WILLIAM E. DOYLE, Circuit Judge.
On June 19, 1978, the above-named defendants were jointly indicted by a grand jury in the Eastern District of Oklahoma. The indictment had four counts. Count I charged that on April 1, 1978, and continuing to May 23,1978, the defendants willfully and knowingly entered into an agreement, combination and conspiracy to commit the offense of willfully and maliciously destroying a vehicle by explosives, a pickup truck, the property of State District Judge Lynn Burris of Cherokee County, Oklahoma, which vehicle was used regularly as part of an activity affecting interstate commerce, contrary to 18 U.S.C. § 844(i) and 18 U.S.C. § 2. It was further alleged that the object of the conspiracy was to destroy the truck when Judge Burris was operating it, thereby causing his death.
The overt acts in connection with Count I are that the defendants hired a person to do the actual bombing. On May 22, the date of the hiring, the defendants took this person to the residence of Judge Burris and pointed out the pickup truck and said that enough explosives should be used to destroy the vehicle and kill the judge. An additional overt act was entering into a contract, with the individual employed, to pay him $1,000 for killing Judge Burris. A further overt act alleged was that on May 23, 1978, defendant Russell gave the individual employed $20.00 as expense money for a down payment on the $1,000.00.
Count II charged that on May 23, the defendants willfully and knowingly attempted to damage and destroy, by means of an explosive, a vehicle, a pickup truck of Judge Burris, which vehicle was regularly used in an activity affecting interstate commerce.
Counts III and IV were the same except that they were separate counts as to Russell and Monholland. Count III alleged that on [1313]*1313the 22nd of May, Russell attempted to receive in interstate commerce an explosive, defined in 18 U.S.C. § 844(j), with knowledge that the explosive would be used to kill the judge, in violation of 18 U.S.C. § 844(d).
Count IV, with the same language as that in Count III, charged Monholland with the act of attempting to receive explosives in interstate commerce.
This case originated with the Bureau of Alcohol, Tobacco and Firearms, which agency received information that the defendants were trying to purchase a case of dynamite, dynamite caps and primacord. On May 22, 1978, an agent of the Bureau, one Loyd S. Cobb, contacted the defendant Monholland for the purpose of buying a pickup truck, supposedly, and was advised by Cobb that he was a blaster for an area construction company. On learning that Cobb was supposedly connected with explosives, Monholland asked him whether he was completely honest and was told that he (Cobb) would do whatever was necessary in order to earn money, whereupon Monholland said that he might have some work for Cobb to do. Cobb inquired as to its nature and was told that the target was a district judge. Cobb did not quote a price at that time. Monholland and Cobb drove to the residence of defendant Russell. Monholland talked to Russell and the two of them talked to Cobb about killing two district judges. He then told Cobb that he wanted him to look at a pickup truck. Russell led them to the residence of Judge Burris and they pointed out the judge’s pickup. Russell indicated at that time that it was his wish to have the pickup truck blown up.
On this occasion Cobb stated that his fee for each of the contracts would be $1,000.00. He also showed the defendants simulated dynamite. They asked how much the dynamite was and Cobb answered that it was not for sale. Monholland stated that the contract fee would be paid to Cobb after the job was completed. He also said that he might have the money the next night. Russell agreed to this and they said that they might have two more jobs for Cobb to do at the same time. The defendants said that in addition to blowing up Judge Burris’s pickup truck, they wanted to be sure that the judge was killed in connection with it. All three returned to Russell’s residence and the defendants then invited Cobb to return the next day at which time they would possibly have the money and further jobs for him to do.
The three met again on May 23, 1978, at which time Monholland said that he was trying to get the money and that meanwhile Cobb could have a rifle as a bonus if he would wait. Russell said that he did not have the money on hand and would have to borrow it or rustle some cattle to get it. Both Russell and Monholland gave Cobb a $20.00 bill for gasoline money on account. Cobb agreed to hold the money. Following this May 23 conversation, Monholland and Russell were arrested by the Bureau of Alcohol, Tobacco and Firearms, and after that they were indicted by the grand jury on the charges that are the subject of the appeal. At trial the evidence showed that each of the two defendants had personally inspected and handled the “dynamite.”
Thankfully, this matter failed to materialize in any significant way. When it reached the payment of money stage, it lost all momentum. So the conspiracy and attempt did not proceed beyond extensive conversations.
The points advanced by the defendants are:
First, that the court erred in admitting tape recordings of conversations by the agent with the defendant because of their lacking evidentiary foundation; also, that the tapes were inaudible; thirdly, that there had been no opportunity to examine them before trial; and, fourthly, that they were not admissible because they were made without the defendants’ consent.
Second, that the venue was improper because of the excessive newspaper coverage that was given to the case.
Third, that there was no proof of jurisdiction because the transaction was intrastate.
[1314]*1314Fourth, that even though entrapment was not interposed at the trial, it could be relied on as an issue of law on this appeal.
We conclude that the transaction is not one which has any effect on interstate commerce, and therefore there was a lack of federal jurisdiction.
THE JURISDICTION QUESTION
The section of the statute under which the prosecution was undertaken, 18 U.S.C. § 844(i), provides as follows:
(i) whoever maliciously damages or destroys, or attempts to damage or destroy, by means of an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both; and if personal injury results shall be imprisoned for not more than twenty years or fined not more than $20,000, or both; and if death results shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment as provided in section 34 of this title.
Free access — add to your briefcase to read the full text and ask questions with AI
WILLIAM E. DOYLE, Circuit Judge.
On June 19, 1978, the above-named defendants were jointly indicted by a grand jury in the Eastern District of Oklahoma. The indictment had four counts. Count I charged that on April 1, 1978, and continuing to May 23,1978, the defendants willfully and knowingly entered into an agreement, combination and conspiracy to commit the offense of willfully and maliciously destroying a vehicle by explosives, a pickup truck, the property of State District Judge Lynn Burris of Cherokee County, Oklahoma, which vehicle was used regularly as part of an activity affecting interstate commerce, contrary to 18 U.S.C. § 844(i) and 18 U.S.C. § 2. It was further alleged that the object of the conspiracy was to destroy the truck when Judge Burris was operating it, thereby causing his death.
The overt acts in connection with Count I are that the defendants hired a person to do the actual bombing. On May 22, the date of the hiring, the defendants took this person to the residence of Judge Burris and pointed out the pickup truck and said that enough explosives should be used to destroy the vehicle and kill the judge. An additional overt act was entering into a contract, with the individual employed, to pay him $1,000 for killing Judge Burris. A further overt act alleged was that on May 23, 1978, defendant Russell gave the individual employed $20.00 as expense money for a down payment on the $1,000.00.
Count II charged that on May 23, the defendants willfully and knowingly attempted to damage and destroy, by means of an explosive, a vehicle, a pickup truck of Judge Burris, which vehicle was regularly used in an activity affecting interstate commerce.
Counts III and IV were the same except that they were separate counts as to Russell and Monholland. Count III alleged that on [1313]*1313the 22nd of May, Russell attempted to receive in interstate commerce an explosive, defined in 18 U.S.C. § 844(j), with knowledge that the explosive would be used to kill the judge, in violation of 18 U.S.C. § 844(d).
Count IV, with the same language as that in Count III, charged Monholland with the act of attempting to receive explosives in interstate commerce.
This case originated with the Bureau of Alcohol, Tobacco and Firearms, which agency received information that the defendants were trying to purchase a case of dynamite, dynamite caps and primacord. On May 22, 1978, an agent of the Bureau, one Loyd S. Cobb, contacted the defendant Monholland for the purpose of buying a pickup truck, supposedly, and was advised by Cobb that he was a blaster for an area construction company. On learning that Cobb was supposedly connected with explosives, Monholland asked him whether he was completely honest and was told that he (Cobb) would do whatever was necessary in order to earn money, whereupon Monholland said that he might have some work for Cobb to do. Cobb inquired as to its nature and was told that the target was a district judge. Cobb did not quote a price at that time. Monholland and Cobb drove to the residence of defendant Russell. Monholland talked to Russell and the two of them talked to Cobb about killing two district judges. He then told Cobb that he wanted him to look at a pickup truck. Russell led them to the residence of Judge Burris and they pointed out the judge’s pickup. Russell indicated at that time that it was his wish to have the pickup truck blown up.
On this occasion Cobb stated that his fee for each of the contracts would be $1,000.00. He also showed the defendants simulated dynamite. They asked how much the dynamite was and Cobb answered that it was not for sale. Monholland stated that the contract fee would be paid to Cobb after the job was completed. He also said that he might have the money the next night. Russell agreed to this and they said that they might have two more jobs for Cobb to do at the same time. The defendants said that in addition to blowing up Judge Burris’s pickup truck, they wanted to be sure that the judge was killed in connection with it. All three returned to Russell’s residence and the defendants then invited Cobb to return the next day at which time they would possibly have the money and further jobs for him to do.
The three met again on May 23, 1978, at which time Monholland said that he was trying to get the money and that meanwhile Cobb could have a rifle as a bonus if he would wait. Russell said that he did not have the money on hand and would have to borrow it or rustle some cattle to get it. Both Russell and Monholland gave Cobb a $20.00 bill for gasoline money on account. Cobb agreed to hold the money. Following this May 23 conversation, Monholland and Russell were arrested by the Bureau of Alcohol, Tobacco and Firearms, and after that they were indicted by the grand jury on the charges that are the subject of the appeal. At trial the evidence showed that each of the two defendants had personally inspected and handled the “dynamite.”
Thankfully, this matter failed to materialize in any significant way. When it reached the payment of money stage, it lost all momentum. So the conspiracy and attempt did not proceed beyond extensive conversations.
The points advanced by the defendants are:
First, that the court erred in admitting tape recordings of conversations by the agent with the defendant because of their lacking evidentiary foundation; also, that the tapes were inaudible; thirdly, that there had been no opportunity to examine them before trial; and, fourthly, that they were not admissible because they were made without the defendants’ consent.
Second, that the venue was improper because of the excessive newspaper coverage that was given to the case.
Third, that there was no proof of jurisdiction because the transaction was intrastate.
[1314]*1314Fourth, that even though entrapment was not interposed at the trial, it could be relied on as an issue of law on this appeal.
We conclude that the transaction is not one which has any effect on interstate commerce, and therefore there was a lack of federal jurisdiction.
THE JURISDICTION QUESTION
The section of the statute under which the prosecution was undertaken, 18 U.S.C. § 844(i), provides as follows:
(i) whoever maliciously damages or destroys, or attempts to damage or destroy, by means of an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both; and if personal injury results shall be imprisoned for not more than twenty years or fined not more than $20,000, or both; and if death results shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment as provided in section 34 of this title.
Thus, it proscribes the damaging or attempting to damage or destroy “by means of an explosive, any building, vehicle * * used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce * * The statute therefore focuses primarily on property. The effect of personal injury is an aggravating factor which substantially increases the penalty which can be imposed. The indictment centers on the conspiracy to blow up the vehicle.
The government’s theory of the case is that the vehicle was used in interstate commerce or in an activity affecting interstate commerce. The indictment describes the judge’s pickup as a vehicle which is regularly used in and as a part of activity affecting interstate commerce. The statute does not go that far and it cannot be expanded. The prohibition of the statute is against use of explosives to damage or destroy a vehicle used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.
The evidence shows that Judge Burris, an Oklahoma state judge, serves a five-county judicial district and that he drives his pickup truck between his residence and the courthouse within his judicial district and within Oklahoma. He does not, of course, drive the truck interstate. There is not even the pretense that he does. The government argues in its brief, however, that it met its burden of establishing the required connection between interstate commerce at least to a de minimis extent. It also relies on the fact that the simulated explosive, a dummy stick of “dynamite” which was viewed by Russell and Monholland, had traveled in commerce. These simulated explosives were not, of course, explosives at all. We do not say that this fact is of any great consequence because the prosecution is not based on the interstate character of the explosives, simulated or real. It zeros in on the interstate character of the vehicle. The prosecution argues that Judge Burris testified about “numerous” aspects of his job as a judge which affected interstate commerce and about the use of that particular pickup truck and its contribution to these activities. This needs careful attention.
Judge Burris testified that in the course of his duties he customarily presides over divorce cases; cases involving enforcement of support orders under the Uniform Reciprocal Support Act; cases involving child custody, alimony and property divisions; cases in which parties and interests in other states are present; problems connected with fugitives and flight warrants; possession of stolen property, particularly automobiles, which have originated in other states; and also, traffic offenses in which the cars have come from other states. He testified that he traveled around the district holding court in his 1969 Ford pickup which was the object of the conspiracy described in the indictment. He further said that in traveling within the five-county jurisdiction, he used the United States highway system. His further testimony was that five days a [1315]*1315week he drove back and forth from his home to the local courthouse in the town of Tahlequah, where he lived, and that one or two days a month he traveled to other counties in order to hold court.
So, the question which we address is whether the handling of cases dealing with parties from other states causes the pickup truck in question (which was used to drive from home to court) to be used in interstate or in foreign commerce or any activity affecting interstate or foreign commerce. We conclude that this judicial activity does not cause the truck to affect commerce.
The history of 18 U.S.C. § 844(i) indicates that the commerce requirement contained therein is to be broadly construed. H.R.Rep.No.1549, 91st Cong., 2d Sess. (1970), reprinted in [1970] U.S.Code Cong. & Ad.News 4007, 4046-47, provides:
Section 844(i) proscribes the malicious damaging or destroying, by means of an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce. Attempts would also be covered. Since the term affecting [interstate or foreign] “commerce” represents “the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause,” NLRB v. Reliance Fuel Corp., 83 S.Ct. 312, 371 U.S. 224, 226, 9 L.Ed.2d 279 (1963), this is a very broad provision covering substantially all business property. While this provision is broad, the committee believes that there is no question that it is a permissible exercise of Congress authority to regulate and to protect interstate and foreign commerce. Numerous other Federal statutes use similar language and have been constitutionally sustained in the courts. [Citations omitted].
Although it is broad, it is not limitless and must bear some real relationship to commerce. The Congressional Committee Report said that notwithstanding the broadness, it was a permissible exercise of the congressional authority to regulate and to protect interstate and foreign commerce.
This court has said that the effect on interstate commerce may be de minimis in United States v. Schwanke, 598 F.2d 575 (10th Cir. 1979). The defendant there contended that the commerce element was not satisfied because he was not a person engaged in organized crime. The evidence, however, showed that the building destroyed included a cafe which purchased supplies in interstate commerce. The court, through Judge Barrett, said:
Congress has the power to punish the unlawful use of explosives under the Commerce Clause even though the effect on interstate commerce may be de minim-is. United States v. Sweet, 548 F.2d 198 (7th Cir. 1977), cert. denied, 430 U.S. 969, [97 S.Ct. 1653, 52 L.Ed.2d 361] (1977). In Sweet, supra, the court quoted extensively from the legislative history of § 844(i)
Id. at 578. In the Sweet case, cited in United States v. Schwanke, supra, the jury instruction required that the specific commerce facts be established beyond a reasonable doubt. It was held that this was proper, but that the commerce requirement was satisfied where one local tavern owner used explosives to destroy a local competitor’s tavern.
Other cases have held that the destruction of business property satisfies the commerce element of § 844(i), where it was shown that the business, that had used the destroyed building, received goods from out of state and had goods in the building at the time of the blast which were destined for sale in interstate commerce. United States v. Nashawaty, 571 F.2d 71, 75 (1st Cir. 1978). The government was not required to prove that the products present in the shop, at the time the blast took place, had originated out of state. Id.
In United States v. Keen, 508 F.2d 986, 990 (9th Cir. 1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975), there was evidence of an effect on interstate commerce based on the fact that the boat which exploded was used in commercial shipping and that the product, the catch of fish, was shipped in interstate commerce. [1316]*1316Thus, where a building or facility is used in a business at the time that it is destroyed, the facts frequently are held to fulfill the interstate commerce requirement of the statute, but a building lends itself to this finding more readily than does a vehicle.
We have examined United States v. Kaplan, 588 F.2d 71 (4th Cir. 1978), and United States v. Whitson, 587 F.2d 948 (9th Cir. 1978), prosecutions under § 844(i), supra. In one instance the defendant was convicted for the bombing of an automobile in the course of a lover’s quarrel. In Whitson, defendant blew up his own vehicle in an effort to create the belief that he had been killed. The commerce issue was not raised or weighed in either case.
The difficulty with the evidence in the case at bar is that it is very sketchy. The ultimate dependence is on the fact that a judge has handled various kinds of cases which involve parties who have come to Oklahoma in order to litigate. Such immigration may in some instances affect commerce, but this fact does not necessarily show such an effect. The vehicle in question was not even used on official business. It was used to transfer the judge to and from work. The important problem here is that movement to and from work is an activity which ordinarily has an existence independent from the work. It does not blend into and become a part of the career. If a connection is to be established between the vehicle and the work, it must be shown that there exists a nexus between the two activities. Here the activities are independent.
The evidence here is that the function of the truck is to get the judge back and forth, and if the truck fails he would find some other means to accomplish the trip. We say, then, that the truck is wholly immaterial as far as any commerce is concerned even if we assume that there is a commerce quality about what the judge does after he gets to court. It is not at all clear that what he does even resembles commerce. Accordingly, it is impossible to say that the truck affects commerce. Since it is divorced from the activity carried on in court, there is no legal relationship whereby one can say that the truck affects commerce. To so hold is to recognize as interstate commerce something less than what is de minimis. Our view has to be that, in law, the activity of the judge at the courthouse is remote from the use of the truck. The truck does not enter into the administration of justice in the slightest degree.
Finally, there is no indication in the statute that Congress, although it intended to have the statute broadly construed, intended that everybody and everything should be included. To so hold or to so construe the statute is to stretch the concept beyond its limit. Neither the district attorney nor the trial court can confer jurisdiction on the court where it does not exist. No doubt this incident and the prosecution stirred strong feelings in the community and general area. This, however, must not affect the decision of this court. If we are to perform judiciously, we must penetrate these factual problems and apply the law given to us by the Constitution and by the Congress, regardless of the policy factors which exist within a community. We must be aware continuously that a federal court is a court of limited jurisdiction. The state court, on the other hand, is not so limited. If jurisdiction is not shown to exist in federal court, the case necessarily fails and that situation is present here.
In view of the jurisdictional deficiency, we are powerless to take any action except reversal with directions to dismiss the case.
IT IS SO ORDERED.