United States v. Brown

• Decision Date: 05 November 1974
• Docket Number: Crim. No. 74-81692.
• Citation: 384 F. Supp. 1151
• Parties: UNITED STATES of America, Plaintiff, v. Hayward Leslie BROWN, Defendant.
• Court: U.S. District Court — Western District of Michigan

384 F. Supp. 1151

UNITED STATES of America, Plaintiff, v. Hayward Leslie BROWN, Defendant.

Crim. No. 74-81692.

United States District Court, E. D. Michigan, S. D.

November 5, 1974.

Ralph B. Guy, U. S. Atty., Gordon S. Gold, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

Sheldon Halpern and Kenneth Mogill, Detroit, Mich., for defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS COUNT II OF THE INDICTMENT

KENNEDY, District Judge.

Defendant has moved to dismiss Count II of the indictment against him which charges him with the bombing of the Planned Parenthood Clinic, located at 3750 Woodward Avenue, Detroit, Michigan, on January 12, 1973, in violation of Title 18, United States Code, Section 844(f). That section provides:

Whoever maliciously damages or destroys, or attempts to destroy, by means of an explosive, any building, vehicle, or other personal or real property in whole or in part owned, possessed or used by, or leased to, the United States, any department or agency thereof, or any institution or organization receiving Federal financial assistance shall be guilty of an offense against the United States.

The indictment alleges that the Planned Parenthood Clinic is an institution receiving federal financial assistance. Defendant asserts that Planned Parenthood Clinic does not receive federal financial assistance since it receives no funds directly from any agency of the United States and, that if the funds which it receives amount to federal financial assistance within the meaning of the statutory language, Section 844(f) is unconstitutional because Congress lacks the power to enact such a law.

In support of his motion, defendant offered the testimony of Seymour Brieloff, the Executive Director of Southeastern Michigan Family Planning Project (SEMFPP). Mr. Brieloff formerly was an Administrative Coordinator of Planned Parenthood League, which operates the Planned Parenthood Clinic. Mr. Brieloff testified that prior to May 7, 1972, Planned Parenthood League received grants of monies directly from the Department of Health, Education and Welfare (HEW) for certain items of a line budget submitted by Planned Parenthood League. SEMFPP, a non-profit corporation, was created and began functioning in May of 1972. All of its operating funds come from HEW and it operates in accordance with HEW directives. Its function is to act as a funding and coordinating agency. Line-item budgets of approximately fifteen family-planning agencies (including Planned Parenthood League, as well as other charitable and public agencies in this area of Michigan) are submitted by SEMFPP to HEW for HEW's approval and funding. SEMFPP then receives a single check each month from HEW and disburses the budgeted sums to the various family-planning agencies based on the budgets which HEW has approved and the agencies' actual expenditures. SEMFPP acts, then as a disbursing agent and coordinator and also checks to see that HEW guidelines are being followed. In addition, SEMPFF makes bulk purchases with HEW funds (e.g., supplies for the family-planning agencies which it can purchase cheaper), and distributes these items directly to the family-planning agencies or clinics. All SEMFPP funds and all funds disbursed by it come entirely from HEW and are disbursed in accordance with the line-item budgets approved in advance by HEW: SEMFPP has no discretion in how the funds are to be spent.

It is undisputed that approximately one-third of Planned Parenthood League's funds came from the federal government.¹ The remaining two-thirds came from private gifts or from fees paid by patients who can afford the charges. The federal funds received by Planned Parenthood are in two categories. Some are for specific services rendered to identifiable individuals. For example, Planned Parenthood League received $75.00 for each vasectomy performed and $200.00 per couple for fertility tests where the patient's income was within certain HEW guidelines. These amounts were based on actual cost to the clinic. The balance of the funds were for general expenditures, telephones, furniture, salaries, et cetera, and are not allocated to particular recipients of services.

Defendant's first challenge to Count II is that because these funds from HEW are channeled through SEMFPP for actual disbursement, funds which might otherwise constitute federal financial assistance lose this characteristic. In the Court's opinion, the assistance is no less federal because it is channeled through SEMFPP. SEMFPP acted only as a paying agent, for disbursing monies on a line-item budget without any power to determine how, when, or to whom they will be paid except to assure that HEW requirements were met. HEW itself made direct periodic inspections of SEMFPP's disbursements and also of Planned Parenthood League and other organizations and institutions receiving funds in order to monitor the program. Thus, SEMFPP acts as a mere conduit for funds, much as a bank or escrow agent might act.

Defendant next contends that the amount of federal monies expended here is insufficient to warrant federal protection. The criminal statute which imposes criminal sanctions here, Title 18, United States Code, Section 844(f), is part of the Explosive Control Act of 1970, enacted as Title XI of the Crime Control Act of 1970 (PL 91-452). Title XI was not part of the original Crime Control Act but was added as an amendment by the House Committee on the Judiciary (H.R. 17154, H.R. 16699, H.R. 18573, and related proposals). The specific provision concerning the destruction by explosives of property belonging to institutions or organizations receiving federal financial assistance was not drafted into the House bills as initially reported but was added during the final debate on the Crime Control Act. See 116 Cong.Record 35196 (1970).

The House Report on the Crime Control Act, 1970 U.S.Code Cong. & Admin. News p. 4007 (hereinafter House Report) indicates that Congress intended that the term "Federal financial assistance" be given a broad meaning. The House Report states:

This section § 844(f) also protects real and personal property belonging to institutions and organizations receiving Federal financial assistance such as universities, hospitals, and police stations. These provisions are designed to enable the Federal Government to participate more directly in the investigation and prosecution of such offenses. House Report, supra, at p. 4014.

And, again:

to permit the Federal government to more directly participate in the investigation and prosecution of the recent rash of attacks on ROTC facilities and other buildings on college campuses culminating in the tragedy at the University of Wisconsin, section 844(f) also encompasses real and personal property belonging to institutions and organizations receiving Federal financial assistance. House Report, supra, at p. 4046. Emphasis added.

The University of Wisconsin incident alluded to was the August 1970 bombing of the Army Mathematics Research Center at the University of Wisconsin, which resulted in $6 million in property damage. See letter to Representative Celler appended to Hearings Before Sub-committee No. 5, House Committee on the Judiciary, 91st Congress, second session, serial No. 29, at 324 (hereinafter Hearings). Although this incident is mentioned throughout the legislative history of the Explosives Control Act, the nature of the federal assistance to the bombed structure is not elaborated upon. Neither the Hearings nor the House Report states precisely what type of federal financial assistance is required to bring Section 844(f) into play. The phrase "other buildings on college campuses" supports the conclusion, however, that Congress intended Section 844(f) to cover the bombing of any building that is used for programs sponsored in whole or in part by the federal government — whether or not the federal government had a proprietary interest in the building itself.

This construction is buttressed by statements made on House Resolution 1235 — the final version of the Crime Control Act. Representative McCulloch indicated that Section 844(f) was to be broadly interpreted so as to cover property where the federal government has no proprietary interest:

it Title XI also writes new federal penalties for the use of explosive and incendiary devices to destroy property used in interstate commerce and property under the ownership or control of the Federal Government including the property of institutions and organizations receiving Federal assistance. 116 Cong.Record, supra at 35201 (1970). Emphasis added.

Representative McCulloch further stated:

in addition to tightening an earlier Federal anti-bombing law, Title XI extends federal jurisdiction to bombings on campuses receiving Federal financial assistance . . .. Id. at 35200.

Neither in the Hearings nor in the House Report is there any indication that Congress intended any limitation on the scope of Section 844(f). It is intended to cover the bombings of any real or personal property of any institution receiving federal financial assistance in whatever capacity, for whatever purpose, and in whatever amount. In light of the legislative history of Section 844(f) and the clear, unambiguous language of the statute itself it cannot be said that Congress did not intend the bombing of the Planned Parenthood League main office to fall within the purview of Section 844(f)²

The most substantial issue raised by the defendant is that there is no constitutional authority for Congress to enact a statute making it a crime to damage or destroy personal or real property owned by "any institution or organization receiving Federal financial assistance . . .". This broadside attack rests ultimately on the belief that power of the Federal Government is limited to specific constitutional grants of authority. Chief Justice Marshall said in 1819: "the government is acknowledged by all to be one of enumerated...