Appeal by government under 18 U.S.C. § 3731 of dismissal of final count of seven-count indictment against defendants, charging them with conspiring in violation of 18 U.S.C. § 371 to "maliciously [damage] or [destroy] . . . by means of an explosive" a piano store "used in interstate . . . commerce or in any activity affecting interstate . . . commerce." 18 U.S.C. § 844(i). Mark A. Costantino, J., of the Eastern District of New York, dismissed this count on the ground that there could be no link to interstate commerce sufficient for federal subject matter jurisdiction because the piano store was a fictitious target proposed by a government informer.
Feinberg, Chief Judge, Oakes and Winter, Circuit Judges.
The government appeals under 18 U.S.C. § 3731 from the dismissal by Judge Mark A. Costantino of the United States District Court for the Eastern District of New York, 535 F. Supp. 257, of the final count of a seven-count indictment against defendants Anthony Giordano and Benito Guadagni. The first six counts charge Giordano with substantive federal offenses growing out of his alleged practice of arson for hire. Count Seven, the only count before us on this appeal, charges that Giordano and Guadagni violated 18 U.S.C. § 371 by conspiring maliciously to damage and destroy by means of an explosive a piano store "used in interstate commerce and in an activity affecting interstate commerce." The alleged objective of the conspiracy is a criminal offense under 18 U.S.C. § 844(i).
The appeal comes to us in an unusual procedural posture. The government moved before trial to obtain a ruling on the admissibility of testimony and on proposed jury instructions with regard to Count Seven. Defendants moved to dismiss this count, and the judge granted the motion. This appeal followed, and in the meantime trial on the other six counts has been delayed apparently because Guadagni is charged only in Count Seven. Defendants are on bail pending appeal. For reasons indicated below, we reverse the judgment of dismissal and remand Count Seven for trial. Because this criminal proceeding has already been delayed for a significant period of time, we order the mandate to issue forthwith.
Since Count Seven of the indictment was dismissed, we accept for purposes of this appeal the statement of the underlying facts given to us by the government, which is based on two hearings before the judge and the documents furnished to him. According to the government, the investigation in this case began when an informant told the FBI that defendant Giordano had previously arranged with others to have business premises destroyed by arson. The FBI decided to attempt to identify the arsonists, and for this purpose instructed the informant to get in touch with Giordano. To carry out an undercover operation, the informant needed a plausible story as to why he wanted arson committed. The FBI agents felt that "the best scenario" would be for the informant to seek destruction of the premises of a business that had a high cost inventory, was insured, and would be affected by the recession. The agents chose a piano store as the supposed target of the arson.
In April 1981, the informant contacted Giordano and met with him, secretly recording their conversations. At the first meeting, Giordano was told by the informant that he knew the owner of a piano store in Queens who was suffering business losses and would be interested in having his store "torched" in order to collect on the insurance. The story was false, although the informer did have in mind an actual piano store, whose approximate location he mentioned. Giordano was apparently eager to enter into an arrangement. He boasted of the stores he had destroyed recently and got down to business right away, seeking such details as what the insurance coverage was and whether the store had a rear entrance, a pull-down gate, an alarm and a sprinkler system. Giordano stated that he and his partner would do a professional job for a fee based on a percentage of the insurance policy, half paid before the arson and half the day after. Giordano described himself as follows:
I'm a maniac, I just . . . felt like burning a store down. The . . . guy was in there last week and I had an argument with the guy. So . . . him, I burned his store.
Giordano and the informant met again two days later, presumably to give Giordano the information he had requested and the exact address of the store. In order to protect innocent life and property, the informant was instructed to describe a fictitious store rather than the real one mentioned earlier. At this meeting, the informant told Giordano that the insurance policy was over $100,000 but that the store owner was "super paranoid" and needed reassurance that the job would be a "professional" one. Giordano emphasized that his proposed partner was "an experienced arsonist" and "strictly upper echelon". The informant insisted that he would have to meet Giordano's partner. Before the meeting ended, Giordano fixed the fee ($9,000) and the time (the coming Sunday night) for the crime.
The next day, Giordano introduced the informant to his partner "Benny", defendant Guadagni. Defendants assured the informant that they would "completely destroy" the store but again emphasized they needed specific information regarding the layout of the store. In turn, the informant promised to deliver half of the money the next night, along with the keys to the store and a plan of the interior. After Guadagni left, the informant told Giordano that he was satisfied with "Benny" and could deliver half of the fee right away. He proceeded to do so, counting out $4,500 and handing it to Giordano along with a set of keys and the supposed address of the store. Shortly after this meeting, defendants were arrested.
Defendants were indicted in May 1981, and the case was eventually set for trial in October.*fn1 Shortly before trial, the government sought rulings on the admissibility of the testimony of two experts and the propriety of certain proposed jury instructions that the government intended to request. The testimony of the experts was designed to show that all pianos have parts made outside New York so that any store selling pianos would be engaged in an activity that affects interstate commerce. The proposed jury instructions included the statement that in determining whether the target of the conspiracy was used in activities affecting interstate commerce, the jury should consider the facts as defendants believed them to be. The proposed instructions also stated that it is not a defense that "commission of the underlying crime, that is the destruction of the piano store, would have been impossible because the store did not exist."
Defendants countered with a motion to dismiss Count Seven of the indictment for lack of jurisdiction on the ground that the government's proposed proof would not establish a crime within the terms of the applicable statute. Relying heavily on our decision in United States v. Mennuti, 639 F.2d 107 (2d Cir. 1981), the judge granted the motion on the ground that "absent a specific identifiable parcel of property which was the target of the conspiracy, there is no sufficient link ...