U.S. v. Prevatte, s. 92-3370

• Citation: 16 F.3d 767
• Decision Date: 15 February 1994
• Docket Number: 92-3535,Nos. 92-3370,s. 92-3370
• Parties: UNITED STATES Of America, Plaintiff-Appellee, v. Russell PREVATTE and Robert A. Soy, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 767

16 F.3d 767

UNITED STATES Of America, Plaintiff-Appellee, v. Russell PREVATTE and Robert A. Soy, Defendants-Appellants.

Nos. 92-3370, 92-3535.

United States Court of Appeals Seventh Circuit.

Argued June 10, 1993.

Decided Feb. 15, 1994.

Andrew B. Baker, Jr. (argued), Ronald J. Kurpiers, Asst. U.S. Attys., Dyer, IN, for plaintiff-appellee.

Suzanne Philbrick (argued), Chesterton, IN, for defendant-appellant in No. 92-3370.

Robert D. Truitt (argued), Daniel R. Goeglein, Lyons & Truitt, Valparaiso, IN, for defendant-appellant in No. 92-3535.

Before ALDISERT, ^* CUDAHY, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Russell Prevatte and Robert Soy were convicted on fourteen counts of explosives and firearms violations arising from a bombing-burglary scheme that they led in conjunction with three other men. ¹ Among these convictions, Prevatte and Soy were found guilty of conspiracy to violate 18 U.S.C. Sec. 844(i), damaging a building in interstate commerce by means of an explosive. They were also convicted of a violation of 18 U.S.C. Sec. 844(i) that resulted in death. For this last count, the district court sentenced Prevatte and Soy to life. Prevatte and Soy appeal. We now affirm the convictions but remand for resentencing.

I BACKGROUND

A. Facts

Russell Prevatte, Douglas Bergner, and Jerry Williams were high school friends who, in 1990, began conducting a series of burglaries and attempted others. In 1991, a fourth individual, Robert Soy, joined this threesome. Prior to the bombing-burglary scheme at issue, some of the men had attempted burglaries, with varying degrees of success, at M & G Metals in Chicago, Illinois, a snack shop at Wolf Lake Park in Hammond, Indiana, the Whiting Motor Vehicle License Branch, Nick's Liquors in Hammond, the Oasis Liquor Store in Hammond, and a Hammond currency exchange. Descriptions of these crimes are pertinent to the issues raised on appeal and therefore are set forth in some detail in the following paragraphs.

First, in the summer of 1990, Russell Prevatte, Williams, and Bergner burglarized M & G Metals in Chicago, Illinois. They entered the building through a hole in the wall from an adjacent business. They stole scrap metal, calculators, office equipment, a computer and a shotgun. The second burglary took place at the Wolf Lake Park in Hammond in June 1991 where Williams was working as a security guard. Williams gave the key to Prevatte who went into the snack shop and stole $1000, about $400 of which was kicked back to Williams. Also in the summer of 1991, the Whiting Motor Vehicle License Branch was burglarized. The burglars entered the branch by cutting a hole through the floor from a crawl space that could be entered from the entrance to the upstairs apartments. The burglars tried but were unable to open the safe. Bergner, who lived at the time in an apartment above the License Branch, was told by Prevatte and Soy that they had burglarized it. ²

On October 26, 1991, Prevatte and Soy picked up Bergner and drove to Nick's Liquors in Hammond where they had previously dropped off a ladder. Prevatte and Soy had Bergner drop them off behind the building, along with an ax and tools. Bergner parked nearby and served as a lookout for Prevatte and Soy, with whom he communicated by way of hand-held radios. Prevatte and Soy chopped a hole in the roof through which they entered and removed a safe containing $20,000.

Near Thanksgiving, Bergner, Soy, Prevatte, and Prevatte's brother, Scott, attempted to burglarize the Oasis Liquor Store in Hammond. Scott Prevatte drove the truck; he dropped Prevatte and Bergner off and parked a few blocks away. They communicated by two-way radios. When a light came on in the apartment next door over Salvino's Restaurant, they believed that they had been discovered and fled. In their hurried flight, they left a sledge-hammer on the roof. A hacksaw blade was later found near the hole in the roof.

Prevatte and Soy then developed the idea of cutting the telephone lines to their burglary target to disable its alarm system. On December 3, 1991, after previously having cut the wires to a Hammond currency exchange, Prevatte, Soy, Bergner, and Scott Prevatte returned to the exchange and threw a rock through the window to see if the alarm would go off. Their police scanner revealed that the alarm did not summon the police. Later the police discovered that a rock had been thrown through a window and the telephone lines had been cut at the currency exchange.

As noted earlier, Williams attended the Indiana State Police Academy from October 1, 1991 through December 20, 1991. During that time, he was given information on explosives--how pipe bombs are made and how they are used as diversions for burglaries. He also checked out a book on these subjects from the Academy library. Williams mentioned the book to Prevatte. Prevatte later read the book and the two discussed the use of pipe bombs as diversions for burglaries.

On December 23, 1991, the first pipe bomb was detonated in an alley in Hammond. This bombing apparently was designed to gauge the response time of emergency services so that later burglaries could be timed accordingly. The bomb punctured a gas meter some fifty feet away; however, as far as the record discloses, it did not result in fire. The bombing also resulted in the death of Emily Antkowicz, an elderly woman who had come out of her house to a point about thirteen feet from the bomb and was hit by shrapnel. Prevatte and Soy later told Bergner that they had been working on pipe bombs as diversions for burglaries. Soy said that they had made one and tested it by throwing it in an alley in their neighborhood. He also told Bergner that a woman was killed by shrapnel when the bomb exploded. ³

On December 30, 1991, another bomb was detonated, causing a fire, near a bank of gas meters at Edo's Lounge in Highland, Indiana. When Soy, Prevatte, Bergner, and Scott Prevatte, who were listening on a police scanner, learned that the police and fire personnel had been dispatched to the scene of the second explosion, they attempted to break into an Aldi's grocery store in Highland. Although Prevatte and Soy stated that they had cut the telephone wires, the alarm sounded when Prevatte kicked in the door. This unexpected event thwarted their plans.

Three other bombings followed. The first of these was early on the morning of December 31, 1991, behind Salvino's Restaurant in Hammond, Indiana. The bomb damaged the restaurant and an adjacent house. The next bomb was set near gas meters of a multi-family apartment on Harrison Street in Hammond. The bomb caused extensive damage but did not result in a fire. In conjunction with this bombing, the defendants had planned to burglarize a currency exchange, but abandoned the plan because there was a great deal of traffic at the currency exchange. On January 5, 1992, a final bomb was set off near gas meters of apartments in Hammond, Indiana. Following this bombing, the group broke into an Aldi's grocery store, again through a hole in the roof. However, they were unsuccessful in their attempt to open the safe.

During the course of these bombings, Williams apprised the defendants of police investigations. As a probationary police officer, he could monitor police investigations and the deactivation of alarm systems. It was Williams who tipped off the defendants that Prevatte's name was first linked to the bombings. When this occurred, Williams advised the defendants to get rid of evidence and they did so. This brush with justice, however, did not put an end to the group's activities. On January 15th, there was a burglary of McDonald's, on January 23rd another burglary of McDonald's, on January 25th an attempt on a Service Merchandise in Chicago, on February 8th a burglary of a Taco Bell in Hammond, and on February 10th and 16th, the cutting of telephone cables in Hammond. These incidents were characterized by the use of walkie-talkies and a police scanner, the attempt to enter buildings using an ax, and the cutting of telephone wires. The group also committed a robbery of Colfax Liquors in February 1992. According to the record, Prevatte, Soy, and Scott Prevatte entered the store, battered the clerk, and took the cash register. The record reveals little else about this incident.

On February 16, 1992, the Prevatte brothers were arrested. A search of their truck recovered a police scanner, wire cutters, tin snips, gloves, hacksaws, axes, and flashlights. Scott was held in custody after his arrest and began to cooperate with police investigations. He told investigators where the bombing materials had been deposited and the agents recovered many of the articles described by Scott. In addition, Scott taped conversations with the other defendants. Finally, agents from the Bureau of Alcohol, Tobacco, and Firearms executed a search warrant for the cottage behind the Prevatte home. The search revealed much evidence pointing to the manufacture of pipe bombs that matched the fragments recovered from the bomb scenes.

B. District Court Proceedings

Based on this evidence, a grand jury returned a twenty-one count indictment against Prevatte and Soy. Specifically, the grand jury charged the defendants with the following offenses:

1. Conspiracy to maliciously damage or destroy property by means of an explosive under 18 U.S.C. Sec. 844(i).

2. Maliciously damaging or destroying property by means of an explosive under 18 U.S.C. Sec. 844(i). (Five counts)

3. Possession of a firearm in violation of 26 U.S.C. Secs. 5845(f), 5861(c) and 18 U.S.C. Sec. 2. (Ten counts)

4. Making a firearm in violation of 26 U.S.C. Secs. 5845(f), 5861(f) and 18 U.S.C. Sec. 2. (Five counts)

The indictment for the conspiracy not only alleged overt acts in furtherance of the bombings, but also stated that: "It was a further part of said conspiracy that RUSSELL 'RUSTY' PREVATTE and ROBERT A. SOY agreed to utilize a series of pipe bombings...