United States v. Fontenot

• Decision Date: 07 September 1973
• Docket Number: No. 72-1738.,72-1738.
• Citation: 483 F.2d 315
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vernon J. FONTENOT et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

483 F.2d 315 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Vernon J. FONTENOT et al., Defendants-Appellants.

No. 72-1738.

United States Court of Appeals, Fifth Circuit.

August 14, 1973.

Rehearing Denied September 7, 1973.

COPYRIGHT MATERIAL OMITTED

Charles E. Floyd, Phenix City, Ala., Court-appointed, for Fontenot.

Glenn Zell, Atlanta, Ga., for Crawford and Warren.

William J. Schloth, U. S. Atty., Macon, Ga., for plaintiff-appellee.

Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Vernon J. Fontenot, William Tyrone Crawford, and Jesse James Warren appeal from their several convictions for conspiracy and for various substantive violations of federal statutes concerning explosive devices and related offenses. Appellants were charged under a five-count indictment, which we summarize. Count One charged that Fontenot, Crawford, and Warren, along with co-defendants and co-conspirators, Daniel Webster Anderson and Jackie Rodgers (a/k/a "Frog"), as well as Samuel Welderson Robinson (who was named as a co-conspirator but not indicted) conspired in violation of Title 18, U.S.C., Section 371, to violate numerous United States statutes dealing with the possession and registration of destructive devices.¹ Count Two charged that the five defendants knowingly and unlawfully made destructive devices without the filing of a written application form with the Secretary of the Treasury or his delegate in violation of Title 26, U.S.C., Sections 5822, 5861(f), and 5871. Count Three charged possession by the five defendants of destructive devices without payment of the required tax in violation of Title 26, U.S.C., Sections 5821, 5861(c), and 5871. Count Four charged the five defendants with possession of destructive devices that were not registered in the National Firearms Registration and Transfer Record in violation of Chapter 53, Title 26, U.S.C. and Title 26, U.S.C., Sections 5861(d) and 5871. Lastly, Count Five charged that Crawford, Warren, and Anderson knowingly attempted to maliciously damage and destroy by means of explosives the property of Columbus Productions, Columbus, Georgia, which property was then used in interstate commerce and in activities affecting interstate commerce, in violation of Title 18, U.S.C., Section 844(i).

Anderson and Rodgers pled guilty and testified for the government at the joint trial of Fontenot, Crawford, and Warren. The jury found Fontenot guilty under the conspiracy count, Count One and acquitted him as to Counts Two, Three and Four. Crawford and Warren were found guilty under Counts One, Two, Three and Four and acquitted as to Count Five. Fontenot was sentenced to five years confinement under Count One. Crawford and Warren were also sentenced to five years confinement under Count One. These two appellants were also sentenced to concurrent seven years confinement sentences on Counts Two, Three and Four, which sentences were directed to run consecutively to the five years imprisonment imposed under Count One.

Appellants specify twelve errors on appeal. Ten of these are raised by Fontenot alone, dealing largely with the adequacy of the lower court's jury instructions as to the evidence needed to link Fontenot with the conspiracy. Crawford and Warren attack their convictions on two grounds, questioning the inducements offered Rodgers and Anderson for their testimony and raising the sufficiency of the court's jury instructions as to possession of destructive devices, under Counts Three and Four. In addition, Crawford and Warren adopt Fontenot's assignments of error. We find that no reversible error was committed below and affirm as to each of the three appellants.

Sufficiency of the Evidence as to Conspiracy

Fontenot, Crawford, and Warren all moved for judgments of acquittal as to Count One at the close of the government's evidence and renewed these motions at the close of all the evidence. In Blachly v. United States, 5 Cir. 1967, 380 F.2d 665, in discussing the role of the trial court faced with a motion for judgment of acquittal, we noted:

"In considering the motion for judgment of acquittal, F.R.Crim.P. 29(a), the District Judge must consider the evidence in the light most favorable to the Government, McFarland v. United States, 5 Cir., 1960, 273 F. 2d 417; United States v. Carter, 6 Cir., 1963, 311 F.2d 934, together with all inferences which may reasonably be drawn from the facts. Cartwright v. United States, 10 Cir., 1964, 335 F. 2d 919. The determining inquiry is whether there is substantial evidence upon which a jury might reasonably base a finding that the accused is guilty beyond a reasonable doubt." 380 F.2d at 675.

Our function in determining whether the trial court should have granted appellants' motions for judgment of acquittal is discharged in substantially the same manner as we use in considering whether evidence is sufficient to support a verdict of guilt, Riggs v. United States, 5 Cir. 1960, 280 F.2d 949, 953, and the evidence must be considered taking the view most favorable to the Government, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L. Ed. 680, 704. We summarize the evidence produced below in order to weigh it in the light of these principles.

The government's case rested primarily on the testimony of the two co-conspirators, Daniel Anderson and Jackie Rodgers. Taken together, this testimony presented the following sequence of events.

On September 27, 1971, appellants and several others met at the Community Action Group (CAG) headquarters in Columbus, Georgia. Present were Fontenot, Warren, Crawford, Anderson, Rodgers, and others. The group at CAG had been engaged in the manufacture of a type of ornamental jewelry — belts resembling belts of machine gun ammunition but composed of empty cartridge cases. The cartridge cases used were supplied by piercing the red wax seal found at the end of blank cartridges and removing the gunpowder into cups.²

While at CAG headquarters, Crawford asked Fontenot if he could make a bomb with the gunpowder. Fontenot said he could and described the manufacture of a destructive device using a mixture of gunpowder and aviation gasoline. Fontenot, Crawford, Warren, Rodgers, and Anderson then took the accumulated gunpowder from CAG headquarters and went to Fontenot's apartment. There Fontenot produced additional gunpowder in a paper sack. The gunpowder from the two sources was poured into one of three mayonnaise jars obtained from Fontenot's kitchen. During this procedure, the group discussed setting fire to an unspecified building that night.³ Fontenot stated in reply to a question by Anderson that a method to heat the device was required to produce an explosion. Fontenot asked Weldon Robinson to secure the aviation gasoline previously discussed. Robinson left and returned about 45 minutes later with a five gallon can of J.P. 4, an aviation fuel obtainable at nearby Fort Benning, Georgia, where both Robinson and Fontenot were then stationed.⁴

When Robinson returned with the fuel, Robinson and Fontenot took Fontenot's automobile to a repair shop. Anderson, Rodgers, Crawford, and Warren then went into Fontenot's bathroom. Anderson placed the jars of gunpowder inside jugs, Rodgers held the jars over the sink, and Anderson poured J.P. 4 fuel into the jugs. Warren dried the jugs and passed the jugs to Crawford who placed them in paper sacks. These four conspirators then warmed some food in Fontenot's kitchen, and while sitting around decided that Columbus Productions in Columbus, Georgia, would be the best place to set a fire that evening. Shortly thereafter, Robinson and Fontenot returned and Crawford, Warren, Anderson, and Rodgers left Fontenot's apartment. The jugs containing gunpowder and aviation fuel remained at Fontenot's apartment.

Between 7:30 and 8:30 P.M. September 27, 1971, Anderson and Warren and Geneva Pitts, returned to Fontenot's apartment. Anderson changed from his brightly colored "disheka" into a long-sleeved dark shirt and put on a pair of Fontenot's sneakers. Anderson, Warren and Fontenot removed the firebombs from their position inside the door of Fontenot's apartment to the trunk of Geneva Pitts' automobile. These three, with Pitts, rode around for a time and went to the Mayfair Grill where they met Crawford. Crawford suggested taking the firebombs to the places where they were to be used later that night. Geneva Pitts, now accompanied by Diane Jones and Barbara Moore, left in her automobile which was being used to transport the bombs, followed by Anderson, Warren, and Crawford in Crawford's truck. Ultimately, the two vehicles stopped in front of Columbus Productions. Anderson removed the two bags containing firebombs from the trunk of Pitts' car and hid them within the building. All returned to the Mayfair.

About 11:00 P.M. Crawford decided it was time to start the fire at Columbus Productions. Crawford, Warren, and Anderson then left the Mayfair and drove to the vicinity of Columbus Productions. The two previously hidden firebombs were picked up and carried by Crawford and Warren. Crawford pulled the door back and Anderson slid in on his stomach; the two jugs were slid through the door immediately thereafter. Anderson's efforts to open an inner door were unsuccessful, and the noise he created attracted the attention of James McKinney, Production Manager of Columbus Productions. McKinney captured him. Anderson escaped from the building temporarily but was soon apprehended by Columbus police officers.

The elements of the federal crime of conspiracy, Title 18, U.S.C., Section 371, are (1) an agreement by two or more persons to combine efforts to achieve an illegal purpose (or to use illegal means to accomplish a legal purpose) and (2) an overt act by at least one of those persons in furtherance of the conspiracy. United States v. Falcone, 1940, 311 U.S. 205, 210, 61 S.Ct. 204, 207, 85 L.Ed. 128, 132; United States v. Warner, 5 Cir. 1971, ...