United States v. McBride

• Decision Date: 29 April 1983
• Docket Number: Crim. A. No. 82-226-01 to 82-226-04.
• Citation: 571 F. Supp. 596
• Parties: UNITED STATES of America, Plaintiff, v. John Marvin McBRIDE, Michael Allen Worth, Theodore Duane McKinney, and Jill Renee Bird, Defendants.
• Court: U.S. District Court — Southern District of Texas

571 F. Supp. 596

UNITED STATES of America, Plaintiff, v. John Marvin McBRIDE, Michael Allen Worth, Theodore Duane McKinney, and Jill Renee Bird, Defendants.

Crim. A. Nos. 82-226-01 to 82-226-04.

United States District Court, S.D. Texas, Houston Division.

April 29, 1983.

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Daniel K. Hedges, Ronald G. Woods, Houston, Tex., for plaintiff.

Mike Carnahan, Mack Secrest, John Ackerman, Charles Szekely, Houston, Tex., David Duncan, Durango, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

McDONALD, District Judge.

I. INTRODUCTION

Defendant Bird has moved to dismiss her indictment on the grounds that it is in violation of the Government's agreement with defendant McBride not to prosecute her. The Government argues that it was induced to enter the agreement by duress and fraud, and that to enforce it would contravene public policy. It also argues that the agreement fails as a contract because of lack of consideration and of performance, and failure of a condition precedent. Defendant Bird, for her part, argues that McBride performed his obligation under the contract in good faith, and that policy considerations mandate the application of contract law and specific enforcement of the agreement.

These are difficult issues. They involve the application of contract doctrine outside the commercial milieu to an agreement between the Government and a criminal defendant in the context of the attempted extortion of a major national oil company. They require the court to weigh competing public policies, in favor of protection of criminal defendants and the public interest in safety. The Court finds that the contract was supported by consideration, and not void on public policy grounds, that McBride performed his side of the bargain, and that although the Assistant United States Attorney Murphy entered the contract under duress, he subsequently ratified it. However, the Court concludes the agreement which Murphy entered is not binding on the United States Attorney in this district. Accordingly, defendant Bird's Motion is DENIED.

II. FACTS

On September 28, 1982, the president and three vice presidents of Gulf Oil Corporation received a letter announcing that "The Gulf Chemical, Cedar Bayou Plant and one other Gulf facility have been sabotaged." It stated that,

in excess of 10 explosive charges have been placed within the Cedar Bayou Plant. These charges are both radio actuated and time actuated. The radio charges may be detonated from any point within a twenty (20) mile radius of this facility. The time actuated charges will self-detonate starting 120 hours after 10:00 a.m. on the morning you receive this letter, the time charges will continue to detonate up to seven days after this time.

It stated further that,

The purchase price to Gulf for the locations and deactivation sequences for the bombs at Cedar Bayou, and one other plant to be discussed, is $15,000,000.00, a fraction of Cedar Bayou's value and annual producing income.

It continued that "a facility other than Cedar Bayou has also been sabotaged," that "should it be necessary for us to destroy Cedar Bayou the purchase price for the second facility will be $30,000,000," and that both plants were under periodic observation and the bombs would be actuated if Gulf notified outside authorities or media, or attempted to disarm the bombs.

The letter concluded:

We fully realize that you will use every means possible to find us after your facilities are safe; we accept that risk. However, before you notify outside authorities and media, you may wish to consider the probability of amateurs attempting this same crime, with potentially disastrous results.

In conclusion, when you receive this letter, and as you will realize after you examine the sample bomb, we have the means of instantly destroying two of your major facilities. We are determined to receive from you either fifteen or thirty million dollars; that choice is yours. If we receive neither we will destroy many times that amount worth of Gulf facilities, and simply move on to other of your plants; that choice is ours.

Gentlemen, THE CLOCK IS RUNNING.¹

The FBI investigated the extortion attempt and on October 1, 1982, arrested co-defendants Theodore Duane McKinney and Michael Allen Worth in Phoenix, Arizona, in the course of arranging by telephone to receive $15,000,000 from a Gulf official. Government agents subsequently traced the plot to Durango, Colorado, arresting Bird, McBride and Justice there on October 3, 1982.

Justice described the origins of the extortion attempt as follows. In early August, 1982, Worth, Justice and McKinney made an exploratory trip to Texas to survey potential targets among facilities at Houston and along the Gulf Coast, including both Cedar Bayou and Port Arthur. They discussed a primary and a secondary target at that time. (Ju.T. 3608, 54; 115-6).² At a meeting one or two weeks prior to the actual placement of the bombs on September 26, 1982, the five co-defendants met at McBride's house to discuss their extortion plans, including the placing of bombs at both the Port Arthur and Cedar Bayou (Ju.T. 168). Justice testified that although the original plan for the extortion attempt "pulsated back and forth" with respect to the number and location of bombs, the defendants finally settled on 5 or 6 bombs (Ju.T. 126-7) and decided that it was not necessary to actually plant 10 bombs at another site, since the threat of ten bombs alone would be sufficient. (Ju.T. 137, 168) Approximately one week before this meeting, McBride tested some explosives on Missionary Ridge northeast of Durango and the test did not work. (Ju.T. 67)

Justice spent most of Wednesday, September 22, 1982, and part of Thursday, September 23, 1982, at Worth's residence in Durango assisting Worth in construction of the bombs, in particular, testing the circuits (Ju.T. 28). The components of the bombs were scattered over two rooms (Ju.T. 33-5), and Justice and Worth moved from room to room to work on them (Ju.T. 91). Justice himself did not know how many component parts had been obtained in Durango (Ju.T. 59). McBride came to the house at one point to deliver toggle switches and stayed for ten or fifteen minutes to talk about the plan and whether the requisite parts would arrive at the store in Durango in time (Ju.T. 75), but he did not stay there for the completion of the bombs (Ju.T. 34, 35). Justice testified that he does not know whether McBride saw all the devices because they were scattered about (Ju.T. 34), but that he believed McBride knew how many were taken to Houston, and that he saw most of the components on the table in the living room. (Ju.T. 82, 127-8, 130)

Worth, Justice and Bird travelled to Houston by automobile. The bombs were transported to Houston in an unassembled condition; the casings, the explosives, and the blasting caps were packed separately (Ju.T. 70-1). Worth packed the car before Justice got in it, so Justice did not see the component parts packed. (Ju.T. 72, 152). Justice testified that five freezer dishes of explosives were taken to Houston but did not know exactly how many devices there were (Ju.T. 13). When he reached Houston Justice realized that they had sufficient components for at least five devices. Justice kept part of the explosives in his room at the motel in Houston (Ju.T. 95)

According to Justice, Worth and Justice brought to Houston extra component parts, including 2 to 3 extra cases and "a switch or two" (Ju.T. 89), as substitutions in case any components were faulty. The extra components could also be used for another sixth mock bomb for Port Arthur as indicated in the extortion letter, in the event Gulf did not deliver the 15 million dollars (Ju.T. 169, 174), although if they were, each of the bombs would contain less explosives. However, Justice also testified that placing another bomb would require a trip from Durango to Houston with additional supplies, and that the plan was that the sixth bomb would be built at McBride's house and that McBride would spearhead that effort. Finally, he testified that the idea of a secondary target, as a possibility was not discarded until defendants Justice, Worth and Bird reached Houston, and disposed of the extra explosive materials at a car wash in that city (Ju.T. 169, 175).

It took an hour and a half for Justice and Worth to assemble the bombs. Justice planted the bombs on September 26 but deviated from the plan once he got inside the plant and found it was not possible to place one of the bombs as planned (Ju.T. 73). On Wednesday evening, September 29, 1982, at the Houston motel, Justice heard a television report that five bombs had been located. Worth subsequently flew to Arizona in order to receive the money from Gulf officials, and Bird and Justice drove back to Durango, Colorado, arriving on Friday, October 1, 1982. They went to McBride's residence. There McBride played an audio tape recording of a television news report of the extortion attempt, twice. Justice's testimony on this tape was ambivalent. He stated, first, that he believed he told McBride at that time how many bombs he had planted and that McBride knew how many bombs he had taken to Houston; he then testified on direct that the television report stated that officials had found five bombs (Ju.T. 49, 78). On cross-examination, however, he testified that he didn't remember precisely what the reporter said, that the female reporter was cut off, but he believed she said they had found five bombs (Ju.T. 79), and that, upon hearing the tape, Justice told McBride, not that he had planted five devices, but that he had planted five bombs "in accordance with the plan". (Ju.T. 81) Finally, on redirect Justice indicated that he did not inform McBride that he had planted five bombs but rather than after Justice heard the taped report that Gulf officials had found "five" devices, he told McBride that they obviously...