U.S. v. Sweet, s. 76-1366

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before FAIRCHILD, Chief Judge, CASTLE, Senior Circuit Judge, and WOOD; HARLINGTON WOOD, Jr.
• Citation: 548 F.2d 198
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John L. SWEET et al., Defendants-Appellants.
• Docket Number: 76-1387,76-1379,Nos. 76-1366,s. 76-1366
• Decision Date: 18 April 1977

Page 198

548 F.2d 198 UNITED STATES of America, Plaintiff-Appellee,
v.
John L. SWEET et al., Defendants-Appellants. Nos. 76-1366, 76-1379, 76-1387. United States Court of Appeals,
Seventh Circuit. Argued Nov. 30, 1976.
Decided Jan. 17, 1977.
Rehearing Denied Feb. 16, 1977.
Certiorari Denied April 18, 1977.
See 97 S.Ct. 1653.

Page 199

Lawrence E. Morrissey, Charles R. Purcell, Morton E. Friedman, Kenneth L. Cunniff, Chicago, Ill., for defendants-appellants.

Samuel K. Skinner, U. S. Atty., Patricia W. Lemley, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, CASTLE, Senior Circuit Judge, and WOOD, Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

The major issue is whether Congress in enacting 18 U.S.C. § 844(i) ¹ has exceeded its permissible reach into local matters under the Commerce Clause of the Constitution of the United States as applied to the facts of this case. We think not.

On August 28, 1975, the defendants, John L. Sweet, Henry D. Hollowell and James C. Hogan, were charged in a four count indictment with conspiring to destroy a tavern and its contents (Count I); Hollowell and Hogan with unlawful making and possession of fire bombs (Counts II and III); and all three defendants with malicious destruction of a tavern by means of an explosive (Count IV), in violation of 18 U.S.C. §§ 371 and 844(i) and 26 U.S.C. § 5861(d) and (f). The jury found all three defendants guilty of Count I, Hollowell and Hogan guilty of Counts II, III and IV. Sweet was acquitted on Count IV. ²

The factual background may be briefly stated. Two competing taverns, Uncle John's Country Inn, owned by Sweet, and Saso's Lounge, were located across the

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street from each other in Godley, Illinois. Sweet offered $2,000 to eliminate his competition by dynamite and Hollowell and Hogan accepted the offer. By a combination of whiskey bottles filled with gasoline, railroad flares and bricks, Hollowell and Hogan bombed and burned Saso's out of business on April 15, 1976. Lost with the tavern building were its stocks of liquor and beer originating out of state but purchased locally through distributors.

I.

Defendants do not challenge the proof of the conspiracy or sufficiency of the evidence, but argue that the substantive statute § 844(i) as applied to this affair between two local taverns is beyond the power of Congress and thus, the convictions on Counts I and IV must fall.

It is conceded that the destroyed building and alcoholic beverages were not "used in interstate or foreign commerce," but the question raised by defendants is whether the property was used in an activity "affecting" interstate commerce within the terms of the statute. Defendants say that the use of the commerce clause by the federal government as an inroad into local matters has already gone as far as it can or should go.

Only one case has directly sustained the validity of § 844(i) under the commerce clause, but defendants argue that it is not in point because of factual distinctions. There the property bombed was a commercial fishing boat which shipped its catch interstate and was thus, the defendants argue, itself an instrumentality of interstate commerce. United States v. Keen, 508 F.2d 986 (9th Cir. 1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1655, 44 L.Ed.2d 86. That case relied on Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), which to some extent the Government relies on here.

In Perez, supra, the contention was likewise made that the statute, 18 U.S.C. § 891, et seq., was unconstitutional on grounds that Congress had no power under the commerce clause to control local loan sharking as an activity affecting interstate commerce. That court had the benefit of congressional findings set forth in the act to the effect that there was a tie-in between local loan sharks and interstate crime. We do not have the benefit of such findings. However, the congressional purpose of 18 U.S.C. § 844(i), is explained in the following excerpts from the legislative history, House Report No. 91-1549, Organized Crime Control Act of 1970, 1970 U.S.Code Cong. & Ad.News:

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., 83 S.Ct. 312, 371 U.S. 224, 226, 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)

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The long reach of the enactment into matters which in some other context might be regarded as local was obviously intended, but we do not believe the Congress has overreached its power.

The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. United States v. Wrightwood Dairy Co., 315 U.S. 110, 119, 62 S.Ct. 523, 526, 86 L.Ed. 726 (1942).

Holding that wheat grown only for home consumption and never marketed interstate was subject to federal regulation because it supplied the need of the producer, which need would otherwise have been satisfied by purchases in the open market, the Court said:

But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, . . . . Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 89, 87 L.Ed. 122 (1942).

The reach of § 844(i) in this case is not that far, but by analogy it could apply to a tavern bombing even though the alcoholic beverages served had not only been served but produced on the local premises.

In a civil rights case involving a local restaurant serving food, some of which had moved interstate, the Court again said:

It goes without saying that, viewed in isolation, the volume of food purchased by Ollie's Barbecue from sources supplied from out of state was insignificant when compared with the total foodstuffs moving in commerce. But, as our late Brother Jackson said for the Court in Wickard v. Filburn, 317 U.S. 111 (63 S.Ct. 82, 87 L.Ed. 122) (1942):

"That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others...