US v. Arena

• Decision Date: 25 July 1995
• Docket Number: No. 95-CR-144.,95-CR-144.
• Parties: UNITED STATES of America v. John ARENA and Michelle Wentworth, Defendants.
• Court: U.S. District Court — Northern District of New York

894 F. Supp. 580

UNITED STATES of America v. John ARENA and Michelle Wentworth, Defendants.

No. 95-CR-144.

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

July 25, 1995.

COPYRIGHT MATERIAL OMITTED

Thomas J. Maroney, United States Attorney, Northern District of New York, Syracuse, NY, for U.S.

Carl F. Guy, Syracuse, for defendant Wentworth.

Frank Policelli, Utica, NY, for defendant Arena.

MEMORANDUM-DECISION AND ORDER

MUNSON, Senior District Judge.

Both defendants in this case are charged with two counts of extortion and one count of conspiracy to commit extortion, all in violation of the Hobbs Act, 18 U.S.C. § 1951. The charges stem from two incidents in which defendant Wentworth's daughter, Michelle Campbell, allegedly released butyric acid into facilities in which abortions are performed. The first acid attack took place on April 14, 1994 at Planned Parenthood in Syracuse, New York. The second attack occurred on May 19, 1994 in the Syracuse office of Dr. Jack E. Yoffa. Presently before the court is a motion by defendant Wentworth to dismiss the indictment against her, and a motion by defendant Arena for reconsideration of Magistrate-Judge DiBianco's order detaining Arena pending trial. The court heard oral argument on the motions on July 14, 1995 in Auburn, New York.

BACKGROUND

Defendant John Baptist Arena is an outspoken right-to-life advocate. He has a long criminal history relating to protesting abortion, with charges ranging from trespass to obstructing governmental administration. The government claims that Arena's protest behavior escalated steadily through April, 1994, when he allegedly recruited co-defendant Michelle Wentworth and her daughter, Michelle Campbell, to participate in the butyric acid attacks at issue in this case. According to the government, Arena supplied the acid and financed the criminal enterprise. He induced Wentworth and Campbell to participate by promising $100 for each clinic attacked.

The first target of the conspirators was Planned Parenthood in Syracuse. At noon on April 14, 1994 Michelle Campbell entered Planned Parenthood, gained access to the women's bathroom through a ruse, and discharged butyric acid throughout the bathroom. She poured some of the acid directly into the clinic's ventilation system.

Butyric acid is a colorless substance which emits an odor so noxious as to induce nausea and vomiting, dizziness, and burning of the eyes, throat, and respiratory system of those exposed to the vapors. Employees and patients of Planned Parenthood were overcome by the vapors released during the acid attack, and the clinic was forced to close for the day. A professional cleaning company was hired to clean the facility, and the clinic was not again fully operational until April 19, 1995.

The next target of the conspirators was the office of Dr. Jack Yoffa in East Syracuse. Campbell allegedly released butyric acid in Dr. Yoffa's office on May 19, 1995, using essentially the same scheme that was successful in her attack on Planned Parenthood. As in the previous attack, Campbell released the acid in the bathroom and left the office undetected.

The two deliberate attacks on medical facilities were costly. Planned Parenthood sustained losses approximating $35,500 relating to cleaning the facility and replacing damaged fixtures. The clinic also lost $5,500 in potential revenues during the time it was closed due to the attack. Planned Parenthood has endured further costs and aggravation due to security measures instituted as a result of the attack. Finally, two employees left their jobs at the clinic because they feared for their safety.

Dr. Yoffa's total financial loss relating to the attack on his offices was $20,430.53. That figure includes $9,295.00 to install bullet-resistant glass between the waiting room and the office suite. One employee quit in the wake of the attack, citing concern for his personal safety. Dr. Yoffa also lost several patients who no longer wish to be treated at his office.

Arena allegedly paid Campbell for the two attacks. He paid $100 for the attack on Planned Parenthood and $135 for the attack on Dr. Yoffa's office. The government alleges that Arena also offered Wentworth and Campbell $1,000 to fire-bomb an abortion clinic.

Michelle Wentworth was arrested on June 3, 1994. She was charged in a June 15, 1994 indictment in Onondaga County Court with criminal mischief, endangering public health, and conspiracy relating to the Planned Parenthood attack. In a separate indictment filed on July 26, 1994 she was charged with criminal mischief and endangering public health relating to the incident in Dr. Yoffa's offices. Wentworth pleaded not guilty to all charges, but was found guilty after a jury trial. She was sentenced on February 2, 1995 to five years probation and 500 hours of community service.

On April 20, 1995 a federal indictment was returned charging Wentworth and Arena with two counts of extortion and one count of conspiracy to commit extortion. These charges stem from the same events underlying the state charges against defendant Wentworth. On April 21, 1995 both defendants were arraigned before Judge Pooler. Defendant Wentworth was released on bail pending trial. Defendant Arena was detained pending a detention hearing.

The detention hearing took place on April 26, 1995 before Magistrate-Judge DiBianco. On May 2, 1995 the court issued a written decision detaining Arena pending trial because he was a danger to the community.

Presently before the court are motions by both defendants. Defendant Wentworth moves for dismissal of the indictment. Defendant Arena moves to overturn Magistrate-Judge DiBianco's decision to detain Arena pending trial. The court addresses each motion in turn.

DISCUSSION

I. Motion to Dismiss

In her scant submissions to the court in support of her motion to dismiss the indictment against her,¹ defendant Wentworth raises four arguments. First, she argues that she cannot be convicted in federal court for the same offense that was the basis of her prior state court conviction. Second, she asserts that the Hobbs Act is both unconstitutional and inapplicable to defendant Wentworth's alleged misdeed. Third, she asserts that the grand jury which indicted her was not selected from a representative cross-section of United States citizens, in that women and mothers were excluded from the venire, and that she was improperly prevented from testifying before the grand jury. Fourth, Wentworth argues that the indictment was filed because of a personal grudge.

a. Double Jeopardy

Wentworth's first argument is that she cannot be convicted of a federal crime for the same acts for which she was convicted in state court. This assertion clearly is erroneous. It is well established that the "double jeopardy clause's protection only applies in instances where the same sovereign is responsible for the successive prosecutions." United States v. Giovanelli, 945 F.2d 479, 491 (2d Cir.1991). It further has long been held that the federal government is a separate sovereignty from the individual states. United States v. Lanza, 260 U.S. 377, 378, 43 S.Ct. 141, 141, 67 L.Ed. 314 (1922). Under the principle of dual sovereignty "an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each." Id., 260 U.S. at 382, 43 S.Ct. at 142. Because the United States has not previously prosecuted defendant Wentworth for the offense charged, her double jeopardy argument is meritless.

b. Applicability of the Hobbs Act — Interstate Commerce

Wentworth next argues that the Hobbs Act is inapplicable to the acts for which she is charged. Her argument is based on her assertion that neither Planned Parenthood nor Dr. Yoffa's office has a nexus to interstate commerce. She cites the United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) in support of her contention that the commerce clause was never intended to cover purely local crimes.

Defendant Wentworth's reliance on Lopez is misplaced. In that case the Supreme Court held that the federal Gun-Free School Zone Act of 1990 ("the Act") exceeds Congress' commerce clause authority and therefore is unconstitutional. The Act made it illegal "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V). The Court noted that the Act neither regulated a commercial activity nor required that the possession of a gun be somehow connected to interstate commerce. Lopez, ___ U.S. at ___, ___, 115 S.Ct. at 1626, 1634. Because "the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce," the court ruled that Congress had no power under the Commerce Clause to regulate the activity. Id. at ___, 115 S.Ct. at 1634.

The Hobbs Act is distinguishable from the Gun-Free School Zone Act in that the former expressly requires a connection to commerce. The Hobbs Act applies only to one who "in any way or degree obstructs, delays, or affects commerce" through extortion. 18 U.S.C. § 1951(a). Further, in the instant case, the government pleads an affect on interstate commerce. The damages to Dr. Yoffa's office affects interstate commerce because he treats out-of-state patients. Additionally, both Planned Parenthood and Dr. Yoffa purchase goods in interstate commerce. Under a "depletion of assets theory," commerce is effected when an enterprise, which either is actively engaged in interstate commerce or regularly purchases items in interstate commerce, has its assets depleted through extortion, thereby curtailing its potential as a purchaser of such goods. United States v. Collins, 40 F.3d 95, 101 (5th Cir. 1994); United States v. Morgano, 39 F.3d 1358 (7th Cir.1994). In short, the Hobbs Act...