searching Mann’s office soon.
Mann instructed her to remove “the Sunny stuff” from a drawer in his office and to
give it to Gerard Riley or to an individual named Tim. Evidence indicated that “the
Sunny stuff” referred to papers of Mann’s brother, Sandip, who was a person of
interest in the bombing. The Manns appeared aware of the pending detention
proceeding because Sangeeta mentioned to Mann that he would be home in a few
more days. In another conversation, Mann and Sangeeta discussed her upcoming
testimony before the grand jury. Mann instructed Sangeeta to go to his office and tidy
up and “take out Dan’s papers, ownerships, and all that stuff. Give it to Dan.”

      Evidence indicated that Dan, Mann’s son, was also a person of interest in the
bombing. After the search warrant was executed on the office, Mann asked Sangeeta
what the agents seized from the office, and she told him “we did good.” Additionally,
Mann asked Sangeeta to call Phil Barthelme, and Mrs. Mann responded: “She said she
would keep taking care of it every night,” apparently referring to Phil’s wife, Rita
Barthelme, who testified she took several carloads of things from the Manns’ home
and burned them. In another conversation, Mann asked Sangeeta whether she
“clean[ed] the van” because he “had some medical record stuff in plastic” that needed



                                           -45-
to be eliminated. Mann appeared to get frustrated when he learned that Sangeeta had
not yet cleaned the van. Gerard Riley testified that Sangeeta Mann brought him a file
of papers to keep after Mann was arrested and that she retrieved the papers the next
day. Riley told Sangeeta that ATF agents knew she had given him the file, and Mrs.
Mann stated, “they don’t know everything.”

      Mann argues on appeal that the evidence failed to prove he knew the items
moved would be relevant to an official proceeding because “[t]he proof did not show
any particular proceeding the Manns consciously intended to impede by moving the
documents or objects from the office.” Mann contends that the detention hearing was
the only official proceeding of which he and Sangeeta were aware, and there is no
evidence that they knew the documents would be relevant to the detention hearing.
Mann argues that because the two did not remove documents for the purpose of
concealing them from an official proceeding, their conduct was not unlawful. Mann
also notes that there were innocent reasons for the removal of the documents,
including security.

      Though Mann offers innocent explanations of his and Sangeeta’s actions, “[w]e
will uphold the jury verdict if a reasonable minded jury could have found the
defendant guilty beyond a reasonable doubt.” United States v. Smith, 91 F.3d 1199,
1200 (8th Cir. 1996). The Manns’ conversations indicated that they were clearly
aware of the pending detention hearing and search of Mann’s office when they agreed
to have Sangeeta remove certain documents and give them to friends. We find “the
jury could have reasonably inferred from this sequence of events that, by [ordering
Sangeeta to] remov[e] documents related to Sandip from the office shortly before the
search and by [ordering her to give them to] a trusted friend of the family to hold,” that
Mann corruptly conspired to and intended “to impair the availability of these
documents to the ongoing grand jury investigation.” United States v. Mann, 685 F.3d
714, 724 (8th Cir. 2012). Based on the evidence, we find that a reasonable juror could



                                          -46-
have concluded that Mann’s conduct was not innocent but instead that Mann
conspired to and did obstruct an official proceeding with consciousness of
wrongdoing.

       In addition to challenging the sufficiency of the evidence, Mann argues the Jury
Instructions on Counts 7 and 8 allowed Mann to be convicted of innocent conduct.
However, the instructions on both counts told the jury that it must find that Mann
acted corruptly, and the jury was instructed that “corruptly” means to act with
“consciousness of wrongdoing.” To support his argument, Mann cites Arthur
Andersen LLP v. United States, 544 U.S. 696 (2005), in which the Supreme Court
recognized that “‘persaud[ing]’ a person ‘with intent to . . . cause’ that person to
‘withhold’ testimony or documents from a Government proceeding or Government
official is not inherently malign.” Id. at 703-704. However, after Arthur Andersen,
we have found that when a defendant acts with “‘consciousness of wrongdoing’” in
concealing material, his conduct is not innocent. See Craft, 478 F.3d at 900 (citation
omitted). Accordingly, the jury was properly instructed, and Mann’s argument is
without merit.

      For these reasons, we find the evidence was sufficient to support convictions
for Counts 7 and 8.

       F. Variance and Constructive Amendment as to Evidence for Count 5

       Next, Mann argues the Government’s theory at trial as to Count 5 constructively
amended the indictment and that the evidence at trial constituted a material variance
from the evidence presented to the grand jury. Mann was convicted on Count 5 of
possessing an unregistered 7.62 by .39 caliber machinegun. Documents on file with
the ATF indicated that Mann had registered a 7.62 by .39 caliber machinegun bearing
serial number 1442, which he had obtained from Lloyd Hahn. The seized 7.62 by .39



                                         -47-
caliber machinegun, which Mann was convicted of possessing, contained the serial
number BM-034, and the number 1442 had been scratched into the gun. Mann
planned to defend the charge that he possessed an unregistered machinegun by
demonstrating that the BM-034 firearm was the same firearm that he had registered,
based on Lloyd Hahn’s pre-trial indications that he had manufactured the BM-034
machinegun. However, at trial Hahn testified that he had not manufactured the
firearm.

      Mann alleges this change in Hahn’s testimony worked a constitutional violation,
essentially arguing both a constructive amendment and material variance occurred.
We note that Mann did not preserve either his constructive amendment or variance
theory at trial, so our review is for plain error. See United States v. Gavin, 583 F.3d
542, 546-47 (8th Cir. 2009). Applying this standard of review, we find no variance
or constructive amendment occurred.

       The difference between a variance and a constructive amendment “is well
established, though at times difficult to apply.” United States v. Adams, 604 F.3d 596,
599 (8th Cir. 2010). “A constructive amendment . . . occurs when the essential
elements of the indicted offense are altered, either actually or in effect, after the grand
jury has issued the indictment.” United States v. Johnston, 353 F.3d 617, 623 (8th Cir.
2003) (per curiam). “‘A constructive amendment primarily affects the defendant’s
Fifth Amendment right to indictment by a grand jury . . . .’” United States v. Renner,
648 F.3d 680, 686 (8th Cir. 2011) (quoting Adams, 604 F.3d at 599). “‘[A] variance
occurs when the essential elements of the offense set forth in the indictment are left
unaltered but the evidence offered at trial proves facts materially different from those
alleged in the indictment.’” Gavin, 583 F.3d at 547 (citation omitted). “[A] variance
implicates the defendant’s Sixth Amendment right to notice of the nature of the charge
and is subject to harmless error analysis.” Renner, 648 F.3d at 685 (quoting Adams,
604 F.3d at 599).



                                           -48-
       To the extent that Mann argues that he was convicted of a different crime than
the crime for which the grand jury indicted him, Mann argues a constructive
amendment occurred. Count 5 of the second superseding indictment charged Mann
with violating 26 U.S.C. § 5861(d). The indictment listed the elements of the charge
as “knowingly possess[ing]” a “7.62 caliber machinegun, serial number BM-0834,
which was not registered to [Mann] in the National Firearms Registration and Transfer
Record.” Those were the same elements the Government sought to prove at trial and
the same elements on which the jury was instructed. See Jury Instructions 23 and 24.
Mann argues that the Government’s theory of the source of the gun changed from its
presentation to the grand jury and petit jury. A particular source of the gun was not
an “essential element” of the offense; thus, a change in theories between presentations
to the grand jury and the trial jury did not work a constructive amendment of the
indictment. See Johnston, 353 F.3d at 623.

       To the extent that Mann argues the evidence against him changed from the
indictment stage to the trial stage, he argues that a variance occurred. However, the
variance theory looks to whether the evidence at trial proves facts “‘materially
different from those alleged in the indictment.’” United States v. Buchanan, 574 F.3d
554, 564 (8th Cir. 2009) (citation omitted). The indictment alleged only that Mann
possessed a machinegun with the serial number BM-0834. It did not allege that Mann
obtained that gun from Hahn. Though Hahn testified before the grand jury that he
probably provided the gun to Mann, we look to the indictment rather than to the grand
jury testimony to determine whether a variance occurred. See Buchanan, 574 F.3d at
565. Here, the specific evidence presented at trial did not prove facts different from
those alleged in the indictment. Thus, no variance occurred.




                                         -49-
                                    IV. Post Trial

                                    A. Sentencing

       Mann contends the district court made four procedural errors in calculating his
Sentencing Guidelines range. See United States v. Cunningham, 593 F.3d 726, 730
(8th Cir. 2010) (indicating error in assessing sentencing enhancements is procedural
error). First, Mann argues that the district court erred in applying the cross-reference
for attempted murder contained in United States Sentencing Commission, Guidelines
Manual, §2A2.1. Second, Mann argues the district court erred in finding that Dr.
Pierce was an official victim as defined by Guidelines section 3A1.2. Next, Mann
argues the district court erred in applying a two-level enhancement for possessing
stolen firearms and in finding the grenades had an altered or obliterated serial number
pursuant to Guidelines section 2K2.1(b)(4). Finally, Mann argues the district court
erred in applying a two-level enhancement for obstruction of justice for directing the
assault of a federal inmate pursuant to Guidelines section 3C1.1. We will address each
argument in turn.

                           i. Bombing and Arson Charges

       The Sentencing Guidelines for crimes involving weapons of mass destruction
instruct the court to apply a cross-reference for attempted murder where the offense
was “tantamount to attempted murder.” U.S.S.G.§2M6.1(c)(2). The cross-reference,
found at section 2A2.1, sets a base level of 33 for any assault that would have
constituted first degree murder had the victim died as a result of the assault. U.S.S.G.
§2A2.1(a)(1). The district court applied this cross-reference to Mann. Mann argues
the district court erred in applying the cross-reference because the bombing was not
tantamount to attempted murder because there was no evidence that the bomb was
intended to kill Dr. Pierce. Mann relies on the testimony of a former arms dealer,



                                         -50-
Lloyd Hahn, who testified that MK3A2 grenades are designed to disable rather than
to kill.

       We review a district court’s factual findings for clear error. United States v.
Tunley, 664 F.3d 1260, 1262 (8th Cir. 2012). The sentencing court need only find
facts for sentencing purposes by a preponderance of the evidence. See id.

       At trial, Stephen Shelley, one of the Government’s explosives experts, testified
that an MK3A2 is designed to cause casualties. Additionally, Dean Fitzgerald, a bomb
technician, testified that the type of grenade used in the bombing is “almost
guaranteed” to kill any individual within a closed-in area where it explodes.
Additionally, the Government put on ample evidence of the life-threatening nature of
Dr. Pierce’s injuries and the numerous and extensive surgeries that were necessary to
sustain his life. Evidence of the nature of a bombing can demonstrate an intent to kill.
Cf. United States v. Warbonnet, 750 F.2d 698, 700 (8th Cir. 1984) (per curiam). We
find that it was reasonable for the district court to determine that the explosion was
intended to kill Dr. Pierce and that it was tantamount to attempted first-degree murder.
Thus, the court did not err in applying the cross-reference.

      Mann was also given a six-level sentencing enhancement for the bombing and
arson charges because Dr. Pierce was an official victim under Guidelines section
3A1.2(a). The enhancement is applied where a victim is “a government officer or
employee.” U.S.S.G. §3A1.2(a). Mann contends Dr. Pierce was a private individual
and not an official victim because the Board is not funded by the State of Arkansas.
Because this is a challenge to the district court’s application of law, our review is de
novo. United States v. Bahena, 223 F.3d 797, 804 (8th Cir. 2000).

      Though the Board receives no money from the State, it is tasked with
credentialing medical professionals to practice in Arkansas and is tasked with



                                         -51-
disciplining those doctors. The protection of public health through the police power
is a traditional state function. See Women’s Kan. City St. Andrew Soc. v. Kansas
City, 58 F.2d 593, 599 (8th Cir. 1932) (stating the police power was originally
“exercised in the interest of public health, safety, peace, and morals”). The Board
carries out that function by supervising the State’s medical community, which is
essential to assuring the health of the citizenry of the State of Arkansas. The powers
of the Board are assigned to it by the State’s legislature. See Ark. Code Ann. § 4-29-
309. Though the Board is not financed by the State, it carries out the work of the
State; thus, its members are officials of the State government. We have held that the
official-victim enhancement applies to state government officials. United States v.
Stewart, 20 F.3d 911, 918 (8th Cir. 1994). The evidence indicated that Dr. Pierce was
targeted for his role on the Board. As such, Dr. Pierce was an official victim under the
Guidelines, and we find the district court did not err in assessing this enhancement.

       Finally, Mann was given a two-level sentencing enhancement for the bombing
and arson charges based on directing the assault of a federal inmate under Guidelines
section 3C1.1 for obstruction of justice.16 Mann argues the district court erred in
assessing this enhancement. The only reference in the record to Mann ordering the
assault of a federal inmate is contained in a bench conference that occurred at trial
between the district judge and the attorneys. The Government’s attorney stated that
an inmate had been assaulted by an associate of Mann, and the judge stated that he was
aware that an assault had been threatened but was unsure of whether the assault had
occurred. Mann objected to the Presentence Investigation Report (PSR)’s inclusion
of an enhancement based on the assault prior to the sentencing hearing. No evidence


      16
        The Government encourages this Court to find the enhancement for
obstruction was appropriate based on the evidence that Mann obstructed justice by
intimidating witnesses and destroying documents regarding the grand jury
investigation. However, the district court clearly entered the enhancement based on
the alleged assault of an inmate.


                                         -52-
was admitted at the hearing or at trial indicating whether an assault even occurred or
whether it was ordered by Mann.

       “The PSR is not evidence. If the defendant objects to any of the factual
allegations contained therein on an issue on which the government has the burden of
proof, such as . . . enhancing factors, the government must present evidence at the
sentencing hearing to prove the existence of the disputed facts.” United States v. Poor
Bear, 359 F.3d 1038, 1041 (8th Cir. 2004) (internal citation omitted). The
Government submitted no evidence to support the court’s finding that Mann ordered
an assault on an inmate. Thus, the two-level enhancement based on that assault was
improperly entered, and we remand Counts 1 and 2 for resentencing.

                                ii. Firearms Charges

       Next, Mann contends the district court erred in assessing an enhancement under
Guidelines section 2K2.1(b)(4) for possession of grenades containing an altered serial
number. We agree with Mann that the court erred in this assessment. The
Government’s witness Stephen Shelley testified on cross examination that grenades
do not have serial numbers. Instead, the grenades have lot numbers that identify them
as part of a group, rather than individually. The testimony indicated that many of the
lot numbers and manufacturing dates had been removed from the grenades found near
Mann’s property. The sentencing enhancement applies only to firearms which once
possessed a serial number which has been removed; it does not apply to firearms that
were never equipped with a serial number. United States v. Bakhtiari, 913 F.2d 1053,
1063 (2d Cir. 1990). Accordingly, the enhancement was applied in error.17

      17
        The enhancement for obliterated serial numbers increased Mann’s offense
level by four levels, which would have resulted in a sentencing level of 32 for the
firearms group. However, the Guidelines cap the sentencing level for firearms
offenses at 29, unless the offense involved a rocket or a missile. See U.S.S.G.


                                         -53-
       The district court also erred in assessing an enhancement for stolen firearms
under section 2K2.1(b)(4) based on the 98 40mm grenades. No evidence was
presented that indicated the 98 grenades had been stolen. Instead, two of the
Government’s witnesses testified that in prior, unrelated incidents grenades
somewhere were stolen by someone. First, Steven Shelley testified that he had been
involved in many ATF investigations where military grenades were stolen and wound
up in civilian hands. Second, Thao Dinh Le, an arms collector, testified that he
purchased grenades that were rumored to have been stolen. That was the entirety of
the evidence indicating that the grenades might have been stolen. Lloyd Hahn testified
that the grenades he sold Mann were purchased from Tom Owsley, who had purchased
them from the National Guard, indicating they had not been stolen. The Government
conceded prior to sentencing that it had not proven the grenades were stolen;
nevertheless, the district court applied the enhancement. The application of the
enhancement was not harmless, and we must remand for resentencing as to the
firearms offenses.18




§2K2.1(b)(4). Accordingly, Mann’s sentencing level for the firearms offenses was
capped at 29, before the enhancement for obstruction of justice was applied. Because
Mann was erroneously assessed a four-level enhancement and his sentencing level
exceeded the cap by only three levels, this enhancement was not harmless because it
increased Mann’s sentencing level for the firearms group by at least one level.
      18
        At the time of sentencing, the enhancement was harmless because it was a
two-level enhancement, and Mann’s offense level was three steps higher than the cap
of 29. However, when the four-level enhancement for removed serial numbers is
removed at resentencing, the addition of the two-level enhancement for stolen
firearms will no longer be harmless. For that reason, we remand for resentencing as
to Counts 3 and 5 or 6.


                                        -54-
                                 B. Cumulative Error

       Mann argues that we should reverse based on cumulative error. “‘We may
reverse where the case as a whole presents an image of unfairness that has resulted in
the deprivation of a defendant’s constitutional rights, even though none of the claimed
errors is itself sufficient to require reversal.’” United States v. Anwar, 428 F.3d 1102,
1115 (8th Cir. 2005) (quoting United States v. Riddle, 193 F.3d 995, 998 (8th Cir.
1999)). “This court will not reverse based upon the cumulative effect of errors unless
there is substantial prejudice to the defendant.” Id. After reviewing the record, we
reject Mann’s argument. The cumulative effect of the claimed errors did not deny
Mann a fair trial.

                                    V. Conclusion

      We affirm Mann’s convictions as to Counts 1, 2, 3, 7, and 8. We remand
Counts 5 and 6 with instructions to set aside one of the convictions. We affirm the
sentence as to Counts 7 and 8 but remand Counts 1, 2, 3, and 5 or 6 for resentencing.

SMITH, Circuit Judge, concurring in part and dissenting in part.

      I respectfully dissent from the majority's affirmance of Mann's conviction on
Count II because the government failed to adduce sufficient evidence that Dr. Pierce's
vehicle was used in interstate commerce or affected interstate commerce. I otherwise
concur in the majority opinion.

      The government failed to introduce sufficient evidence to convict Mann of
maliciously damaging a vehicle used in interstate commerce, in violation of 18 U.S.C.
§ 844(i). To convict Mann of maliciously damaging Dr. Pierce's vehicle, the
government needed to prove that Mann (1) damaged or destroyed a vehicle by means



                                          -55-
of an explosive, (2) he did so maliciously, and (3) the vehicle was used in interstate
commerce or an activity affecting interstate commerce. See 18 U.S.C. § 844(i). Mann
argues that the government introduced insufficient evidence to show that Dr. Pierce
used his vehicle in interstate commerce or in an activity affecting interstate commerce.
In response, the government argues that Dr. Pierce's driving his vehicle from his home
in West Memphis, Arkansas, to his work place in Little Rock, Arkansas, affected
interstate commerce.

        To "be 'used' in an activity affecting commerce," the vehicle must be "activel[y]
employ[ed] for commercial purposes, and not [have] merely a passive, passing, or past
connection to commerce." Jones, 529 U.S. at 855. In Jones, the Supreme Court
answered whether "property occupied and used by its owner not for any commercial
venture, but as a private residence. . . .[i]s . . . , in the words of § 844(i), used in . . .
any activity affecting . . . commerce." 529 U.S. at 854 (quotation omitted) (fourth and
fifth alteration in original). In answering this question, the Court noted that "[t]he key
word is 'used.' Congress did not define the crime described in § 844(i) as the explosion
of a building whose damage or destruction might affect interstate commerce . . . ." Id.
(quotation and citation omitted). Instead, "Congress required that the damaged or
destroyed property must itself have been used in commerce or in an activity affecting
commerce." Id. (quotation, alteration, and citation omitted). Similarly, in this case,
"[t]he proper inquiry . . . is into the function of the [vehicle] itself, and then a
determination of whether that function affects interstate commerce." Id. (quotation,
citation, and footnote omitted). While

       § 844(i) excludes no particular type of [vehicle] (it covers "any
       [vehicle]")[,] the provision . . . require[s] that the [vehicle] be 'used' in an
       activity affecting commerce. That qualification is most sensibly read to
       mean active employment for commercial purposes, and not merely a
       passive, passing, or past connection to commerce. Although variously




                                            -56-
      defined, the word "use," in legislation as in conversation, ordinarily
      signifies active employment.

Id. at 855 (quotations and citations omitted).

       In a factually analogous case, the Tenth Circuit found a similar argument to that
of the government's insufficient to satisfy the interstate commerce requirement of
§ 844(i). In United States v. Monholland, defendants conspired to place an explosive
device on an Oklahoma state court judge's vehicle. 607 F.2d at 1312. The government
alleged that the defendants violated § 844(i). Regarding the interstate commerce prong
of § 844(i), the government theorized "that the vehicle was used in interstate
commerce or in an activity affecting interstate commerce. . . . [because] the judge's
pickup [w]as a vehicle which [wa]s regularly used in and as a part of activity affecting
interstate commerce." Id. at 1314. The Tenth Circuit rejected the government's
argument and found that the vehicle was not "used" in interstate commerce, stating:

      The vehicle in question was not even used on official business. It was
      used to transfer the judge to and from work. The important problem here
      is that movement to and from work is an activity which ordinarily has an
      existence independent from the work. It does not blend into and become
      a part of the career. If a connection is to be established between the
      vehicle and the work, it must be shown that there exists a nexus between
      the two activities. Here the activities are independent.

             The evidence here is that the function of the truck is to get the
      judge back and forth, and if the truck fails he would find some other
      means to accomplish the trip. We say, then, that the truck is wholly
      immaterial as far as any commerce is concerned even if we assume that
      there is a commerce quality about what the judge does after he gets to
      court. . . . Since [the vehicle] is divorced from the activity carried on in
      court, there is no legal relationship whereby one can say that the truck
      affects commerce. . . . Our view has to be that, in law, the activity of the



                                         -57-
      judge at the courthouse is remote from the use of the truck. The truck
      does not enter into the administration of justice in the slightest degree.

Id. at 1316.

       Similarly, here, the Board's ability to affect interstate commerce does not
convert Dr. Pierce's personal vehicle into an item "used" in interstate commerce.19
Section 844(i) requires this court to look at "the function of the [vehicle] itself," not
Dr. Pierce's role as a member of the Board. Jones, 529 U.S. at 854. The government's
argument focuses on the Board's effect on interstate commerce; yet, it ignores that the
object of the crime for purposes of § 844(i) is the vehicle. Thus, the vehicle itself, not
the Board's activities, has to affect interstate commerce. In my view, "[w]ere we to
adopt the Government's expansive interpretation of § 844(i), hardly a [vehicle] in the
land would fall outside the federal statute's domain." Id. at 857. Under the
government's view, a person who regularly drives his or her own private vehicle
intrastate to any company or nonprofit organization would satisfy the "used"
requirement of § 844(i).20 Thus, "[I] conclude that § 844(i) is not soundly read to make
virtually every arson in the country a federal offense" and would therefore "hold that
the provision covers only property currently used in commerce or in an activity
affecting commerce." Id. at 859.


      19
         The majority correctly notes the distinction between 18 U.S.C. § 2332a and
18 U.S.C. § 844(i): "Proving a violation of Count 2 requires proof of an element
required in Count 1: specifically, in Count 2, the vehicle itself must be used in
interstate commerce, rather than the lesser requirement that the offense affect
interstate commerce found in Count 1."
      20
        This is especially true here, where the not-for-profit Board focuses on
licensing of physicians only in Arkansas. Under the government's reasoning, any
private vehicle used to transport a worker to a commercial enterprise would
necessarily be included within § 844(i)'s reach.


                                          -58-
       The majority also notes that "[t]he vehicle's function was not only to transport
Pierce to Board meetings and other trips made on behalf of the Board, but it was also
used to transport Board files to the meetings, instead of shipping them." It contends
that Dr. Pierce's use of his personal vehicle to attend Board meetings is analogous to
the victim's use of his vehicle as a traveling union organizer in Michaels, 726 F.2d
1307. But that case is distinguishable. In finding that the government satisfied the
jurisdictional requirement in Michaels, we said:

             The government's uncontradicted evidence sufficiently
      demonstrates that the Cadillac automobile was used by [the victim] to
      conduct union business. [A witness], testified that [the victim] was
      employed by the union as a field organizer. In this capacity, [the victim]
      traveled to various job sites for the purpose of enrolling new members in
      the union and collecting money owed the union by current members. The
      union paid [the victim] a $200 per month allowance as reimbursement for
      using his personal automobile to conduct union business. Clearly, use of
      the automobile was an integral and necessary part of [the victim's] job
      assignment and was not merely a means of traveling to and from work.

Id. at 1310 (citation omitted) (emphasis added). In Michaels, it was a part of the
victim's duties to "travel[] to various job sites for the purpose of enrolling new
members in the union and collecting money owed the union by current members." Id.
In contrast, here, Dr. Pierce's vehicle was not an "integral and necessary part of [his]
job assignment." Id. Rather it was "merely a means of traveling to and from [Board
meetings]." Id. The Board's reimbursement of Dr. Pierce for his intrastate travel and
his transport of files does not convert Dr. Pierce's personal vehicle into one that he
"used in commerce or in an activity affecting commerce." Jones, 529 U.S. at 854




                                         -59-
(quotation and citation omitted). Dr. Pierce's attendance at Board meetings—not his
means of transportation—was an integral part of his work.21

      For the forgoing reasons, I respectfully dissent in part.
                      ______________________________




      21
        In Jones, the Court rejected a similar argument by the government when it
argued that a private residence fell within § 844(i)'s jurisdiction because it received
natural gas from outside of the state. 529 U.S. at 855–56.


                                         -60-
