U.S. v. Schwanke

• Citation: 598 F.2d 575
• Decision Date: 05 April 1979
• Docket Number: 77-1958 and 77-1959,Nos. 77-1797,s. 77-1797
• Parties: 4 Fed. R. Evid. Serv. 1459 UNITED STATES of America, Plaintiff-Appellee, v. Richard Wayne SCHWANKE, Virgil Ernest Huggins, Olen Collins, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 575

598 F.2d 575

4 Fed. R. Evid. Serv. 1459

UNITED STATES of America, Plaintiff-Appellee, v. Richard Wayne SCHWANKE, Virgil Ernest Huggins, Olen Collins,

Defendants-Appellants.

Nos. 77-1797, 77-1958 and 77-1959.

United States Court of Appeals, Tenth Circuit.

Submitted Jan. 26, 1979.

Decided April 5, 1979.

Leonard D. Munker, Federal Public Defender, Wichita, Kan. (Jim Jones, Sallisaw, Okl., for defendant-appellant Huggins, and Philip Warren Redwine, Norman, Okl., for defendant-appellant Collins, on briefs), for defendants-appellants.

Betty O. Williams, Asst. U. S. Atty., Muskogee, Okl. (Julian K. Fite, U. S. Atty. and John R. Osgood, Asst. U. S. Atty., Muskogee, Okl., on briefs), for plaintiff-appellee.

Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.

BARRETT, Circuit Judge.

Richard Wayne Schwanke (Schwanke), Virgil Ernest Huggins (Huggins) and Olen Collins (Collins) appeal their jury convictions of destroying a building by use of an explosive in violation of 18 U.S.C.A. § 844(i) ¹ and conspiracy in violation of 18 U.S.C.A. § 371.

Schwanke was charged in a two-count indictment filed June 14, 1977. Count I charged Schwanke with maliciously damaging and destroying a building by use of an explosive, the building "then being used for commercial business purposes, at least one of said businesses being actively engaged in or affecting interstate commerce," and that "as a result of said explosion at least one person received and sustained physical injury" in violation of § 844(i). Count II charged Schwanke, together with Collins, Huggins, and one Elmer Brown, Jr., with conspiracy to destroy the building. Huggins, Collins and Brown were jointly charged in a similarly drafted two-count indictment filed the same day.

Schwanke proceeded to trial on July 6, 1977. The Government established that: Huggins owned the building in question which was located in Muldrow, Oklahoma; the building carried a substantial mortgage; Huggins had acquired insurance on the building in excess of the mortgage; the building and its contents were destroyed on March 12, 1977; a cafe located in the building purchased food items from Arkansas; Schwanke was picked up by Vickie Lynn Keith shortly after the explosion and fire which destroyed the building and Schwanke was cut burned and bleeding and appeared to be in shock; Schwanke told Keith that: he and a friend had been paid $100 to blow up a building, he did not want to go to a hospital, he wanted to be dropped off at a party's house to collect the $100, and that he had been supplied the dynamite used in the explosion by the party who was to pay him the $100; Shelley Renee Behunin, Keith's sister, related that she was with Keith when they picked up Schwanke and that he was badly injured and bleeding; Behunin identified Schwanke, known to her as "Rick"; artifacts taken from the explosion contained "chemical particles or the presence of nitroglycerin, nitroglycal and sulphur, and that these are ingredients found in dynamite."

At the conclusion of the Government's case in chief, Schwanke moved for judgment of acquittal which was denied by the court. Schwanke thereafter waived his opening statement, presented no evidence, and rested. The jury found Schwanke guilty as charged in both counts. He was thereafter sentenced under the Federal Youth Corrections Act, § 5010(b).

Following Schwanke's conviction, Huggins, Collins and Brown were tried on August 22, 1977. As a result of the joint trial, Brown was acquitted and Huggins and Collins were convicted on both counts. The government established its case against Huggins and Collins along the same lines it had proceeded against Schwanke but, in addition, the Government established that: prior to the destruction of the building, Huggins conferred with Collins, who lived in Indiana, by long distance telephone; in April, 1977, Collins related to two undercover agents that he had just completed a "job," describing in detail the Huggins' property; one John Conley, an inmate from Cummins Prison related that in early 1977 Huggins had called him and asked him to burn a building. Schwanke was also called to testify. His testimony, however, was by and large limited to denying statements attributed to him by Keith and Behunin at the time they picked him up. At the conclusion of the Government's case, counsel for Huggins and Collins presented no evidence and rested.

Schwanke

Schwanke contends: (1) the Government failed to establish and sustain jurisdiction for a criminal violation under § 844(i); (2) Congress did not contemplate increasing the penalty for a § 844(i) violation when the only party injured was the indicted defendant standing trial; (3) the court erroneously denied his motion for a continuance; and (4) he was prejudiced by the denial of his request to subpoena a witness at the Government's expense.

(1).

Schwanke contends that the Government failed to establish and sustain jurisdiction for a criminal violation under § 844(i). As noted, Supra, inherent within a § 844(i) violation is the destruction or damage, or attempt, to "any building . . . or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce."

It is undisputed that Huggins' building was located in Muldrow, Oklahoma, and that one of his tenants, Vernon Galloway, operated a cafe, during the course of which he purchased candy, gum and vegetables from Arkansas. Schwanke does not attack or rebut this evidence. Rather, he argues that "under § 844(i) the nexus establishing or affecting interstate commerce must be a person engaged in organized crime to avoid the implication that Congress was not invading traditional state criminal jurisdiction." (Appellant's Brief, p. 18.)

We do not accept Schwanke's construction of § 844(i). We do not find anything in the legislative history of the statute supportive of his contention. Congress has the power to punish the unlawful use of explosives under the Commerce Clause even though the effect on interstate commerce may be De minimis. United States v. Sweet, 548 F.2d 198 (7th Cir. 1977), Cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1977). In Sweet, supra, the court quoted extensively from the legislative history of § 844(i):

Bombings and the threat of bombings have become an ugly, recurrent incident of life in cities and on campuses throughout our Nation. The absence of any effective State or local controls clearly attest to the urgent need to enact strengthened Federal regulation of explosives.

Its purpose is to protect interstate and foreign commerce against interference and interruption by reducing the hazards to persons and property arising from explosives misuse and unsafe or insecure storage. It is also intended to assist the States effectively to regulate explosives distribution within their borders . . . (P. 4013)

Section 844(i) proscribes the malicious damaging or destroying, 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. Attempts would also be covered. Since the term affecting (interstate or foreign) "commerce" represents "the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause," NLRB v. Reliance Fuel Corp., 371 U.S. 224, 226, 83 S.Ct. 312, 9 L.Ed.2d 279 (1963), this is a very broad provision covering substantially all business property. While this provision is broad, the committee believes that there is no question that it is a permissible exercise of Congress authority to regulate and to protect interstate and foreign commerce. (P. 4046)

548 F.2d, at p. 200.

We hold that the Government's evidence against Schwanke adequately established jurisdiction giving rise to a criminal violation under § 844(i).

(2).

Schwanke contends that Congress did not contemplate enhancing the penalty under § 844(i) for the unlawful misuse of explosives where the only party injured is the indicted defendant standing trial. As noted, Supra, Count I of the indictment returned against Schwanke alleged that "as a result of said explosion at least one person received and sustained physical injury."

During the course of Schwanke's trial the Government established, via uncontested testimony that: at the time Schwanke was picked up by Keith and Behunin he was cut, burned, bleeding, and in shock; Schwanke related to Keith and Behunin that he and a friend had blown up a building with dynamite; Schwanke related that he didn't get out of the building fast enough.

Schwanke does not attack the validity or sufficiency of this evidence. His sole argument is that Congress did not contemplate increasing the penalty for a § 844(i) violation when, as here, he was the only injured party. This is a somewhat unique provision. Neither party has presented helpful authority or analysis. We agree, however, that increasing the penalty was not intended in a case like this. Sections 844(d) and (f) which contain similar references to enhancement of penalty "if personal injury results," refer to explosives used "to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building . . . ." This seems to us to contemplate prohibition of harm to another person and not self-injury. In the section involved here, § 844(i), as well as in § 844(f), it is stated that if death results from the use of explosives the death penalty may be given to the perpetrator. Thus we think there is a close analogy in the felony murder cases. In People v. Ferlin, 203 Cal. 587, 265 P. 230 (1928) an owner was found to have hired an individual to burn his building down for the insurance. In the fire the arsonist was accidentally burned to death. The building owner was convicted not only of arson and burning insured property, but of murder. The court declared that he could not have been guilty of murder:

It would not be seriously...