U.S. v. Grossman, s. 77-2565

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before RUSSELL, Circuit Judge, FIELD, Senior Circuit Judge, and WIDENER; FIELD
• Citation: 608 F.2d 534
• Parties: UNITED STATES of America, Appellee, v. Irwin I. GROSSMAN, Appellant. UNITED STATES of America, Appellee, v. Otis Randolph YOUNG, Appellant.
• Docket Number: Nos. 77-2565,77-2566,s. 77-2565
• Decision Date: 26 October 1979

Page 534

608 F.2d 534 54 A.L.R.Fed. 747 UNITED STATES of America, Appellee,
v.
Irwin I. GROSSMAN, Appellant.
UNITED STATES of America, Appellee,
v.
Otis Randolph YOUNG, Appellant. Nos. 77-2565, 77-2566. United States Court of Appeals,
Fourth Circuit. Argued July 13, 1979.
Decided Oct. 26, 1979.

Page 535

Robert A. Shupack, North Miami Beach, Fla., William S. Rose, Jr., Charlotte, N. C. (Kathryn K. Hatfield, Greensboro, N. C., on brief), for appellants.

Phillip G. Kelley, Asst. U. S. Atty., Charlotte, N. C. (Harold M. Edwards, U. S. Atty., Asheville, N. C., and Wayne C. Alexander, Asst. U. S. Atty., Charlotte, N. C., on brief), for appellee.

Before RUSSELL, Circuit Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.

FIELD, Senior Circuit Judge:

Irwin I. Grossman and Otis Randolph Young were charged with conspiracy under 18 U.S.C. § 371 to maliciously damage and destroy by means of an explosive device a Link-Belt LS-4000 hydraulic excavator (backhoe), used in an activity affecting interstate commerce, in violation of 18 U.S.C. § 844(i). ¹

Grossman moved to dismiss the indictment for lack of jurisdiction of the federal district court, alleging that the destroyed backhoe was not being used in interstate commerce. ² By stipulation and evidence introduced by the Government it was established that the backhoe had been manufactured in Iowa and was sold and shipped to a Virginia equipment company in March, 1971. In October, 1972, the backhoe was acquired by a Virginia construction company which in March of 1974 sold and shipped the backhoe to an individual in North Carolina doing business as Gilliam Construction Company of Greensboro, North Carolina. The latter purchase was financed by ITT Industrial Credit Company, a national lending institution doing business in several states. When Gilliam went into bankruptcy, the backhoe was repossessed by ITT, and in March, 1976, Ernest W. Miller, guarantor of the Gilliam loan, acquired the backhoe and refinanced its purchase with ITT. The backhoe was insured by an insurance company doing business in states other than North Carolina and headquartered in Virginia. Although Miller did not use the backhoe in his business, he held it for sale to "anybody, anywhere," and advertised it for sale in two issues of Rock and Dirt, a trade newspaper published in Tennessee. After its destruction in October of 1976, Miller, or his designee, was paid the insurance proceeds to cover the loss of the backhoe. Based on these facts the motion to dismiss was denied by the district court.

Page 536

Grossman and Young entered pleas of Nolo contendere and guilty, respectively, to the one-count indictment of conspiracy. Both pleas were determined to be voluntary and upon a factual basis pursuant to Rule 11 of the Federal Rules of Criminal Procedure and were, accordingly, accepted by the Court. Each defendant was given a probationary sentence and fined.

Upon appeal, the defendants contend that their convictions are void for lack of jurisdiction since the backhoe which they conspired to destroy was not "used in interstate * * * commerce or in any activity affecting interstate * * * commerce" as required by 18 U.S.C. § 844(i). Specifically, they argue that §...