U.S. v. Monholland

• Decision Date: 28 September 1979
• Docket Number: Nos. 78-1708,78-1709,s. 78-1708
• Citation: 607 F.2d 1311
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Grover Stanley MONHOLLAND and Orville Glenn Russell, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1311

607 F.2d 1311

UNITED STATES of America, Plaintiff-Appellee, v. Grover Stanley MONHOLLAND and Orville Glenn Russell Defendants-Appellants.

Nos. 78-1708, 78-1709.

United States Court of Appeals Tenth Circuit.

Argued and Submitted May 18, 1979.

Decided July 11, 1979.

As Modified on Denial of Rehearing Sept. 28, 1979.

James E. Edmondson, Asst. U. S. Atty. (Julian K. Fite, U. S. Atty., Muskogee, Okl., on brief), for plaintiff-appellee.

Harold Landram, Muskogee, Okl., for defendant-appellant Grover Stanley Monholland.

Jesse L. Leeds, Muskogee, Okl., for defendant-appellant Orville Glenn Russell.

Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

On June 19, 1978, the above-named defendants were jointly indicted by a grand jury in the Eastern District of Oklahoma. The indictment had four counts. Count I charged that on April 1, 1978, and continuing to May 23, 1978, the defendants willfully and knowingly entered into an agreement, combination and conspiracy to commit the offense of willfully and maliciously destroying a vehicle by explosives, a pickup truck, the property of State District Judge Lynn Burris of Cherokee County, Oklahoma, which vehicle was used regularly as part of an activity affecting interstate commerce, contrary to 18 U.S.C. § 844(i) and 18 U.S.C. § 2. It was further alleged that the object of the conspiracy was to destroy the truck when Judge Burris was operating it, thereby causing his death.

The overt acts in connection with Count I are that the defendants hired a person to do the actual bombing. On May 22, the date of the hiring, the defendants took this person to the residence of Judge Burris and pointed out the pickup truck and said that enough explosives should be used to destroy the vehicle and kill the judge. An additional overt act was entering into a contract, with the individual employed, to pay him $1,000 for killing Judge Burris. A further overt act alleged was that on May 23, 1978, defendant Russell gave the individual employed $20.00 as expense money for a down payment on the $1,000.00.

Count II charged that on May 23, the defendants willfully and knowingly attempted to damage and destroy, by means of an explosive, a vehicle, a pickup truck of Judge Burris, which vehicle was regularly used in an activity affecting interstate commerce.

Counts III and IV were the same except that they were separate counts as to Russell and Monholland. Count III alleged that on the 22nd of May, Russell attempted to receive in interstate commerce an explosive, defined in 18 U.S.C. § 844(j), with knowledge that the explosive would be used to kill the judge, in violation of 18 U.S.C. § 844(d).

Count IV, with the same language as that in Count III, charged Monholland with the act of attempting to receive explosives in interstate commerce.

This case originated with the Bureau of Alcohol, Tobacco and Firearms, which agency received information that the defendants were trying to purchase a case of dynamite, dynamite caps and primacord. On May 22, 1978, an agent of the Bureau, one Loyd S. Cobb, contacted the defendant Monholland for the purpose of buying a pickup truck, supposedly, and was advised by Cobb that he was a blaster for an area construction company. On learning that Cobb was supposedly connected with explosives, Monholland asked him whether he was completely honest and was told that he (Cobb) would do whatever was necessary in order to earn money, whereupon Monholland said that he might have some work for Cobb to do. Cobb inquired as to its nature and was told that the target was a district judge. Cobb did not quote a price at that time. Monholland and Cobb drove to the residence of defendant Russell. Monholland talked to Russell and the two of them talked to Cobb about killing two district judges. He then told Cobb that he wanted him to look at a pickup truck. Russell led them to the residence of Judge Burris and they pointed out the judge's pickup. Russell indicated at that time that it was his wish to have the pickup truck blown up.

On this occasion Cobb stated that his fee for each of the contracts would be $1,000.00. He also showed the defendants simulated dynamite. They asked how much the dynamite was and Cobb answered that it was not for sale. Monholland stated that the contract fee would be paid to Cobb after the job was completed. He also said that he might have the money the next night. Russell agreed to this and they said that they might have two more jobs for Cobb to do at the same time. The defendants said that in addition to blowing up Judge Burris's pickup truck, they wanted to be sure that the judge was killed in connection with it. All three returned to Russell's residence and the defendants then invited Cobb to return the next day at which time they would possibly have the money and further jobs for him to do.

The three met again on May 23, 1978, at which time Monholland said that he was trying to get the money and that meanwhile Cobb could have a rifle as a bonus if he would wait. Russell said that he did not have the money on hand and would have to borrow it or rustle some cattle to get it. Both Russell and Monholland gave Cobb a $20.00 bill for gasoline money on account. Cobb agreed to hold the money. Following this May 23 conversation, Monholland and Russell were arrested by the Bureau of Alcohol, Tobacco and Firearms, and after that they were indicted by the grand jury on the charges that are the subject of the appeal. At trial the evidence showed that each of the two defendants had personally inspected and handled the "dynamite."

Thankfully, this matter failed to materialize in any significant way. When it reached the payment of money stage, it lost all momentum. So the conspiracy and attempt did not proceed beyond extensive conversations.

The points advanced by the defendants are:

First, that the court erred in admitting tape recordings of conversations by the agent with the defendant because of their lacking evidentiary foundation; also, that the tapes were inaudible; thirdly, that there had been no opportunity to examine them before trial; and, fourthly, that they were not admissible because they were made without the defendants' consent.

Second, that the venue was improper because of the excessive newspaper coverage that was given to the case.

Third, that there was no proof of jurisdiction because the transaction was intrastate.

Fourth, that even though entrapment was not interposed at the trial, it could be relied on as an issue of law on this appeal.

We conclude that the transaction is not one which has any effect on interstate commerce, and therefore there was a lack of federal jurisdiction.

THE JURISDICTION QUESTION

The section of the statute under which the prosecution was undertaken,18 U.S.C. § 844(i), provides as follows:

(i) whoever maliciously damages or destroys, or attempts to damage or destroy, by means of an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both; and if personal injury results shall be imprisoned for not more than twenty years or fined not more than $20,000, or both; and if death results shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment as provided in section 34 of this title.

Thus, it proscribes the damaging or attempting to damage or destroy "by means of an explosive, any building, vehicle * * * used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce * * *." The statute therefore focuses primarily on property. The effect of personal injury is an aggravating factor which substantially increases the penalty which can be imposed. The indictment centers on the conspiracy to blow up the vehicle.

The government's theory of the case is that the vehicle was used in interstate commerce or in an activity affecting interstate commerce. The indictment describes the judge's pickup as a vehicle which is regularly used in and as a part of activity affecting interstate commerce. The statute does not go that far and it cannot be expanded. The prohibition of the statute is against use of explosives to damage or destroy a vehicle used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.

The evidence shows that Judge Burris, an Oklahoma state judge, serves a five-county judicial district and that he drives his pickup truck between his residence and the courthouse within his judicial district and within Oklahoma. He does not, of course, drive the truck interstate. There is not even the pretense that he does. The government argues in its brief, however, that it met its burden of establishing the required connection between interstate commerce at least to a De minimis extent. It also relies on the fact that the simulated explosive, a dummy stick of "dynamite" which was viewed by Russell and Monholland, had traveled in commerce. These simulated explosives were not, of course, explosives at all. We do not say that this fact is of any great consequence because the prosecution is not based on the interstate character of the explosives, simulated or real. It zeros in on the interstate character of the Vehicle. The prosecution argues that Judge Burris testified about "numerous" aspects of his job as a judge which affected interstate commerce and about the use of that particular pickup truck and its contribution to these activities. This needs careful attention.

Judge Burris testified that in the course of his duties he customarily presides over divorce cases; cases involving enforcement of support orders under the Uniform Reciprocal Support Act; cases involving child custody, alimony and property divisions; cases in which parties and interests in...