U.S. v. Poulos, 80-1574

• Decision Date: 07 January 1982
• Docket Number: No. 80-1574,80-1574
• Citation: 667 F.2d 939
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Dan POULOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 939

667 F.2d 939

UNITED STATES of America, Plaintiff-Appellee, v. George Dan POULOS, Defendant-Appellant.

No. 80-1574.

United States Court of Appeals Tenth Circuit.

Argued Sept. 30, 1981.

Decided Jan. 7, 1982.

Bryson E. Mills, Wichita, Kan., for defendant-appellant.

Jackie N. Williams, Asst. U. S. Atty., Wichita, Kan. (James P. Buchele, U. S. Atty., Wichita, Kan., with her on the brief), for plaintiff-appellee.

Before SETH, Chief Judge, and HOLLOWAY and SEYMOUR, Circuit Judges.

SETH, Chief Judge.

Defendant George Dan Poulos appeals his jury conviction of conspiracy to maliciously damage or destroy, by means of an explosive, a building and personal property therein used in interstate commerce, and of malicious damage or destruction of that same building and personal property by explosive in violation of 18 U.S.C. § 844(i).

The two-count indictment charged the defendant and Mr. Kim T. Kilgore with conspiracy to violate and substantively violating 18 U.S.C. § 844(i) by attempting to destroy a building at 917 East Harry Street, Wichita, Kansas, by means of an explosive. That property was then being used by Home Living, a business undisputedly affecting interstate commerce. This alleged illegal activity is prohibited under the Organized Crime Control Act of 1970. Specifically, 18 U.S.C. § 844(i) imposes penalties on "(w)hoever 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."

The office and its contents were damaged by fire on July 28, 1976. In February 1979 John Douglas Kralik became an informant and admitted to federal officials that he was responsible for the 1976 fire at Home Living. He related that he was solicited by defendant Poulos to destroy an office within that building. Kim T. Kilgore had previously contacted defendant Poulos and represented that he owned a rental business similar to Home Living. He told the defendant that the owner of Home Living was a former employee of his who had taken some of Mr. Kilgore's files to set up Home Living. He told the defendant he would pay $750.00 for the return or destruction of the files. Thereupon Mr. Poulos contacted John Kralik who attempted the job.

John Kralik testified that he stuffed styrofoam into two glass two-liter Cola bottles and filled the bottles with gasoline. Upon breaking into Home Living through the back door he put one bottle down in the center of the room and began pouring the contents of the second bottle around the very small back room of the two-room office. After almost emptying the first bottle the gas was ignited by the pilot light of a water heater and as the witness said "it went whoom." Mr. Kralik escaped from the building by jumping through the plate glass front door. John Kralik also testified he had taken along some fire starters, "you know, they've got a little fuse on the end of them, and I was going to put a cigarette on the end, and when the cigarette burned down it would ignite the fuse and this thing would flare and set the fumes off."

After indictment and upon motions of the government and the two defendants, Mr. Poulos and Mr. Kilgore, the case was severed and the defendants were to be tried separately. Just prior to his trial Mr. Kilgore pled guilty to misprision of felony, and he agreed to testify at the trial of Mr. Poulos, which he did.

At defendant's trial the jury returned a verdict of guilty on both counts. He now appeals his conviction. He claims the trial court should have struck down the indictment or granted judgment of acquittal because the portion of 18 U.S.C. § 844(j) relied on by the prosecution and set out in the jury instructions is void for vagueness. In its entirety 18 U.S.C. § 844(j) read:

"(j) For the purposes of subsections (d), (e), (f), (g), (h), and (i) of this section, the term 'explosive' means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuzes (other than electric circuit breakers), detonators, and other detonating agents, smokeless powders, other explosive or incendiary devices within the meaning of paragraph (5) of section 232 of this title, and any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion."

Paragraph (5) of 18 U.S.C. § 232 read:

"(5) The term 'explosive or incendiary device' means (A) dynamite and all other forms of high explosives, (B) any explosive bomb, grenade, missile, or similar device, and (C) any incendiary bomb or grenade, fire bomb, or similar device, including any device which (i) consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and (ii) can be carried or thrown by one individual acting alone."

The portion of 18 U.S.C. § 844(j) with which the court instructed the jury and which defendant claims is unconstitutionally vague follows in the context of the instruction given the jury:

"You are...