U.S. v. Arena

Decision Date07 June 1999
Docket NumberNos. 97-1081,s. 97-1081
Citation180 F.3d 380
Parties, UNITED STATES of America, Appellee, v. John ARENA and Michelle Wentworth, Defendants-Appellants. (L), 97-1082(C).
CourtU.S. Court of Appeals — Second Circuit

JOHN G. DUNCAN, Assistant United States Attorney, Syracuse, New York (Thomas J. Maroney, United States Attorney for the Northern District of New York, Syracuse, New York, on the brief), for Appellee.

STASIA ZOLADZ VOGEL, Derby, New York, for Defendant-Appelant John Arena.

CARL F. GUY, Syracuse, New York, for Defendant-Appellant Michelle Wentworth.

VINCENT P. McCARTHY, New Milford, Connecticut, for Amicus Curiae American Center for Law and Justice, in support of Defendants-Appellants.

Before: KEARSE and STRAUB, Circuit Judges, and MURTHA, Chief District Judge *.

KEARSE, Circuit Judge:

Defendants John Arena and Michelle Wentworth appeal from judgments entered in the United States District Court for the Northern District of New York after a jury trial convicting each on two counts of extortion and one count of conspiracy to commit extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951 (the "Act"), on account of their attacks on medical facilities that provided reproductive health services. Arena and Wentworth were sentenced principally to 41 and 37 months' imprisonment, respectively, to be followed by three years of supervised release, and were ordered jointly and severally to pay restitution in the amount of $52,062.11. On appeal, they contend principally that the Hobbs Act was not applicable because the government failed to prove (a) that their actions affected interstate commerce and (b) that they thereby obtained property through the wrongful use of violence, force, or fear. For the reasons that follow, we reject all of their contentions and affirm.

I. BACKGROUND

The present prosecution arises out of two instances in which butyric acid was poured in the premises of upstate New York medical facilities that provided a variety of reproductive health services, including abortions. Butyric acid is a hazardous liquid that emits a powerful, rancid odor. Exposure to its fumes can cause irritation to the eyes and respiratory tract; ingestion of the liquid can cause burns to the gastrointestinal tract; and contact with the liquid can cause severe burns to the skin and eyes. Arena and Wentworth, longtime anti-abortion activists, were tried and convicted in a New York state court on a variety of charges in connection with those incidents. The present federal prosecution followed.

At the trial in the present case, the government's evidence was presented principally through the testimony of victims of the attacks, law enforcement and public health officials, and cooperating witness Michelle Campbell, the person who poured the butyric acid in the medical facilities. Taken in the light most favorable to the government, the evidence at the federal trial revealed the following.

A. The Butyric Acid Attacks

In the early 1990s, Wentworth was the chairperson of the Auburn Right to Life Movement, based in Auburn, New York, and was an active member of the national anti-abortion protest group called Operation Rescue. Arena was a member of Operation Rescue and of the Central New York Right to Life Federation, as well as of another anti-abortion group known as the Lambs of Christ. Campbell was Wentworth's daughter.

In early 1994, Wentworth informed Campbell that certain of Wentworth's associates in the anti-abortion protest movement were interested in having butyric acid infused in various medical facilities that provided abortions. In March 1994, Wentworth told Campbell that Arena was willing to pay to have the acid poured inside such facilities, at the rate of $100 per facility. After Campbell indicated her interest, Wentworth arranged a meeting with Arena.

1. The Events of April 1994

Arena, Wentworth, and Campbell met on April 13, 1994, at the home of Wentworth and Campbell in Auburn. Arena confirmed that he was willing to pay Campbell to pour butyric acid in targeted clinics, and he proposed that she start with the nearby Planned Parenthood Center of Syracuse ("Planned Parenthood"). After Campbell agreed, Arena provided her with latex gloves, mouthwash that he claimed would eliminate any traces of odor that might be left on Campbell's hands after pouring the acid, and a large bottle of butyric acid. Arena instructed Campbell to pour the acid inside Planned Parenthood during business hours, so that the odor would force the facility to close; Wentworth suggested that the acid be poured into the ventilation system so that the odor would permeate the facility and force it to remain closed for several days.

The three arranged that Campbell, after pouring the acid, would call Wentworth, who would then inform Arena as to Campbell's success; Arena would then send them a check for $100. Wentworth transferred part of the acid from the large bottle brought by Arena into a smaller, 16-ounce bottle and gave the latter to Campbell. Wentworth stored the remaining acid in her garage.

That night, Campbell went to Syracuse and stayed in a motel. On the morning of April 14, Wentworth paged her at the motel to make sure she still intended to carry out the attack, and Campbell confirmed that she did. Campbell--carrying the butyric acid and other supplies in her handbag--then went to Planned Parenthood and indicated to the receptionist that she wished to purchase condoms. After the receptionist directed Campbell to a location in the clinic where condoms were sold, Campbell entered a restroom, where she opened the bottle Wentworth had given her and poured its contents onto a wall and into a heating duct.

Campbell then set the restroom door to lock automatically upon closing, left the restroom, and exited the building. She discarded her handbag and its contents--including the bottle that had contained the acid--in a trash bin and called Wentworth to report. Wentworth immediately relayed word to Arena that the acid had been poured. Two days later, a check for $100, signed by Arena, arrived at the home of Wentworth and Campbell.

Meanwhile, shortly after Campbell left Planned Parenthood, a foul smell spread throughout the facility. Campbell herself described the smell of butyric acid as "horrible" and "disgusting." (Trial Transcript ("Tr.") 541.) The odor was described by Planned Parenthood employees as "incredibly overpowering" (Tr. 294), "noxious" (Tr. 267), "incapacitating" (Tr. 273), and akin to "vomit" (Tr. 261). Planned Parenthood Executive Director Jeffrey Gilbert immediately suspected butyric acid, as he was aware that other Planned Parenthood affiliates had been the targets of similar attacks and as employees of those affiliates had described the acid's odor to him. Indeed, Gilbert testified that he had taken certain steps to prepare for a possible butyric acid attack, including locating an environmental cleanup firm. The odor became progressively more intense, and within some 15 minutes the fire department evacuated the facility of the approximately 30 employees and 10 patients then present. The fire department conducted chemical testing and identified the source of the odor as butyric acid.

As a result of the release of butyric acid in its facility, Planned Parenthood was forced to close for the remainder of the day and to initiate a long and costly cleanup effort. The clinic attempted to resume partial operations the next day, but closed again when the continued noxious odor caused Gilbert to fear for the safety of patients and staff. Resumption of partial operations was delayed for several days; the environmental contractor remained on the premises for more than a week, cleaning all exposed surfaces and removing, inter alia, ventilation ducts, flooring, bathroom fixtures, ceiling tiles, draperies, and carpeting, all of which had been contaminated by exposure to the butyric acid and its fumes. Normal operations at the clinic were not resumed until some 10 days after the attack.

The effects of the acid attack were felt well beyond Planned Parenthood's physical plant. A number of the persons evacuated experienced headaches, nausea, and other physical effects from exposure to fumes. A professional counselor was brought in to meet with clinic personnel, who reported feelings of anger, fear, dread, and vulnerability. Numerous patients informed Planned Parenthood that they were afraid to visit that facility because of the acid attack; they requested possession of their medical records and indicated that they would seek medical services elsewhere. In light of the fears of patients and staff, Planned Parenthood made several changes to its facilities and security procedures, including hiring a full-time armed guard.

2. The Events of May 1994

Following the butyric acid attack on the Planned Parenthood facility, Wentworth and Campbell discussed plans for similar attacks on the facilities of other upstate New York abortion providers. In May 1994, Campbell agreed to return to the Syracuse area to make such an attack on the private offices of Dr. Jack E. Yoffa, a provider of abortion services who had been the target of numerous anti-abortion protests attended by Arena and Wentworth. Wentworth provided Campbell with a car, a hand-drawn map, and pictures of Yoffa's building, as well as the butyric acid and other supplies needed for the attack.

On May 19, Campbell arrived at Yoffa's offices and asked to use a restroom; she was admitted into a secured area, separated from the reception area by a locked door. She eventually found a restroom but was unable to locate a suitable vent; she therefore poured the butyric acid on the floor.

Campbell left the facility and, after discarding her latex gloves, the empty bottle, and a plastic bag in a nearby wooded area, returned to Auburn. She described the events to Wentworth, who relayed the information to Arena. Arena again sent a check, this time in...

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