US v. Arena, No. 95-CR-144.

• Court: United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
• Writing for the Court: MUNSON, Senior
• Citation: 918 F. Supp. 561
• Decision Date: 19 March 1996
• Docket Number: No. 95-CR-144.
• Parties: UNITED STATES of America v. John ARENA and Michelle Wentworth, Defendants.

918 F. Supp. 561

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

No. 95-CR-144.

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

March 19, 1996.

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Thomas J. Maroney, United States Attorney, Northern District of New York, Syracuse, New York, (John Duncan, Assistant U.S. Attorney, of counsel), for U.S

Frank Policelli, Utica, New York, for Defendant Arena.

Carl F. Guy, Syracuse, New York, for Defendant Wentworth.

MEMORANDUM-DECISION AND ORDER

MUNSON, Senior District Judge.

Before the court are the post-trial motions of two defendants convicted by jury of violating and conspiring to violate the Hobbs Act, 18 U.S.C. § 1951, by causing butyric acid attacks at two medical facilities providing abortion services. The government's theory at trial was that this conduct was extortive within the meaning of the Act, wrongfully inducing the victims to depart with their property (namely their right to conduct business) and was in interference with interstate commerce. Oral argument was heard in Syracuse, New York on January 24, 1996. The following constitutes the Memorandum-Decision and Order of the court.

I. BACKGROUND

The proof at trial and the record to date are sufficient to establish the following facts. On April 14, 1994, Michelle Campbell, the daughter of defendant Michelle Wentworth, entered the Planned Parenthood Center of Syracuse, New York and released a quantity of butyric acid into the facility. Butyric acid is a noxious and malodorous chemical. Inhalation of its odors can induce nausea, vomiting, dizziness, and a burning sensation in the

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eyes, throat, and respiratory system. Michelle Campbell executed a similar attack at the offices of Dr. Jack E. Yoffa on May 19, 1994. Both offices provide reproductive services, including abortions. Defendant Wentworth was convicted by jury in state court in Onondaga County for charges relating to this conduct, and defendant Arena pled guilty to related charges

Defendant Arena paid Michelle Campbell the sum of $100 for the first attack on Planned Parenthood, and $135 for the second attack on Dr. Yoffa's office. He also supplied the butyric acid for each attack. Arena recruited Campbell with the help of her mother, defendant Wentworth. Both Arena and Wentworth are antiabortion advocates with prior arrests arising from their protest activities.

The attacks caused significant losses at the two facilities. Both were forced to evacuate and close. Seven people from Dr. Yoffa's office required emergency treatment at hospitals for exposure to acidic vapors. Former patients were intimidated away, revenues were lost during the closings, substantial cleanup costs were incurred, new and costly security measures have been necessitated, and employees quit out of fear. Dr. Yoffa suffered losses in excess of $20,000 and Planned Parenthood in excess of $35,000.

On December 22, 1995, after an eight day trial, the jury returned their verdict. Both defendants were found guilty of two counts of extortion and one count of conspiracy to commit extortion in violation of the Hobbs Act. The post-trial motions of the defendants are addressed below.

II. DISCUSSION

The court discerns three arguments in the memoranda of the defendants. First, they contend the Hobbs Act is inapplicable to the facts of the case and the evidence at trial could not as a matter of law support the convictions. Wentworth Memorandum ("Mem.") of Law, Document ("Doc.") 74, at 7-14; Transcript of Motions, Exhibit ("Exh.") A attached to Wentworth Mem. of Law, Doc. 74.¹ Second, defendant Arena asserts that the incompetence of the counsel for the codefendant during trial prejudiced him to the extent that a new trial is required. Arena Notice of Motion, Doc. 72, at 2-3. And third, defendant Wentworth claims that the federal prosecution following her state conviction for the same conduct violated her constitutional rights. Wentworth Mem. of Law, Doc. 74, at 12. In addition to these points, briefed and argued by counsel, Mr. Arena in a statement to the court raised numerous complaints which the court will address at the end of this opinion.

After a general review of the standards for granting judgment of acquittal in a criminal case, or for a new trial, the particulars of each defendant's arguments will be examined.

A. Standards

It matters not whether a motion for judgment of acquittal is made before the jury's verdict or after; the available grounds and standard for granting or denying are the same. See United States v. Burns, 597 F.2d 939, 941 (5th Cir.1979). The motion should be granted "if the evidence is insufficient to sustain a conviction" Fed.R.Crim.P. 29(a), or possibly if there is a "hopeless variance" between the proof and the crime charged, 2 Charles A. Wright, Federal Practice and Procedure: Criminal 2d § 466, at 654 (1982 & Supp.1995). The trial judge in considering a motion under Rule 29

must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon

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which a reasonable mind might fairly conclude guilt beyond reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter.

Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 232-33, cert. denied, 331 U.S. 837, 67 S.Ct. 1512, 91 L.Ed. 1850 (1947); accord United States v. Rodriguez, 706 F.2d 31, 41 (2d Cir.1983); United States v. Lieberman, 637 F.2d 95, 104-05 (2d Cir.1980); United States v. Taylor, 464 F.2d 240, 243 (2d Cir.1972); United States v. Moustakis, 864 F.Supp. 390, 391-92 (S.D.N.Y.1994).

The evidence should be evaluated in a light most favorable to the government, United States v. Cunningham, 723 F.2d 217, 230 (2d Cir.1983), cert. denied, 466 U.S. 951, 104 S.Ct. 2154, 80 L.Ed.2d 540 (1984), and the defendant's burden is very heavy, United States v. Chang An-Lo, 851 F.2d 547, 553 (2d Cir.) (citations omitted), cert. denied, 488 U.S. 966, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988). A reserved decision on a motion for acquittal made during trial must be decided "on the basis of the evidence at the time the ruling was reserved." Fed.R.Crim.P. 29(b). That limitation is of no consequence in the matter sub judice as the reserved Rule 29(a) motions concern issues which would not be affected by the defense's case.

"Although a trial court has broader discretion to grant a new trial pursuant to Rule 33 than to grant a motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29 ..., that discretion should be exercised sparingly." United States v. Sanchez, 969 F.2d 1409 (2d Cir.1992), cert. denied, ___ U.S. ___, 115 S.Ct. 1404, 131 L.Ed.2d 291 (1995). A district judge may order a new trial "if required in the interest of justice." Fed. R.Crim.P. 33. New trials may be granted on several grounds, including inter alia newly discovered evidence, juror bias, prosecutorial misconduct, ineffective assistance of counsel, witness perjury, or simply that the verdict was against the great weight of the evidence. See generally 8A James Wm. Moore, Moore's Federal Practice ¶ 33.021 n. 2, 33.04-.06 (2d ed. 1995). However, the court is usually directed to defer to the jury's resolution of the weight of the evidence and witness credibility. Sanchez, 969 F.2d at 1414 (quoting United States v. LeRoy, 687 F.2d 610, 616 (2d Cir.1982), cert. denied, 459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983)).

With these benchmarks in mind, the court proceeds to the argument over the applicability of the Hobbs Act to the facts of this case.

B. The Hobbs Act

Both defendants argue that the government in this case failed to prove beyond a reasonable doubt all the elements of extortion under the Hobbs Act, which reads in pertinent part

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years or both.

18 U.S.C. § 1951(a).

"Extortion" in turn

means the unlawful taking or obtaining of personal property from another, with his consent, induced by wrongful use of actual or threatened force, or fear, or under color of official right.

Id. § 1951(b)(2).

By its own terms, the Hobbs Act is also violated when a defendant attempts to extort in interference with interstate commerce. E.g., United States v. Rindone, 631 F.2d 491, 493 (7th Cir.1980) (per curiam).

Between their two motions, defendants challenge the applicability of every element of the crime. For this reason, the separate elements of Hobbs Act extortion are analyzed in the order they appear in the statute, with individual arguments of the defendants interwoven. Additionally, defendant Wentworth makes an unparticularized argument that the Hobbs Act was not intended by Congress to apply to the circumstances of this case and is an unwarranted extension of

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federal jurisdiction into the domain of the states. This `federalism' contention is also discussed

1. Interstate Commerce

Beginning with the required nexus with commerce, defendant Wentworth relies upon United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) for the proposition that the charged extortive conduct must `substantially' affect interstate commerce....