U.S. v. McVeigh, Criminal Action No. 96-CR-68-M.

• Citation: 940 F.Supp. 1571
• Decision Date: 09 September 1996
• Docket Number: Criminal Action No. 96-CR-68-M.
• Parties: UNITED STATES of America, Plaintiff, v. Timothy James McVEIGH and Terry Lynn Nichols, Defendants.
• Court: U.S. District Court — District of Colorado

940 F.Supp. 1571

UNITED STATES of America, Plaintiff, v. Timothy James McVEIGH and Terry Lynn Nichols, Defendants.

Criminal Action No. 96-CR-68-M.

United States District Court, D. Colorado.

September 9, 1996.

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COPYRIGHT MATERIAL OMITTED

Patrick M. Ryan, U.S. Attorney for the Western District of Oklahoma, Oklahoma City, OK, Joseph Hartzler, Special Assistant U.S. Attorney, Assigned from S.D. Illinois, Denver, CO, for plaintiff.

Stephen Jones, Richard H. Burr, III, Robert Nigh, Jr., Jones, Wyatt & Roberts, Enid, OK, Jeralyn E. Merritt, Denver, CO, for defendant McVeigh.

Michael Tigar, Ronald G. Woods, N. Reid Neureiter, Denver, CO, for defendant Nichols.

MEMORANDUM OPINION AND ORDER

MATSCH, Chief Judge.

This memorandum opinion determines the issues raised and discussed in the following pleadings:

Docket entry 379 Motion to Dismiss Counts One and Two for Failure to State an Offense and Incorporated Memo of Points and Authorities; Oral Argument Requested [filed by Nichols]

Docket entry 380 Motion to Dismiss Counts One and Two for Unconstitutionality of 18 U.S.C. § 2332a, subsection 2 — Commerce Clause and Incorporated Memo of Points and Authorities; Oral Argument Requested [filed by Nichols]

Docket entry 381 Motion to Dismiss Count One — Multiple Conspiracies — and Incorporated Memorandum of Points and Authorities; Oral Argument Requested [filed by Nichols]

Docket entry 382 Motion to Dismiss Counts One, Two and Three because 18 U.S.C. § 2332a and 18 U.S.C. § 844(f) Violate the Eighth Amendment and Incorporated Memorandum of Points and Authorities; Oral Argument Requested [filed by Nichols]

Docket entry 383 Motion to Dismiss Count Three for Failure to State an Offense — Vagueness Regarding Intent Element — and Incorporated Memorandum of Points and Authorities; Oral Argument Requested [filed by Nichols]

Docket entry 384 Motion to Dismiss Counts Four through Eleven for Violation of Federal Rules of Criminal Procedure 7 and 8 and Incorporated Memorandum of Points and Authorities; Oral Argument Requested [filed by Nichols]

Docket entry 386 McVeigh's Motion for Oral Argument for Challenges to the Face of the Indictment and Brief in Support

Docket entry 387 McVeigh's Motion to Dismiss Count One of the Indictment, or Alternatively to Strike Surplusage and Incorporated Brief in Support

Docket entry 388 McVeigh's Motion to Strike Surplusage and Brief in Support

Docket entry 390 McVeigh's Motion to Consolidate Counts Two and Three and Motion to Dismiss Counts Four through Eleven and/or Motion to Consolidate Counts Two/Three and Counts Four through Eleven and Brief in Support

Docket entry 391 McVeigh's Motion to Dismiss Counts Five through Eleven and/or to Consolidate Counts Four through Eleven and Brief in Support

Docket entry 392 Defendant Timothy McVeigh's Motion to Adopt Terry Nichols' Motions Challenging Face of Indictment Docket entry 409 Errata Sheet to Motion to Dismiss Counts Five through Eleven and/or to Consolidate Counts Four through Eleven and Brief in Support [filed by McVeigh]

Docket entry 417 Notice re McVeigh's Motion to Dismiss Count One of the Indictment or Alternatively to Strike Surplusage and Incorporated Brief in Support [filed by Nichols]

Docket entry 418 Notice re Defendant McVeigh's Motions and Briefs in Support [filed by Nichols]

Docket entry 491 Brief of the United States in Opposition to Defendants' Motions to Dismiss or Alter the Indictment

Docket entry 600 Defendant Timothy McVeigh's Motion to Adopt Terry Nichols' Reply to the Government's Brief in Opposition to Defendants' Motions to Dismiss Indictment

Docket entry 601 Defendant McVeigh's Reply to the Government's Brief in Opposition to Defendants' Motions to Dismiss or Alter the Indictment

Docket entry 602 Notice re Defendant McVeigh's Reply to the Government's Brief in Opposition to Defendants' Motions to Dismiss or Alter the Indictment [fled by Nichols]

Docket entry 603 Reply to "Brief of the United States in Opposition to Defendants' Motions to Dismiss or Alter the Indictment" [filed by Nichols]

Docket entry 750 Status Report Regarding Substantive Motions, by Government

Docket entry 1390 Motion to Dismiss Counts One and Two on Grounds of Abatement [filed by Nichols]

Docket entry 1392 Notice of Erratum [filed by Nichols]

Docket entry 1415 Defendant McVeigh's Notice of Joining Motion to Dismiss Counts One and Two on Grounds of Abatement

Docket entry 1417 Brief of the United States in Opposition to Nichols' Motion to Dismiss Counts One and Two as Abated

Docket entry 1449 Supplemental Memorandum in Support of Motion to Dismiss Counts One and Two for Unconstitutionality of 18 U.S.C. § 2332a, Subsection 2 — Commerce Clause [filed by Nichols]

COMMERCE CLAUSE CHALLENGE

The defendants moved to dismiss counts one and two of the indictment on the ground that the statutory basis for them, 18 U.S.C. § 2332a, is unconstitutional because it is not within the delegated authority of Congress to legislate under the Commerce Clause of Article I of the Constitution. Count one charges a violation of § 2332a(a) by a conspiracy to use a "weapon of mass destruction" to kill and injure persons and to damage property of the United States. These two objectives are substantive crimes under subsections 2332a(a)(2) and (3). Count two charges the use of a "weapon of mass destruction" against persons, resulting in death and personal injury in violation of § 2332a(a)(2). Both counts describe the "weapon of mass destruction" as an "explosive bomb placed in a truck." The definition of the term "weapon of mass destruction" provided in § 2332a(b)(2)(A) includes any "destructive device" defined in § 921 of Title 18 of the United States Code. Subsection 921(a)(4) defines the term to include "(A) any explosive or incendiary (i) bomb...." The statute explicitly excludes "any device which is neither designed nor redesigned for use as a weapon...." § 921(a)(4)(C). Thus, "an explosive bomb placed in a truck" and designed for use as a weapon meets the definition of a weapon of mass destruction under § 2332a(b)(2).

The defendants rely principally on United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In Lopez, the Supreme Court invalidated the Gun-Free Schools Act of 1990, codified in 18 U.S.C. § 922(q), because it exceeded the power of Congress to regulate interstate commerce and violated the division of powers principle in the Constitution.

Section 922(q) made it a federal crime to possess a gun within 1,000 feet from the grounds of a public, parochial or private school. The defendant was a 12th-grade student who carried a concealed handgun and bullets into his school. Neither the statute nor its legislative history provided any congressional findings regarding any effect on interstate commerce from such conduct. Writing for the Court, Chief Justice Rehnquist reviewed past cases and concluded "that the proper test requires an analysis of whether the regulated activity `substantially affects' interstate commerce." Id. at ___, 115 S.Ct. at 1630. Finding no commercial activity was involved and considering that both crime and public education were historically and traditionally matters for regulation by state and local governments, the Court refused to defer to this congressional action. Of particular significance was the failure of the statute to include any "jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at ___, 115 S.Ct. at 1631. In the Court's view, acceptance of this statute would, in effect, convert the authority of Congress under the Commerce Clause "to a general police power of the sort retained by the States." Id. at ___, 115 S.Ct. at 1634.

Section 2332a(a)(2) is similar to § 922(q) (as it was in Lopez) in that it does not include any legislative findings concerning its purpose, and it does not contain any limitation restricting its application to conduct affecting interstate commerce. That similarity stops, however, when the bombing charged in this indictment is compared with a student carrying a concealed handgun and bullets into his high school building.

While explicit legislative findings of the effects on interstate commerce of particular conduct or activity are helpful to judicial review, the Court in Lopez recognized that they are not required. ___ U.S. at ___, 115 S.Ct. at 1631. If the regulatory purpose is discernible from the language of the legislation, considered in the context of other statutes and the facts of the particular case, and if there is a rational basis for the belief that the regulated activity substantially affects interstate commerce, the enactment is a valid exercise of congressional authority.

The power of the courts to declare an act of Congress unconstitutional may be exercised only when it is necessary to adjudicate the issues properly presented by the parties in the actual controversy presented by the pleadings. The Supreme Court's admonition in United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), must be remembered. There, Justice Brennan wrote:

This Court, as is the case with all federal courts, "has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also...