U.S. v. Grimes

Decision Date08 June 1998
Docket NumberNo. 96-2916,96-2916
Citation142 F.3d 1342
Parties11 Fla. L. Weekly Fed. C 1458 UNITED STATES of America, Plaintiff-Appellee, v. James Arthur GRIMES, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

William M. Kent, Jacksonville, FL, for Defendant-Appellant.

Charles L. Truncale, Susan Humes Raab, Asst. U.S. Attys., Charles Wilson, U.S. Atty., Jacksonville, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before ANDERSON and BLACK, Circuit Judges, and HOEVELER *, Senior District Judge.

BLACK, Circuit Judge:

On March 18, 1996, a jury convicted Appellant James Arthur Grimes of knowingly and maliciously damaging a building used in or affecting interstate commerce by means of explosive, in violation of 18 U.S.C. § 844(i). The judge sentenced Grimes to life imprisonment. Grimes appeals several issues arising from the investigation that resulted in the charge, his trial, and his sentencing. We hold that the district court did not err by denying Grimes' motion to suppress and that there was no reversible error in Grimes' trial or sentencing procedures. We therefore affirm Grimes' conviction and sentence.

I. BACKGROUND

Appellant Grimes worked as a maintenance supervisor for Cedar Cove Apartments in Jacksonville, Florida, in the late 1980s. The manager of Cedar Cove, Kathy Todaro, eventually fired Grimes saying that (1) he had been unresponsive to pages; (2) he was operating a business on company time using company materials; and (3) there was a discrepancy in his overtime hours. Grimes stated that he knew many people wanted him out of the company, but suggested that Todaro wanted him out so that the assistant maintenance supervisor could have the job.

After he was fired, Grimes told a friend that he was going to "blow up the bitch" who fired him. He said he could tamper with the boiler in the laundry room and blow up the whole crew. He also suggested there were other ways he could harm the complex.

On March 19, 1990, Sherwin Douglas Finlay observed a package on the floor outside of his apartment (# 101) at Cedar Cove. 1 The package was marked "Ballast." When Finlay picked up the package, it exploded. Finlay suffered severe injuries and died as a result of the blast. The apartment complex also sustained serious damage from the explosion.

As neighbors moved toward the explosion, two of them observed a man with a smirk on his face walking casually away from the scene. The two neighbors later picked Grimes' picture from a photo line-up and identified him in court as the man they saw walk away from the bombing.

Grimes later began to work for Kenneth Pender as a "gofer." When Grimes and Pender encountered difficulty repairing the electrical system at a hunting lodge, Grimes began talking about electrical switches and timers. Grimes described the button on a refrigerator as working "like the button on the steel plate at the bombing at Cedar Cove." Grimes also had crying spells during which he told Pender, "I called, I told the bitch I was going to blow up the place" and "it wasn't meant for the old man. It wasn't even the maintenance man that took my place."

On October 11, 1994, Pender met with an investigator from the state attorney's office and reported that Grimes had divulged many details regarding the Cedar Cove bombing. Pender agreed to cooperate with investigators 2 and to tape future conversations with Grimes.

On December 13, 1994, Grimes was arrested on worthless check charges. The following day, counsel was appointed and Grimes signed a claim of rights form. 3 Copies were placed in the court and jail files and a copy was served on both the state attorney's office and the Jacksonville Sheriff's Office (JSO).

While in jail, Grimes told a fellow inmate, "I placed the bomb there, but I didn't intend--the man was an accident. I didn't intend, you know, to hurt nobody, just to be property damage and scare some of the tenants and cause them problems and money." Before his arrest, Grimes talked about Cedar Cove with a friend, telling him that "the Lord would get him for it, and he shouldn't have done it."

Grimes began calling Pender from jail. Pender accepted approximately 70 collect calls from Grimes and recorded many of those conversations. Pender also visited Grimes at the jail. On January 22 or 23, 1995, investigators told Pender to solicit incriminating statements from Grimes. During a visit to the jail, Pender, at the direction of investigators, told Grimes that he knew some people who were involved in illegal activities and were interested in hiring someone with expertise in burning and bombing. Thereafter, Grimes and Pender talked many times about Grimes' interest in working for these people and his ability and experience regarding arson and bombing.

On February 8, 1995, Grimes pled guilty to the worthless check charges and was released from jail. Pender, at Grimes' request and on direction from investigators, picked Grimes up from jail. Grimes and Pender drove to a hotel in St. Augustine to meet with the people who were interested in hiring someone experienced with bombs. This, of course, was a ruse and the individuals waiting for Grimes and Pender were actually undercover investigators. Pender told Grimes that he could change his mind and Pender would take him to their hunting camp. He told Grimes that he did not have to meet with the business man "Frank," but Grimes said that he wanted to meet Frank. During the meeting, Grimes divulged many details about the Cedar Cove bomb.

After the meeting, Grimes and Frank got in a car and headed back towards Jacksonville. On the way, a JSO officer stopped them, appeared to take Frank into custody, and asked Grimes to come to the police station. At the police station, officers arrested Grimes on a state charge of arson of his mother's home. 4

On April 5, 1995, a federal grand jury indicted Grimes for knowingly and maliciously damaging a building used in or affecting interstate commerce by means of an explosive. The trial began on March 7, 1996. Grimes was convicted by the jury and sentenced to life imprisonment by the trial judge.

II. DISCUSSION

On appeal, Grimes makes the following arguments: (1) 18 U.S.C. § 844(i) is unconstitutional both facially and as applied; (2) Grimes was improperly denied benefits normally afforded to a person accused of a capital offense; (3) the district court erred by failing to suppress certain evidence obtained in violation of Grimes' Fifth and Sixth Amendment rights; and (4) application of amended limitations and sentencing statutes violated the Ex Post Facto Clause of the Constitution. 5

A. Constitutionality of § 844(i)

Grimes argues that § 844(i) is unconstitutional both facially and as applied to him in this case. The argument is based on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), in which the Supreme Court found that the Gun Free School Zones Act was unconstitutional because it exceeded Congress's commerce clause authority.

The argument that § 844(i) is facially unconstitutional is without merit. Every circuit examining the issue after Lopez has determined that Congress did not exceed its commerce clause authority when it enacted § 844(i). See United States v. Gaydos, 108 F.3d 505, 508 (3d Cir.1997); United States v. Corona, 108 F.3d 565, 570 (5th Cir.1997); United States v. McMasters, 90 F.3d 1394, 1398 (8th Cir.1996); United States v. DiSanto, 86 F.3d 1238, 1245-46 (1st Cir.1996); United States v. Sherlin, 67 F.3d 1208, 1213-14 (6th Cir.1995). We also hold that § 844(i) is constitutional on its face.

Grimes also argues that, even if § 844(i) is constitutional on its face, the Government did not show that the apartment building damaged by the explosion in this case had the requisite interstate commerce nexus. We hold that the Government demonstrated the necessary interstate commerce connection.

In Russell v. United States, 471 U.S. 858, 862, 105 S.Ct. 2455, 2457, 85 L.Ed.2d 829 (1985), the Supreme Court found that § 844(i) "only applies to property that is 'used' in an 'activity' that affects commerce. The rental of real estate is unquestionably such an activity." In Russell, the Supreme Court upheld the defendant's § 844(i) conviction, in the face of a commerce clause challenge, for attempting to burn a two-unit apartment building. The Court noted that "the legislative history suggests that Congress at least intended to protect all business property, as well as some additional property that might not fit that description, but perhaps not every private home." Id. Circuit courts examining Russell, including this one, have agreed that Russell remains authoritative precedent even after Lopez. See Belflower v. United States, 129 F.3d 1459, 1462 (11th Cir.1997); United States v. Chowdhury, 118 F.3d 742, 743 (11th Cir.1997); United States v. Tocco, 135 F.3d 116, 124 (2d Cir.1998), cert. denied, --- U.S. ----, 118 S.Ct. 1581, 140 L.Ed.2d 795 (1998); United States v. Nguyen, 117 F.3d 796, 798 (5th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 455, 139 L.Ed.2d 389 (1997); United States v. Gaydos, 108 F.3d 505, 508 (3d Cir.1997); United States v. DiSanto, 86 F.3d 1238, 1245 (1st Cir.1996). The apartment building damaged in this case satisfies the interstate commerce nexus of § 844(i) under the Russell standard. No constitutional violation results from the application of § 844(i) to Grimes here.

B. Benefits Afforded to a Capital Defendant

Grimes argues that he should have received all of the procedural benefits afforded to a person in a capital case 6 even though the Government stated, on the record prior to trial, that it would not seek the death penalty in this case. This issue is controlled by binding precedent 7 which is in accord with a majority of other circuits. See United States v. Kaiser, 545 F.2d 467, 475 (5th Cir.1977); United States v. Crowell, 498 F.2d 324, 325 (5th Cir.1974); United...

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