U.S. v. Wisdom

• Decision Date: 28 April 1976
• Docket Number: No. 75-1756,75-1756
• Citation: 534 F.2d 1306
• Parties: UNITED STATES of America, Appellee, v. Don Caswell WISDOM, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1306

534 F.2d 1306

UNITED STATES of America, Appellee, v. Don Caswell WISDOM, Appellant.

No. 75-1756.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 12, 1976.

Decided April 28, 1976.

R. Thomas Day, Asst. Federal Public Defender, Kansas City, Mo., for appellant; David R. Freeman, Federal Public Defender, Kansas City, Mo., on brief.

J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee; Bert C. Hurn, U. S. Atty., Kansas City, Mo., on brief.

Before BRIGHT and HENLEY, Circuit Judges, and REGAN, ^* District judge.

HENLEY, Circuit Judge.

Don Caswell Wisdom, defendant below, appeals from his conviction of having unlawfully sent through the mails in violation of 18 U.S.C. § 1716(a) a package containing an explosive device with the intent to kill or injure the addressee of the package, specifically Stephen Burgess of Columbia, Missouri. Following a jury finding of guilt, the trial judge ¹ sentenced the defendant to imprisonment for a term of four years but with the question of his parole eligibility being left to the discretion of the Parole Board as provided by 18 U.S.C. § 4208(a).

Section 1716(a) provides that explosive devices, inflammable materials and certain other items are non-mailable. If a person wilfully mails a package containing non-mailable material, he is guilty of a misdemeanor even though he had no intention of killing anyone or injuring any person or property. But, if he wilfully mails the package with the specific intent of killing or injuring another or of damaging the mails or property, he is guilty of a felony and may be punished by a fine of not more than $10,000.00 or by imprisonment for not more than twenty years, or both. The defendant was indicted on a felony charge, and that charge included the lesser misdemeanor offense that has been mentioned.

The defendant admits that he prepared the package referred to in the indictment on November 25, 1974, and that he mailed it to Burgess from Gurley, Nebraska late on the night of the date just mentioned. And the defendant admits that the package contained non-mailable material. He contends, however, that on the crucial issue of his intent when he mailed the package the government failed to make a submissible case, and that as far as the felony charge against him was concerned, he was entitled to a judgment of acquittal. Certain other contentions will be mentioned in due course.

The facts in the case, apart from the matter of the defendant's intent, are essentially undisputed, and many of them were covered by a stipulation that is not challenged here.

In the fall of 1974 defendant was a single man about thirty-eight years of age and with a substantial amount of college education. He was knowledgeable in the field of electrical wiring and had had a good deal of experience with explosives.

Throughout 1973 and most of 1974 defendant had been living in Evergreen, Colorado in a common law relationship with a woman named Pamela Zimbrick. In October, 1974 Zimbrick and a female companion went on a rather extended vacation. On their return journey they spent two nights in the home of Burgess who is a married man and the father of a young daughter. Apparently, Burgess had been acquainted closely with Zimbrick in years prior to his marriage. On the second night of the visit just mentioned Burgess and Zimbrick had sexual relations after Mrs. Burgess had gone to bed.

Apparently, prior to the Zimbrick vacation relations between her and the defendant had begun to deteriorate, and when she got back to Colorado on November 1, 1974 she told the defendant that she wanted him to leave the apartment that they had been occupying together. He complied with her request, but it seems that he saw her from time to time between that date and the time at which he prepared and mailed the package.

Defendant came to the conclusion that Zimbrick and Burgess had had relations, and that Burgess was planning to visit Zimbrick in Colorado over Thanksgiving. Defendant became depressed and was obviously jealous.

On or shortly before November 25, which was the Monday before Thanksgiving, defendant decided that he would mail a package to Burgess that would contain what would at least appear to be a bomb, and he admits that he intended to give Burgess a severe fright, and that he prepared a rather elaborate device to achieve that purpose.

The device contained in the package consisted principally of a one gallon can that had been filled at least partially with gasoline which when mixed with air is a highly explosive substance. The package also contained fragments of broken glass which would have been projected out of the package had an explosion taken place.

Inserted into or through the opening at the top of the can was a plastic bag into which had been placed the electrical coil of a cigarette lighter and a number of match heads. Attached to the coil were two wires that were in turn connected with three six-volt batteries arranged end to end. The ends of the wires were placed in contact with two ordinary mousetraps which were arranged in such a way that if they were set when an attempt was made to open the package, they would spring and close on the wires, thus completing an electrical circuit which would heat the lighter coil with the result that the match heads would ignite and cause the can to explode. the device was completed by screwing the can's cap down over the plastic bag and securing the cap in place.

The device was put into a cardboard box. Attached to this box was a greeting card which contained the suggestion that Burgess open the package in private as he was going to get "the surprise of his life." The box was taped shut and was then wrapped in brown paper, addressed and mailed.

The package was received at the post office in Columbia and was taken to the Burgess home. The Burgess family was out of town, and the package was left on the front porch. When the family returned to Columbia on or about December 1, 1974 the package was discovered and carried inside.

Burgess undertook to open the package. He removed the outer wrapping and discovered the card. He then partially opened the cardboard box and observed the glass, the mousetraps, the wires and the top of one of the batteries. At this point he became alarmed and called the Columbia Police Department. Personnel of that organization notified Post Office Inspectors, demolition experts were brought into the matter, and the device was dismantled.

When the contents of the package were closely examined, it was found that the batteries were dead, and that the mousetraps were in a closed position over the wires. It was also found that the plastic bag had a hole in it, that gasoline had leaked from the can into the bag, and that the match heads were floating in the liquid. While the batteries were dead, they gave the appearance of being new (defendant testified that he bought them new on November 25, and that they were alive at that time), and there was no evidence of any leakage of electrolyte from the batteries.

While as indicated, the defendant admits that he prepared an elaborate device to frighten Burgess, he claims that the device was prepared as a "hoax bomb," that it was never designed to explode, and that the defendant took extreme precautions to prevent an explosion. He testified that before assembling the device he wired the batteries in a "dead short" position to drain the current from the batteries, and that after the current had been drained he placed the mousetraps in closed position over the wires so as to keep...