United States v. Podolsky, 85 CR 7.
| Decision Date | 01 November 1985 |
| Docket Number | No. 85 CR 7.,85 CR 7. |
| Citation | 625 F. Supp. 188 |
| Parties | UNITED STATES of America, Plaintiff, v. Donald PODOLSKY, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
Suzanne B. Conlon, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
Patrick A. Tuite, Patrick A. Tuite, Ltd., Chicago, Ill., for defendant.
Defendant Donald Podolsky, a City of Chicago fireman, was charged in a three-count indictment with: (1) conspiracy under 18 U.S.C. § 371 to commit arson in violation of 18 U.S.C. § 844(i) and to possess an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871; (2) attempted arson in violation of 18 U.S.C. § 844(i); and (3) possession of and failure to register a firearm in violation of 26 U.S.C. §§ 5861(d) and 5871. Following a brief bench trial Podolsky moved for a judgment of acquittal as to all three counts and the government sought conviction. Because this case involved significant legal issues, both the government and the defendant sought and were given leave to file post-trial memoranda of law. After considering all the evidence and reviewing these memoranda, we grant defendant's motion of acquittal as to Count III and deny it as to Counts I and II of the indictment. We find the defendant guilty beyond a reasonable doubt as to Counts I and II.
There is no dispute as to the following facts which came out at trial and appear in the record. Ron Ziedman, a government informant, approached Podolsky in November 1984 with a proposition that Podolsky burn a building for a fee of $5,000. Apparently, Podolsky and Ziedman had once discussed such a deal a year or two before, but the deal had never come to fruition. See Gov't.Ex. 15A at 3-4. Ziedman claimed that the owner of the building in question, located at 2436 W. Division in Chicago, wanted this vacant building burned to collect insurance money. During their first few conversations, Podolsky balked at the deal. See, e.g., Gov't.Ex. 15A at 4; Gov't.Ex. 16A at 1-3. But Podolsky eventually warmed to the idea, lured by the offer of money. See Gov't.Ex. 17A at 5. Podolsky and Ziedman agreed in general that $2,500 would be paid in front and $2,500 after the job was done. Podolsky told Ziedman he worked with a partner, who turned out to be co-defendant and fellow firefighter Charles Hawkins,1 but did not disclose who the partner was.
At about this time, late November or early December, Podolsky asked Hawkins at work if he was willing to burn a building with Podolsky for $2,500. Hawkins thought it over for a couple of days and agreed. Podolsky was to handle the arrangements, while Hawkins would accompany Podolsky for the job itself.
Podolsky and Ziedman had several conversations and meetings between late November and January 4, 1985, the day that Podolsky and Hawkins were arrested. On December 13, 1984, Podolsky and Ziedman drove to the targeted building. During their drive Podolsky boasted about some previous "jobs" he had done. See, e.g., Gov't.Ex. 18A at 3, 13. Podolsky observed that the building at 2436 W. Division ("the 2436 building") was vacant, with open windows and would therefore burn quickly and easily. Id. at 21. However, during this reconnaissance mission, Podolsky affirmed, as he would several times later, that he would not agree to burn a building with people in it:
Sometime shortly thereafter, the government must have realized that the vacant 2436 building had its natural gas line shut off, so that jurisdiction might be lacking for a federal arson prosecution concerning that building. Thus, Ziedman called Podolsky and said he wanted the building at 2438 Division ("the 2438 building") burned, as well as the 2436 building. Podolsky said then, and several other times, that he would not burn the 2438 building if there were people in it; but relying upon repeated assurances from Ziedman that the building would be vacated, Podolsky agreed to burn the second building for an extra $5,000:
From this and other exchanges, it is clear that Podolsky's agreement to burn the 2438 building was conditioned on its being vacant on the date of the fire. Similarly, it is clear from Hawkins' testimony and his interview with government authorities that he and Podolsky agreed and understood that they would not burn the 2438 building if people were in it.
On Saturday, December 16, 1984, Podolsky told Hawkins at work that they would buy materials two days later, Monday, and burn the building2 that evening. They discussed what materials to buy and agreed on gasoline, brake fluid and chlorine. When mixed together, chlorine and brake fluid react chemically, releasing heat in the process. The release of heat eventually ignites the gasoline. But the chlorine/brake fluid reaction can be slow enough so that the firemen could start the reaction and drive away from the building before the fire would begin. The evidence showed that the device ultimately constructed in this case would burn intensely but not explode.
On December 17, 1984, Podolsky postponed the "job" because of an arson the evening before which killed a mother and her four children and which gained much play in the media. Podolsky told Ziedman and Hawkins he was worried about police watching vacant buildings for a while, and so he wanted to wait "till this heat, uh, comes down." Gov't.Ex. 20A at 2.
Podolsky put off Ziedman for several days, but on December 27, 1984, he finally rescheduled the job for Friday evening, January 4. He repeated that the buildings must be vacant by then. See Gov't.Ex. 23A at 4. That day Podolsky told Hawkins that the deal was on again and included another building for an additional $5,000. Podolsky did not then tell Hawkins when or where the job would occur. Two days before the day for the fire, Podolsky told Hawkins of the date of the job. He also told Hawkins that the second building was occupied but would be vacant by the time of the fire.
Podolsky and Hawkins spent several hours together on Friday, January 4, preparing for their evening's work. They bought ten pounds of a chlorine compound, two twelve-ounce containers of brake fluid and a package of styrofoam cups. That evening Podolsky introduced Hawkins and Ziedman at Fluky's, a northside restaurant. They went out to Podolsky's car, which had the materials in the back seat. Podolsky showed Ziedman the materials, explained how brake fluid and chlorine would ignite the gasoline and then accepted $5,000 in cash from Ziedman. Podolsky and Hawkins dropped the money off at Podolsky's apartment and drove toward the target buildings, stopping to get gasoline along the way. Also while en route, Hawkins crushed chlorine tablets into two cups in order to prepare the ignition mixture.
Podolsky and Hawkins agreed in the car that if people were around the buildings, they would not burn them. If questioned, they would say they were there to board up the buildings. They drove past the buildings and then into an alley behind the buildings. Leaving the chemicals in the car, they walked to the buildings to check them out. They saw a light in the 2438 building and agreed that they could not burn it then because they assumed it was occupied. They walked to the basement of the 2436 building to see if it was occupied, but were then greeted and arrested by police officers.
Count One of the indictment charges Podolsky and Hawkins with a two-pronged conspiracy. The government alleges first that, in violation of 18 U.S.C. § 371,3 they conspired to burn the 2438 building, which would have violated 18 U.S.C. § 844(i). Second, Hawkins and Podolsky allegedly conspired to possess an unregistered firearm as defined in 26 U.S.C. §§ 5845(a) and (f) in violation of 26 U.S.C. §§ 5861(d) and 5871.4 Podolsky challenges the conspiracy to commit arson charge on two levels. He asserts that, assuming that Podolsky and Hawkins did agree to burn the 2438 building, the government improperly manufactured federal jurisdiction over what is essentially a state law arson offense; thus, he concludes that the Court lacks jurisdiction. He asserts in the alternative that the evidence fails to show that he and Hawkins ever actually agreed (and thus conspired) to burn the 2438 building, because an essential precondition to such an agreement, that the building would be vacant, was never fulfilled. We consider and reject each contention in turn.5
The parties agree that the courts have extended broad federal jurisdiction over prosecutions under 18 U.S.C. § 844(i). Enacted under the full jurisdictional breadth of the Commerce Clause, § 844(i) "is a very broad provision covering substantially all business property." United States...
To continue reading
Request your trial
-
US v. Bucey
..."neither agreed to do nor did anything with interstate consequences; the federal officials did it all." United States v. Podolsky, 625 F.Supp. 188, 194 (N.D.Ill.1985) (Aspen, J.), aff'd, 798 F.2d 177 (7th Cir.1986). The Archer decision has been narrowly read and universally distinguished. S......
-
U.S. v. La Cock
...do so, and, until it does, we must read the word `bomb' so that it retains some sensible meaning'" (quoting United States v. Podolsky, 625 F.Supp. 188, 199 n. 13 (N.D.Ill.1985)) (alterations in original). The district court concluded that because Defendant's device was "incendiary in nature......
-
U.S. v. Podolsky
...in prison on the conspiracy count and to five years of probation and 500 hours of community service on the attempted-arson count. 625 F.Supp. 188 (N.D.Ill.1985). His appeal presents two issues: whether the agreement to burn down the building in question was conditional on an event that neve......
-
US v. Clark
...in Archer neither agreed to do nor did anything with interstate consequences; the federal officials did it all." United States v. Podolsky, 625 F.Supp. 188, 194 (N.D.Ill.1985), aff'd, 798 F.2d 177 (7th Courts considering cases similar to the one at bar, where the defendants themselves carri......