The opinion of the court was delivered by: COSTANTINO
MEMORANDUM OF DECISION AND ORDER
The defendants, Anthony Giordano ("Giordano") and Benito Guadagni ("Guadagni") are charged in a seven count indictment with various crimes arising from a plan to commit arson. The subject of the instant motion is Count Seven of the superseding indictment wherein both defendants are charged with conspiring under 18 U.S.C. § 371 to maliciously damage and destroy a building in violation of 18 U.S.C. § 844(i)
, by their planned arson of a fictitious piano store.
The government has moved for two rulings prior to trial on the admissibility of certain expert testimony and on proposed jury instructions
, relating to the jurisdictional requirement under Sections 844(i) and 371. Specifically, the issue is whether a conspiracy to destroy a fictitious piano store has a sufficient nexus with interstate commerce to come within the ambit of federal jurisdiction. In opposition both defendants have moved to dismiss Count Seven for lack of jurisdiction on the ground that the government's proposed proof would not establish a crime within the terms of the statute. After due consideration by this court, Count Seven is hereby dismissed for the reasons set forth below.
In Count Seven the defendants are charged with conspiracy to maliciously damage and destroy and attempt to damage and destroy by means of an explosive, a building used in interstate commerce and/or in an activity affecting interstate commerce. See 18 U.S.C. §§ 844(i) and 371. In this case the building is a fictitious piano store. From the facts submitted by the government, this investigation began after an informant told the FBI that the defendant Giordano had previously contracted to have arsons committed. On the basis of this information, FBI agents told the informant to ask Giordano to put the informant in contact with those who had committed the prior arsons in order to get these people to undertake an arson for him, the informant.
A meeting between Giordano and the informant subsequently took place on April 20, 1981 and was recorded by a tape recorder worn by the informant. At that meeting, the informant told Giordano the FBI's prearranged story. He explained to Giordano that he knew a piano store owner in Queens whose store was doing poorly, and who consequently wanted it "torched." Giordano then indicated that he had executed three arsons in the last four months and was planning to "blow up" a supermarket in the near future. After expressing a desire to commit the "arson" for a fee, Giordano asked where the piano store was located. The informant, thinking of a real piano store that he knew, mentioned a location in Queens. After further discussions regarding the specifics of the crime, the two men parted.
Prior to the next scheduled meeting, the FBI and the United States Attorney in an apparent attempt to protect innocent life and property decided to have the informant substitute the identity of a fictitious piano store rather than a real one. To this end, the FBI fabricated the name Pianos, Incorporated, with an address slightly different in location from the real piano store discussed during the April 20th meeting.
At an April 22, 1981 meeting, the informant told Giordano that, before going ahead with the deal, he would have to meet Giordano's partner to make sure that the "arson" was in competent hands. Giordano agreed to try to have the informant meet with his partner, and on April 23, 1981, the informant met with Giordano and his partner "Benny", the defendant Guadagni. After a short discussion, Giordano and Guadagni agreed to destroy the "piano store", and the informant gave the defendants the name and address of Pianos, Incorporated, the fictitious piano store. Shortly after their meeting with the informant on April 23rd, the defendants were arrested.
At the outset it is noted that the court is not concerned with the merits of the conspiracy, but rather with the power of the court to consider the merits of that crime. The issue focuses directly on the limits of federal involvement in such crimes, i.e., whether a conspiracy to destroy a fictitious piano store has a sufficient nexus with interstate commerce to be subject to prosecution in federal courts.
The government's power to prosecute an individual for conspiracy to accomplish something factually unattainable is not at issue in the case at bar. See United States v. Feola, 420 U.S. 671, 693, 95 S. Ct. 1255, 1268, 43 L. Ed. 2d 541 (1975); United States v. Rabinowich, 238 U.S. 78, 86, 35 S. Ct. 682, 684, 59 L. Ed. 1211 (1915). However, when the government seeks to indict for conspiracy under federal law, the link to federal jurisdiction must be identified if this court is to exercise its power. In United States v. Feola, the court discussed this requirement in the context of an assault on a federal officer. In dicta the Feola court noted that:
Federal jurisdiction always exists where the substantive offense is committed in the manner therein described, that is, when a federal officer is attacked. Where, however, there is an unfulfilled agreement to assault, it must be established whether the agreement standing alone, constituted a sufficient threat to the safety of a federal officer so as to give rise to federal jurisdiction. If the agreement calls for an attack on an individual specifically identified, either by name or by some unique characteristic ... and that specifically identified individual is in fact a federal officer, the agreement may be fairly characterized as one calling for an assault upon a federal officer, even though the parties were unaware of the victim's actual identity and even though they would not have agreed to the assault had they known that identity. Where the object of the intended attack is not identified with sufficient specificity so as to give rise to the conclusion that had the attack been carried out the victim would have been a federal officer, it is impossible to assert that the mere act of agreement to assault poses a sufficient threat to federal personnel and functions so as to give rise to federal jurisdiction. 420 U.S. at 695-96, 95 S. Ct. at 1269.
In the instant matter, the link to federal jurisdiction is the interstate commerce clause. However, the specific link to federal jurisdiction as in Feola continues to be a necessary requisite for this court's power to act over this conspiracy. Thus, in order to assert federal jurisdiction, the connection with interstate commerce under Section 844(i) must be specifically identified. In that Section 371 has no jurisdictional requisites of its own, the court must focus on the jurisdictional requisites for the substantive crime in Section 844(i). In light of the limited, clear-cut jurisdictional focus of Section 844(i), proof of any possible interstate character of a fictitious piano store is irrelevant. The basis for exercising jurisdiction according to Feola must be concrete, not imaginary or hypothetical. Thus, after analyzing the jurisdictional requisites along with the facts herein, this court concludes that there can be no conspiracy to maliciously damage or destroy a building in interstate commerce under sections 844(i) and 371 because the fictitious nature of the piano store defies proof of its link to interstate commerce.
In Perez v. United States, 402 U.S. 146, 91 S. Ct. 1357, 28 L. Ed. 2d 686 (1971), the Supreme Court analyzed Congress' power to regulate interstate commerce. Perez was a loan-sharking prosecution under 18 U.S.C. § 891, in which defendants challenged the extent of Congress' regulatory power under the commerce clause. In its analysis, the Supreme Court delineated three categories of commerce clause jurisdiction:
The Commerce Clause reaches in the main, three categories of problems. First, the use of channels of interstate or foreign commerce which Congress deems are being misused, as, for example, the shipment of stolen goods (18 U.S.C. §§ 2312-2315) or of persons who have been kidnapped (18 U.S.C. § 1201). Second, protection of the instrumentalities of interstate commerce, as for example, the destruction of an aircraft (18 U.S.C. § 32), or persons or things in commerce, as for example, thefts from interstate shipments (18 U.S.C. § 659S). Third, those activities affecting commerce. It is with this last category that we are here concerned. Perez v. United States, 402 U.S. 146, 150, 91 S. Ct. 1357, 1359, 28 L. Ed. 2d 686 (1971).
Only a statute which covers all three categories exercises "the full jurisdictional reach" of Congress' commerce clause power that is constitutionally permissible. See United States v. Mennuti, 487 F. Supp. 539, 543 (E.D.N.Y.1980), aff'd, 639 F.2d 107 (2d Cir. 1981). In Mennuti, the Second Circuit held that Section 844(i) is a "category two" statute as defined in Perez, and applies only to the destruction of interstate property. The court rejected the Congressional history behind § 844(i)