U.S. v. Stackpole, s. 85-1054

• Decision Date: 13 February 1987
• Docket Number: 85-1273,Nos. 85-1054,s. 85-1054
• Citation: 811 F.2d 689
• Parties: 22 Fed. R. Evid. Serv. 780 UNITED STATES of America, Appellee, v. Donald Francis STACKPOLE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Ray J. NORTON, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 689

811 F.2d 689

22 Fed. R. Evid. Serv. 780

UNITED STATES of America, Appellee, v. Donald Francis STACKPOLE, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Ray J. NORTON, Jr., Defendant, Appellant.

Nos. 85-1054, 85-1273.

United States Court of Appeals First Circuit.

Argued Nov. 5, 1986.

Decided Feb. 12, 1987.

As Amended Feb. 13, 1987.

Susan M. Marshall, by appointment of the Court, with whom Marshall, Rosen & Marshall, Boston, Mass., was on brief, for Donald Stackpole.

Harry C. Mezer, P.C., Boston, Mass., by appointment of the Court, for Ray J. Norton, Jr.

Ralph D. Gants and Gary S. Katzmann, Asst. U.S. Attys., with whom Robert S. Mueller, III, U.S. Atty., and Mark E. Robinson, Asst. U.S. Atty., Boston, Mass., were on briefs, for appellee.

Before CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and PIERAS, ^* District Judge.

TORRUELLA, Circuit Judge.

These consolidated appeals follow from the convictions of appellants Donald Stackpole and Ray Norton, Jr. in separate trials relating to their involvement in an arson conspiracy that set over 200 fires in the Boston area from 1982 to 1984. Appellants raise a number of objections to alleged errors by the trial judge in their respective trials, none of which merit reversal.

I. The Arson Ring

The arson conspiracy began in late 1981 when a group of "sparkies" ¹ decided to employ unusual and illegal means to increase public funding for firefighting and police protection in Massachusetts. They began with vandalism and nuisance fires, breaking windows and setting dumpsters on fire. When these acts failed to attract attention, they escalated to two, three and four alarm fires, torching abandoned buildings, factories, and even a lumberyard.

To start the fires the group used a time delay incendiary device they called "La Bomba." La Bomba consisted of a ziplock plastic bag filled with Coleman lantern fuel and placed in a paper bag stuffed with tissue. A lit cigarette threaded through a matchbook, set inside the bag, provided the fuse. The cigarette burned down to the matchbook, which flared up and lit the tissue. The burning tissue then melted the plastic bag, releasing the fuel, and started the blaze.

Donald Stackpole joined the group at the beginning, but apparently did not share its goal of promoting public funding; he thought firefighters were overpaid and underworked and merely wanted to harass them. He did share, however, the group's fascination with fires. Ray Norton, Jr. came into the group's confidence in June, 1982, after the vandalism and nuisance fire stage. Norton, a ten year veteran of the Boston Fire Department, was angered by the cuts in public funding which had led to layoffs in his department. While he never set a fire, Norton offered the group support and advice. As the government showed at trial, on at least three occasions Norton recommended to the group the burning of specific buildings. Also, as a member of the Fire Department, Norton was able to track the activities of the arson squad and was thus able to protect the group from detection by the authorities.

The conspiracy unravelled when one member, Robert Groblewski, appeared on a T.V. news film of a major fire brandishing a revolver. After observing this bizarre behavior, the arson squad tracked him down, and he ultimately confessed. Groblewski then cooperated with the government in return for a light sentence recommendation. His cooperation included the tape recording of plans by Stackpole and others to spirit him out of Massachusetts. Eventually all the members of the conspiracy, except Stackpole and Norton, pled guilty. Four of them testified against Stackpole and two against Norton.

After thirteen days of trial, the jury convicted Stackpole of conspiracy to set the fires, eight counts of the making and possession of an unregistered explosive device, five counts of the arson of an interstate facility by means of fire and explosive and, for his involvement in activities to hide the arson conspiracy, two counts of the attempting to obstruct justice and of conspiracy to obstruct justice. The judge sentenced him to 40 years imprisonment. Norton was later convicted, after a 17 day trial, of conspiracy to commit arson and to manufacture unregistered incendiary devices, arson of an interstate facility, and perjury before the grand jury, for which he received a sentence of 6 years imprisonment. Both appealed to this court.

II. The Stackpole Appeal

Stackpole raises four issues on appeal. First, he claims that La Bomba was not an explosive device. Second, he argues that the joinder of the arson and related counts with the obstruction of justice counts was prejudicial. Third, he challenges the trial court's ruling limiting the cross examination of an investigative agent of the Bureau of Alcohol, Tobacco and Firearms as having prevented him from demonstrating bias. And finally, he asserts that the admission of a taped interview, in which he refused to take a lie detector test, was incurably prejudicial.

A. La Bomba

As in effect at the time of the conspiracy's earlier fires, Federal law prohibited arsons of property only when the arson was committed "by means of an explosive." 18 U.S.C. Sec. 844(i). ² The Federal arson statute defined "explosive" in three ways:

1. "gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electric circuit breakers), detonators, and other detonating agents, smokeless powders ...:"

2. "any chemical compounds, mechanical mixture, or device that contains any oxiding 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;" or

3. "other explosive or incendiary devices within the meaning of paragraph (5) of section 232 of this title."

18 U.S.C. Sec. 844(j) (emphasis supplied). 18 U.S.C. Sec. 232(5) defines an "explosive or incendiary device" as

"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."

La Bomba meets the definition of incendiary devices. The ziploc bag filled with Coleman lantern fluid constitutes "a breakable container including a flammable liquid." The cigarette threaded through a matchbook and the tissue paper constitute "a wick composed of any material which, when ignited is capable of igniting such flammable liquid." And, La Bomba "can be carried ... by one individual acting alone." Accordingly, it was an explosive device within the meaning of 18 U.S.C. Sec. 844(j) at the time of all the fires and, therefore, its use was a federal offense.

B. Joinder of the Arson-Related Counts with the Obstruction of Justice Counts

Before trial Stackpole moved for a severance of the arson-related counts from the obstruction of justice counts under Fed.R.Crim.P. 14. ³ On appeal he seeks to add a Fed.R.Crim.P. 8(a) ⁴ argument as well. "This is too late, ... at least in the absence of plain error, but there was no error under either rule." United States v. Barbosa, 666 F.2d 704, 707 (1st Cir.1981).

Rule 8(a) permits joinder of offenses if they "are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." In this case, the joined counts charge two distinct conspiracies, one to commit arson and the other to obstruct prosecution for that arson. While the arson and obstruction of justice activities were sufficiently separable to constitute two conspiracies, they were, nonetheless "connected together" and part of "a common scheme or plan." The second conspiracy was formed to protect the first from prosecution. See United States v. Berardi, 675 F.2d 894, 900-01 (7th Cir.1982) (joinder of obstruction of justice count with mail fraud and extortion counts).

Offenses properly joined under Rule 8 may nonetheless be severed under Rule 14 if a party can "make a 'strong showing of prejudice' likely to result from a joint trial." United States v. Luna, 585 F.2d 1, 4 (1st Cir.), cert. denied, 439 U.S. 852, 99 S.Ct. 160, 58 L.Ed.2d 157 (1978) (quoting Sagansky v. United States, 358 F.2d 195, 199 (1st Cir.1963)). The standard of review for denial of a Rule 14 motion is abuse of discretion. See id. Here Stackpole has not demonstrated sufficient prejudice.

Were the counts severed, substantially the same evidence would have been admitted in both resulting trials. In a trial on the arson and related charges, the obstruction of justice acts would have been admissable to show consciousness of guilt. See United States v. O'Connell, 703 F.2d 645, 649 (1st Cir.1983). And in a trial on the obstruction of justice counts, the arson activities would have been admissible to show motive. See United States v. Benz, 740 F.2d 903, 912 (11th Cir.1984). Appellant's contrary claim, that the jury was so confused by the joinder that they were unable to consider each count separately, is conclusory and, in any event, contradicted by the verdict the jury reached. The jury acquitted Stackpole on one arson related count and on one obstruction of justice related count, while convicting him of the remaining fifteen counts.

C. Cross Examination of Agent Miller

At trial, the government called Special Agent Wayne Miller, of the Bureau of Alcohol, Tobacco and Firearms ("ATF"), to testify about the ATF investigation of the arsons. Stackpole attempted to cross examine Agent Miller regarding organizational problems and funding levels of the ATF. This questioning, Stackpole claims, would have revealed that the Bureau was under considerable pressure to solve ...