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July 25, 1995


The opinion of the court was delivered by: HOWARD G. MUNSON

 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. ยง 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.


 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.

 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.


 I. Motion to Dismiss

 In her scant submissions to the court in support of her motion to dismiss the indictment against her, *fn1" defendant Wentworth raises four arguments. First, she argues that she can not 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 ...

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