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March 19, 1996


The opinion of the court was delivered by: MUNSON

 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.


 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 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.


 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. *fn1" 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 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 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 (D.C. Cir.), cert. denied, 331 U.S. 837, 91 L. Ed. 1850, 67 S. Ct. 1511 (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, 80 L. Ed. 2d 540, 104 S. Ct. 2154 (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, 102 L. Ed. 2d 530, 109 S. Ct. 493 (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, 131 L. Ed. 2d 291, 115 S. Ct. 1404 (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 P 33.02[1] 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 (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 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, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995) for the proposition that the charged extortive conduct must 'substantially' affect interstate commerce. Wentworth Mem. of Law, Doc. 74, at 6. In the much discussed Lopez case the Supreme Court struck down the Gun-Free School Zones Act as an unconstitutional exercise of Congress' power to regulate interstate commerce. 115 S. Ct. at 1626. Prior to Lopez, all the circuits that considered the issue held that only a de minimis effect upon commerce need be shown for a Hobbs Act offense. See United States v. Hathaway, 534 F.2d 386, 396 (1st Cir.), cert. denied, 429 U.S. 819 (1976); United States v. Daley, 564 F.2d 645, 649 (2d Cir. 1977), cert. denied, 435 U.S. 933, 55 L. Ed. 2d 530, 98 S. Ct. 1508 (1978); United States v. Traitz, 871 F.2d 368, 390 (3d Cir.), cert. denied, 493 U.S. 821, 107 L. Ed. 2d 44, 110 S. Ct. 78 (1989); United States v. Billups, 692 F.2d 320, 321 n.7 (4th Cir. 1982), cert. denied, 464 U.S. 820, 78 L. Ed. 2d 93, 104 S. Ct. 84 (1983); United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980), cert. denied, 450 U.S. 920, 67 L. Ed. 2d 348, 101 S. Ct. 1369 (1981); United States v. Harding, 563 F.2d 299, 302 (6th Cir. 1977), cert. denied, 434 U.S. 1062, 55 L. Ed. 2d 762, 98 S. Ct. 1235 (1978); United States v. Crowley, 504 F.2d 992, 997 (7th Cir. 1974); United States v. Shackelford, 494 F.2d 67, 75 (9th Cir.), cert. denied, 417 U.S. 934, 41 L. Ed. 2d 237, 94 S. Ct. 2647 (1974); United States v. Bolton, 68 F.3d 396, 398 (10th Cir. 1995); United States v. Frost, 61 F.3d 1518, 1524 (11th Cir. 1995).

 In a previous decision denying defendants' pretrial motions, this court held that Lopez does not invalidate this wealth of precedent. United States v. Arena, 894 F. Supp. 580, 584-85 (N.D.N.Y. 1995). *fn2" Specifically, the court held that it was sufficient if the government pled and proved an effect upon interstate commerce by a "depletion of assets" theory. *fn3" Id. Since that decision, several circuit courts of appeals have considered the issue of whether Lopez affects existing law on the interstate commerce element of the Hobbs Act, and concluded that it does not. The Tenth Circuit for example, in comparing the Gun-Free School Zones and Hobbs Acts, observed that "unlike; possession of a firearm: in a school zone . . . robbery and extortion are activities that through repetition can substantially affect interstate commerce." United States v. Bolton, 68 F.3d 396, 399 (10th Cir. 1995). The Bolton court specifically reaffirmed both the de minimis standard, id., and the viability of the depletion of assets theory, id. at 398. See also United States v. Farmer, 73 F.3d 836, 1996 WL 15573, at *5-6 (8th Cir. 1996) and United States v. Stillo, 57 F.3d 553, 558 n.2 (7th Cir. 1995) for the same holding. This court agrees with Bolton that the "Hobbs Act regulates activities which in aggregate have a substantial effect on interstate commerce," 68 F.3d at 399, and therefore "the de minimis character of individual instances arising under [this] statute is of no consequence," Lopez, 115 S. Ct. at 1629 (citations omitted).

 The aggregate effect of violence directed at reproductive health facilities upon interstate commerce is actually increasing the interstate nature of abortion services. Because of the fear of violence, the number of doctors performing these services has declined, particularly for women in rural areas, leaving only 17% of U.S. counties with abortion providers. H.R. Rep. No. 306 at 8, 1994 U.S.C.A.A.N. at 705. This in turn has compelled the physicians who do perform abortions to travel periodically to underserved communities in neighboring states, as did the late Dr. David Gunn. See H.R. Rep. No. 306 at 7, 1994 U.S.C.A.A.N. at 704. For further support that obstructive and violent conduct targeting reproductive health clinics constitutes interference with interstate commerce to a degree sufficient enough to satisfy Lopez, see United States v. Wilson, 73 F.3d 675, 1995 WL 765450, at *2-13 (7th Cir. 1995) and Cheffer v. Reno, 55 F.3d 1517, 1520 (11th Cir. 1995) wherein the post-Lopez constitutionality of the FACE Act was upheld.

 Furthermore, it can hardly be doubted that the specific act of a butyric acid attack against a medical clinic is an activity which, through repetition, has a substantial effect on interstate commerce; Congress found as much in considering the FACE Act. See H.R. Rep. No. 306 at 9, 1994 U.S.C.A.A.N. at 706 (57 butyric acid attacks against clinics in 1992 with estimated cleanup costs of $ 500,000). The court is of the opinion that these congressional findings respecting the effect upon commerce of antiabortion violence supports the conclusion that the government has proven a sufficient nexus with interstate commerce to invoke federal jurisdiction in this case.

 Because a rational juror could have readily found that the defendants' conduct interfered with interstate commerce, the court will not disturb their verdict on this ground.

 2. "Obtaining" Property

 Defendant Arena argues that the facts proven by the government do not constitute "obtaining" of property within the meaning of the Hobbs Act. Defendant posits that "if he [the extorter] doesn't control the property, he doesn't exercise dominion over that property, he doesn't violate the statute." Transcript of Motions, Exh. A attached to Wentworth Mem. of Law, Doc. 74, at 6. Arena does not claim that the benefit must accrue to the extorter, id. at 8, 9, but that the benefit must at least be diverted to someone else by the extorter, id. at 10. Arena maintains that the "obtaining" must be done with a "larcenous intent." Id. at 7. This argument, that a defendant must have the specific intent to steal in order to be convicted of Hobbs Act extortion, is premised on the notion that terms in the Hobbs Act must be defined by reference to the New York extortion statute from which the federal law was derived. Id. at 6-7. Defendant Wentworth joins these arguments, arguing that the mere destruction or deprivation of property is not the obtaining of property. Id. at 25.

 The court starts from the uncontested precept that the right to conduct a lawful business free from threats and violence is property within the meaning of the Hobbs Act. Town of West Hartford v. Operation Rescue, 915 F.2d 92, 101 (2d Cir. 1990), cert denied sub nom. Syversen v. Summit Women's Ctr. West, Inc., 126 L. Ed. 2d 144, 114 S. Ct. 185 (1993); United States v. Tropiano, 418 F.2d 1069, 1077 (2d Cir. 1969), cert. denied, 397 U.S. 1021, 25 L. Ed. 2d 530, 90 S. Ct. 1262 (1970). Like other terms in the Act, "obtaining" is given a broad definition. West Hartford, 915 F.2d at 101. For instance, an extorter need not receive the benefit of his conduct. United States v. Green, 350 U.S. 415, 420, 100 L. Ed. 494, 76 S. Ct. 522 (1956); United States v. Clemente, 640 F.2d 1069, 1079-80 (2d Cir.), cert. denied, 454 U.S. 820 (1981).

 But defendants argue that the property must flow to someone; the intent must be larcenous, not merely mischievous. Transcript of Motions, Exh. A attached to Wentworth Mem. of Law, Doc. 74, at 6. Defendant Arena relies upon a number of cases for this mens rea requirement -- not only in his post-trial motions, but in his pretrial motions and charge conference arguments. See id. at 6-7; Arena Mem. of Law in Support of Request to Charge, Doc. 85, at 4. The court has examined these authorities and found them fatally distinguishable. United States v. Nedley, for instance, stands for the proposition that robbery under the Hobbs Act requires the specific intent to steal. 255 F.2d 350, 357 (3d Cir. 1958). The court has no quarrel with that contention, since the instant case involves extortion. *fn4" Similarly, United States v. Evans concerned extortion under color of official right, not extortion by force or fear. Compare, e.g., 504 U.S. 255, 261 (1992) ("Congress has unquestionably expanded the common-law definition of extortion to include acts by private individuals pursuant to which property is obtained by means of force, fear, or threats.") with id. at 263-64 ("Although the present statutory text is much broader than the common-law definition of extortion because it encompassed conduct by a private individual as well as conduct by a public official, the portion of the statute that refers to ...

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