United States v. Mennuti

• Citation: 487 F. Supp. 539
• Decision Date: 03 April 1980
• Docket Number: No. 79 CR 679.,79 CR 679.
• Parties: UNITED STATES of America v. Dominick MENNUTI et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

487 F. Supp. 539

UNITED STATES of America v. Dominick MENNUTI et al., Defendants.

No. 79 CR 679.

United States District Court, E. D. New York.

April 3, 1980.

Edward R. Korman, U. S. Atty. by Steven G. Nelson, Asst. U. S. Atty., Brooklyn, N. Y., for plaintiff.

Tepper & Popkin, Hicksville, N. Y., for defendant Mennuti.

David W. Clayton, Shirley, N. Y., for defendants Roy and Tricoli.

Donald H. Birnbaum, Garden City, N. Y., for defendant Cruser.

T. M. Henderson, Mineola, N. Y., for defendant Natale.

MEMORANDUM AND ORDER

GEORGE C. PRATT, District Judge:

By an indictment filed December 19, 1979, defendants¹ were charged with conspiracy and substantive violations of 18 U.S.C. § 844(i),² which prohibits destruction (by means of an explosive) of property "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce". At a conference held February 13, 1980, counsel for defendant Mennuti indicated that he would move to dismiss the indictment for lack of jurisdiction. He thereafter filed papers on March 3, 1980 which urge that the property involved in this case was not "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce".³ By papers filed the same day, March 3, 1980, defendant Natale joined in defendant Mennuti's motion to dismiss the indictment.⁴ For reasons set forth below, defendants' motion to dismiss the indictment for lack of jurisdiction is granted.

THE FACTS

The Assistant United States Attorney has submitted an affidavit setting forth the government's view of the facts:

Counts One and Two of the indictment charge the defendants Mennuti, Cruser and Natale with conspiring to destroy, and actually destroying, a building located at 10 Yacht Street, Brookhaven, New York by means of an explosive. 10 Yacht Street, Brookhaven, was a one-family dwelling owned by Dominick Mennuti's wife, Anne Mennuti. During the period in question the dwelling was the actual residence of the Mennuti family. The mortgage financing the purchase of the house was held by the Union Savings Bank of Long Island, which conducted business in interstate commerce and whose business affected interstate commerce.⁵

The premises at 10 Yacht Street was insured by the Government Employees Insurance Company (Geico) and approximately Twenty-five Thousand ($25,000.00) dollars was paid to Anne Mennuti by Geico in settlement of the insurance claim for the fire at 10 Yacht Street. The payments were made in the form of several checks which were drawn on out-of-state banks. Presumably, the mortgage holder, the Union Savings Bank of Long Island, was paid out of the proceeds of the insurance claim.

As noted in oral argument before the Court, the residence at 10 Yacht Street was constructed with various components and materials, e. g., wood, glass and asphalt shingles, which are produced exclusively outside of New York state. Likewise, telephone lines, electric lines and other services provided at 10 Yacht Street travelled in interstate commerce and affected interstate commerce. Finally, of course, when the residence at 10 Yacht Street was destroyed, it was rebuilt, again through the use of building materials originating outside of New York state.

Counts Three and Four charge all five defendants with conspiring to destroy, and actually destroying, a building located at 26 Sally Lane, Ridge, New York. The building in question was a rental property owned by defendants Roy and Tricoli for rental to the public.⁶ Those defendants advertised the property as a rental in a newspaper which travelled in interstate commerce, i. e., Newsday. The building was originally constructed of building materials originating outside of New York state, and after being repeatedly vandalized, was repaired with other materials coming from out of state. Likewise, utilities travelling in and affecting interstate commerce serviced the building at 26 Sally Lane. Finally, and most significantly, insurance proceeds for the claim relating to the destruction of 26 Sally Lane were paid by checks drawn on an out-of-state bank account in the name of Continental Casualty Insurance Company. Affidavit of Stephen Nelson, ¶¶ 3 through 6. (footnotes added)

The truth of these facts is accepted for purposes of the discussion which follows.

THE LAW

The court is aware of no reported case in this circuit construing the jurisdictional boundaries of 18 U.S.C. § 844(i). However, the issue has been the subject of three recent appellate decisions elsewhere: United States v. Sweet, 548 F.2d 198 (CA7 1977), cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1977); United States v. Schwanke, 598 F.2d 575 (CA10 1979), and United States v. Grossman, 608 F.2d 534 (CA4 1979).

In Sweet, defendants were indicted under 18 U.S.C. § 844(i) for destroying a competing local tavern, by means of railroad flares, bricks, and whiskey bottles filled with gasoline. Defendants argued that it was beyond the power of Congress to prohibit the acts in question.

The Sweet court began by quoting at length from the legislative history of § 844(i), including the following passage:

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 (sic) authority to regulate and to protect interstate and foreign commerce.

United States v. Sweet, supra, 548 F.2d at 200 (quoting House Report No. 91-1549, Organized Crime Control Act of 1970, 1970 U.S.Code Cong. & Admin. News at 4007, 4046) (brackets inserted by the Sweet court).

The court accepted the view expounded in the legislative history that the language of § 844(i) represents "the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause" and determined the extent of § 844(i) jurisdiction by analyzing leading Commerce Clause cases on the Sherman Act, 15 U.S.C. §§ 1-7, and the Hobbs Act, 18 U.S.C. § 1951. The court then quoted from one of its own Hobbs Act decisions, United States v. DeMet, 486 F.2d 816 (CA7 1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974), as follows:

Because Congress has seen fit to exercise its full power under the commerce clause, extortionate conduct having an arguably de minimis effect on commerce may nevertheless be punished. United States v. Sweet, supra, 548 F.2d at 202.

The Sweet court found the DeMet "de minimis" standard to be applicable to cases under § 844(i) as well as to cases under the Hobbs Act:

Both statutes punish unlawful acts which affect commerce. The effect on commerce was the concern of DeMet. In holding as we do, we are, therefore, not stretching federal jurisdiction as defendants argue. Any stretching that there may have been in this area was long ago accomplished. Nor do we discount the wisdom of some restraint succinctly enunciated in Mr. Justice Stewart's dissent in Perez 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). Id.

The court held that the bombing of the tavern had on interstate commerce at least a de minimis effect sufficient to sustain jurisdiction under the Commerce Clause and § 844(i).

The next appellate construction of § 844(i) occurred in United States v. Schwanke, supra, where defendants were indicted for dynamiting a building "then being used for commercial business purposes". Defendants did not dispute that a business with interstate connections had been located in the destroyed building. However, defendants nonetheless moved to dismiss the indictment for lack of jurisdiction, arguing 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. United States v. Schwanke, 598 F.2d at 578.

Rejecting this argument, the Tenth Circuit panel in Schwanke followed Sweet in giving a broad construction to § 844(i):

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. citation to United States v. Sweet omitted.

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

The most recent appellate construction of § 844(i) occurred in United States v. Grossman, supra, where defendants were indicted for conspiracy to destroy by means of an explosive a hydraulic excavator (back hoe). Defendants moved to dismiss the indictment for lack of jurisdiction, arguing that the back hoe was not being used in interstate commerce at the time it was destroyed. The Fourth Circuit rejected this argument, relying on the legislative history and the decisions in Sweet and Schwanke:

We are in accord with the conclusion of the Seventh and Tenth circuits that in using the words "affecting interstate commerce" Congress intended to exercise the full jurisdictional reach constitutionally permissible under the Commerce Clause. citation omitted.

With the statutory breadth of § 844(i) in mind, we are of the opinion that the evidence in this case demonstrated a sufficient interstate nexus. As we have noted, the back hoe had been manufactured in Iowa and owned by two

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