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.
I. Motion to Dismiss
In her scant submissions to the court in support of her motion to dismiss the indictment against her,
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 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 can not 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, 67 L. Ed. 314, 43 S. Ct. 141 (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. 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, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (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, 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 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 is unaffected by the ruling in Lopez, and defendant Wentworth's arguments that the Hobbs Act is unconstitutional or inapplicable to the circumstances of this case are unpersuasive.
c. Validity of the Grand Jury Proceedings
Wentworth's third argument for dismissal is that the grand jury proceedings were insufficient, both because the venire excludes women and mothers from service, and because she was not allowed to testify. A motion to dismiss an indictment based on an objection to the array of grand jurors is governed by Federal Rule of Criminal Procedure 6(b)(2), which incorporates by reference 28 U.S.C. § 1867. That section provides for a motion to dismiss based on a challenge to the array "within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor. . . ." 28 U.S.C. § 1867(a). The moving party must submit "a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title [regulating the selection of grand juries]." 28 U.S.C. § 1867(d). Thereafter the movant may "present in support of such motion the testimony of the jury commission or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence." Id.
In this case defendant Wentworth's claim is inexplicable given that under the Plan for the U.S. District Court for the Northern District of New York jurors are randomly selected from voter registration and licensed drivers lists, both of which presumably include women and mothers. At oral argument counsel based his argument on surmise and speculation. He presented the court with absolutely no evidence tending to support the allegation that the grand jury venire is unrepresentative, and the motion to dismiss based on that argument is denied.
Defendant Wentworth further argues that she was improperly denied her right to testify before a grand jury. Yet while defendants have a right to testify in a criminal trial, no such right attaches to federal grand jury proceedings. The role of a grand jury is accusatory, rather than adjudicatory. As stated by Justice Scalia:
It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge. That has always been so; and to make the assessment it has always been sufficient to hear only the prosecutor's side. . . . As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify . . . .