U.S. v. Moran
| Decision Date | 14 April 1988 |
| Docket Number | No. 87-1636,87-1636 |
| Citation | 845 F.2d 135 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Daniel T. MORAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John R. O'Brien, Chicago, Ill., for defendant-appellant.
Barbara F. Lazarus, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before CUMMINGS, CUDAHY and POSNER, Circuit Judges.
Following his indictment on seven counts of various firearms offenses, Dr. Daniel Moran pled guilty to two of the counts. He entered a plea of guilty to Count Six, which charged him with possession of three unregistered machine guns and an unregistered pistol silencer in violation of 26 U.S.C. Sec. 5861(d), and entered a conditional plea of guilty to Count Two, which charged him with the use of a firearm, a pipe bomb, during the commission of "a crime of violence" in violation of 18 U.S.C. Sec. 924(c). Moran's plea on Count Two was conditioned on a finding of federal jurisdiction over the "crime of violence" element of the charge. The district court found the requisite jurisdiction and sentenced Moran to a five-year consecutive sentence on each count and ordered him to pay restitution of approximately $17,000 to the insurer of the property damaged by the pipe bomb. On appeal Moran challenges the disposition of both counts. He argues that the district court did not have jurisdiction over the offense charged in Count Two and that it improperly considered disputed matters in the presentence report when imposing sentence under Count Six, 663 F.Supp. 19. We reject these arguments and affirm.
These convictions arose out of behavior the district court aptly characterized as irrational and out of the norm for any member of society, let alone someone with the defendant dentist's education and background. (R. 71 at 41-42). The stipulated evidence reveals that a minor car accident sixteen years ago provided Moran with a motive for his unreasonable and dangerous acts. The accident occurred in May 1972 when Moran was a student at Northern Illinois University. While making a turn at an intersection, the car driven by a fellow student, Steven Whitney, struck Moran, who was not injured by the collision, but in the physical altercation that ensued between Moran, Whitney and a passenger in Whitney's car, Moran dislocated his shoulder.
Eleven years passed without incident, then in April 1983 someone shot out windows of the Whitney family's Chicago residence with a pellet gun. One year later, in March 1984, someone ignited a pipe bomb at the front porch of the residence, breaking windows and damaging the exterior of the home. Twenty minutes after this explosion, Steven's wife Carol Whitney received a threatening telephone call from an anonymous male. In January 1985, someone again shot out a number of windows of the residence with a pellet gun. Then in the early morning of August 15, 1985, defendant ignited a pipe bomb near the front entrance of the home. The explosion caused approximately $17,000 in damages.
Exactly one year later, an anonymous caller telephoned Whitney at work and stated, Agents traced the telephone call to the Glen Ellyn, Illinois, residence of Frederick Marshall. Marshall subsequently admitted that Moran told him about his grudge with Whitney dating back to the 1972 altercation and described to Marshall how he had constructed the 1985 pipe bomb and used it to bomb the Whitney home. Marshall also admitted that he made the anniversary telephone call at the request of his friend, the defendant dentist. Marshall further informed the agents that Moran kept a newspaper clipping and videotaped television news coverage about the 1985 bombing of the Whitney home.
Marshall cooperated with the investigating agents and during an August 27, 1986, taped telephone conversation defendant again told Marshall that he had constructed the pipe bomb used in the second bombing of the Whitney home, and a few days later defendant gave further information to Marshall about the bomb construction. The agents obtained a federal search warrant and recovered various firearms and the videotape of the television news coverage and newspaper clippings from defendant's Glen Ellyn residence. When he was arrested, defendant was carrying Whitney's business card listing his name, address and telephone number.
The stipulation also disclosed the following facts relevant to the determination of federal jurisdiction. At the time the bombing occurred Whitney was a vice president of Indusco, Inc., a Chicago concern distributing alumina ceramics for heavy industry throughout the country. In December 1982, Indusco purchased a personal computer and related equipment that in August 1985, when the second bombing occurred, was located in Whitney's residence. At that time, Whitney used the computer, on the average, four to five hours per week for business; this time accounted for approximately ninety percent of the computer's usage. As part of the business conducted in his home, Whitney prepared spreadsheets on the computer to determine whether Indusco was receiving a fair price on materials that it purchased from its principal supplier in Latrobe, Pennsylvania. As a result of this work, Indusco negotiated a better price on materials it purchased from that supplier and realized a savings in August 1985 of $7,500. The stipulation also states that Whitney made a number of interstate telephone calls from his home to further Indusco's business. Finally, the residence used natural gas for heat and hot water, all of which came from out-of-state sources via an interstate pipeline, and was insured by an interstate insurance carrier.
The principal question presented by defendant is whether the district court had jurisdiction over Count Two, the use of a firearm during the commission of a "crime of violence" in violation of 18 U.S.C. Sec. 924(c). Jurisdiction under Sec. 924(c) is derived from jurisdiction over a predicate offense, the "crime of violence." In order to have jurisdiction over the Sec. 924(c) count, the court must have proper jurisdiction over the predicate offense.
The predicate offense charged in Moran's case is the offense charged in Count One of the indictment, violation of 18 U.S.C. Sec. 844(i). The relevant portion of Sec. 844(i) provides as follows:
Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or 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 (emphasis supplied).
Defendant contends that jurisdiction under Sec. 844(i) was improper because the Whitney residence was not a building used in or affecting interstate commerce.
In stating his argument, the defendant principally relies upon United States v. Mennuti, 639 F.2d 107 (2d Cir.1981). This reliance is misplaced. The court in Mennuti dismissed an indictment under Sec. 844(i) because it held that private dwelling houses not used for any commercial purpose would not support jurisdiction. Id. at 111-112. Although the court also stated that such interstate contacts as the use of out-of-state building materials in its construction, financing or insurance provided by banks or companies engaged in interstate commerce, or the receipt of electric power and telephone service from companies engaged in or affecting commerce would not provide jurisdiction either, id. at 109-110, the holding applies only to private dwellings that are not used for any commercial purpose at all. Id. at 111-112.
The Whitney residence does not fall within this narrow holding. The stipulated facts clearly establish that through the use of the business computer for business purposes and the interstate business telephone calls, the residence was used in part for commercial purposes. This commercial activity readily distinguishes Mennuti. See United States v. Barton, 647 F.2d 224, 232 n. 8 (2d Cir.1981). Because Mennuti is distinguishable, we need not, and do not, reject it as the government has requested (Br. 14). But cf. United States v. Patterson, 792 F.2d 531, 535 (5th Cir.1986) ().
Looking beyond Mennuti to the language of the statute, it refers to "any building ... used in interstate ... commerce or in any activity affecting interstate or foreign commerce." Congress intended to give the term "affecting interstate or foreign commerce" the "fullest jurisdictional breadth constitutionally permissible under the Commerce Clause." H.R.Rep. No. 91-1549, 91st Cong., 2d Sess. 70 (1970), U.S.Code Cong. & Admin.News 1970, pp. 4007, 4046. Although the government's far-reaching assertion at oral argument that the use of out-of-state nails in the construction of a private residence would establish jurisdiction tests the limits of the Commerce Clause, the facts of this case do not. The use of the personal computer, owned by a company engaged in interstate commerce, in an activity affecting interstate commerce, combined with the interstate business telephone calls, keep the Whitney residence well within the bounds of the Commerce Clause. See also United States v. Russell, 738 F.2d...
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