A man convicted of crashing a van through the door of an abortion clinic demanded to be locked up immediately today after being sentenced to 10 months in prison and ordered to pay about $8,000 in restitution.Frank Lafayette Bird, who could have remained free for several weeks before reporting to prison, plans an appeal that he hopes will end with a U.S. Supreme Court ruling that the Freedom of Access to Clinic Entrances Act is unconstitutional.
"You want to go in today?" U.S. District Judge David Hittner asked this morning.
"Yes sir. I'm ready now," Bird, 64, replied.Assistant U.S. Attorney Bob Stabe said it is rare that a defendant asks to be locked up immediately.
Bird, who lives in southeast Houston, was free on a $50,000 unsecured bond before his sentencing and Stabe said he would not have opposed allowing him to voluntarily surrender.
Hittner sentenced Bird to the maximum allowed under federal sentencing guidelines for violating the FACE Act, noting that Bird had served a year in prison for throwing a bottle at the windshield of a doctor's rental car in 1994 at another clinic.
The judge ordered Bird to pay the clinic $7,964 in restitution.
Bird's attorney, Deputy Public Defender Brent Newton, declined to comment, but told Hittner in a previous hearing that his client intends to appeal.
Hittner found Bird guilty, in a 20-minute bench trial in November, of ramming a delivery van into the Houston Planned Parenthood Clinic on March 7, 2003.
Now that Bird has been sentenced, he can appeal and mount his second challenge to the FACE Act.
Newton argued successfully before U.S. District Judge Kenneth Hoyt in August 2003 that the charges against Bird should be dismissed because the passage of the FACE Act exceeded Congress' authority under the commerce clause of the Constitution.
The commerce clause, which gives Congress the right to regulate commerce across interstate borders, is the basis for much national legislation.
The government appealed Hoyt's ruling and a three-judge panel of the 5th U.S. Circuit Court of Appeals reversed it in February 2005, sending the case back for a new trial. The full 5th Circuit Court upheld the panel's decision and the U.S. Supreme Court refused to hear Bird's appeal.
The case was transferred to Hittner's court after Hoyt recused himself, saying he disagreed with the appeals court and couldn't follow its ruling.
President Bush's newest appointee to the Supreme Court, Samuel Alito, replaced moderate Sandra Day O'Connor, tipping the court to the right.
That may not help Bird, since O'Connor voted with dissenting conservatives on the last case challenging Congress' authority under the commerce clause.
In that case – Gonzales v. Raich, decided in June 2005 – the court ruled that the commerce clause gives Congress the right to regulate the cultivation of marijuana for medical use.
