United States v. Peterson, 72-2480
| Decision Date | 01 May 1973 |
| Docket Number | No. 72-2480,72-2481.,72-2480 |
| Citation | 475 F.2d 806 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert W. PETERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Wayne B. CLIZER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
C. E. Monty Hormel (argued), Ephrata, Wash., for defendants-appellants.
Dean C. Smith, U. S. Atty. (argued), Carroll D. Gray, Asst. U. S. Atty., Spokane, Wash., for plaintiff-appellee.
Before KOELSCH and WRIGHT, Circuit Judges, and EAST,* District Judge.
Defendant-Appellant Robert W. Peterson (Peterson) was indicted on one count of violation of Title 26 U.S.C. Section 5845(a) and Section 5861(d) (National Firearm Act).
Defendant-Appellant Wayne B. Clizer (Clizer) and Peterson were jointly indicted on an additional count of violation of the same sections and together with others an additional count of violation of Title 18 U.S.C. Section 371 (Conspiracy).
Peterson was convicted on all three counts and sentenced to custody on each, the terms to run concurrently. Clizer was convicted on Counts II and III and likewise sentenced. Each appeals and is at liberty on bail. We affirm.
Section 5841—Registration of firearms.
(a) .. Secretary .. shall maintain a central registry of all firearms.
(b) .. Each manufacturer .. and maker shall register each firearm he .. makes.
Section 5845—Definitions.
For the purpose of this chapter—
(a) Firearm—The term "firearm" means (1) a shotgun having a barrel or barrels .. (Here follows through subparagraph (7) meticulous description of items of military ordnance and instrumentalities of crime.) .. and (8) a destructive device.
(f) Destructive Device—The term "destructive device" means (1) any .. incendiary, .. (A) bomb, (B) grenade .. or (F) similar device;
(3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) .. and from which a destructive device may be readily assembled. The term "destructive device" shall not include any device which is neither designed nor redesigned for use as a weapon;
The Grand Jury charges:
Count I
"In or about July 1970, .. at the James Thornton ranch .. , Peterson did knowingly, wilfully and unlawfully possess an incendiary and destructive device as the same is defined in 26 U.S.C. Section 5845(f) and 26 U.S.C. Section 5845(a)(7),1 to-wit: an object composed of segments of fusees with gunpowder and incendiary ingredients and rope fuses attached, and the combination of said segments, gunpowder, ingredients and fuses, which were designed and intended for use as such a device and from which said device might be readily assembled, not registered to him in the National Firearms Registration and Transfer Record in violation of Section 5861(d) of Title 26, United States Code."
In Count II the grand jury charged Peterson and Clizer and others not named as defendants of an additional crime in identical words set forth in Count I.
In Count III the grand jury charged that Peterson and Clizer with others "did unlawfully conspire, combine, confederate and agree with each other to commit offenses against the United States of America, that is: to knowingly, wilfully and unlawfully receive, possess, transfer and make incendiary and destructive devices as the same are defined in 26 U.S.C. Section 5845, to-wit: objects composed of segments of fusees with gunpowder and incendiary ingredients and rope fuses attached, and the combination of said segments, gunpowder, ingredients and fuses, which were designed and intended for use as such devices and from which said devices might be readily assembled; which would not be and were not registered to them or any of them in the National Firearms Registration and Transfer Record, which would not be and were not the subject of any application to the Secretary of the Treasury of the United States or his delegate, and for which no tax would be or was paid, in violation of 26 U.S.C. Section 5861; and in pursuance of said conspiracy and to effect the objects thereof; the said defendants performed the following overt acts, among others, to-wit:
4. In or about July, 1970 .. Peterson and .. Clizer ignited and demonstrated said incendiary and destructive devices at the Oscar Tschirky farm;
6. In or about July, 1970 .. Peterson, .. Clizer, Oscar Tschirky .. and three other persons met at the Oscar Tschirky potato warehouse and discussed the burning of haystacks with said incendiary devices in Franklin County on the same night as haystacks were to be burned in Grant County;"
(For brevity, the allegations of numbers 1, 2, 3, 5 and 7 additional overt acts are omitted.)
Peterson and Clizer assert the trial court erred in:
1) Failing to dismiss all counts in the indictment on the grounds that the respective counts allege and describe incendiary and destructive devices which do not fall within the purview of Section 5845 or any of those subdivisions or subclassifications or otherwise constitute "firearms" proscribed by the section;
2) Failing to dismiss the cause on the grounds that the government failed to prove the alleged incendiary or destructive device was in fact a firearm proscribed by the section;
3) Failing to grant the motion for a new trial or judgment of acquittal on the identical grounds asserted in assignment 2).
4) Giving its instruction number 9 to the jury on the grounds the instruction was fatally defective in defining the term destructive device, an erroneous statement of the law and tended to be confusing, misleading and prejudicial to Peterson and Clizer;
5) (a) Permitting the government the introduction or attempted introduction of evidence of other inflammatory well-publicized infamous events or crimes, distinct and separate to the crimes charged in the indictment and permitting evidence of malicious intent or "bad" motive to be introduced by the government regarding other matters of a prejudicial nature not necessary to proof of the crime charged and designed to show the appellants as "bad guys" or infamous personalities;
(b) Spotlighting and connecting the distinct and separate crimes of malicious acts not shown to have been perpetrated by the appellants;
6) Failing to individually and extensively examine each juror on voir dire for possible prejudice resulting from the wide-spread publicity and in exploring the background of each, failing to permit counsel to conduct such voir dire, where all or substantially all of the prospective jury panel admitted having been exposed to possible prejudicial wide-spread news media publicity concerning a well-known series of multiple arson or crimes, which the Court preliminarily informed the panelmen were related to the crimes charged in the indictment.
In July of 1970, Peterson, accompanied by Oscar Tschirky, came to the farm of James Thornton located near Mesa in Franklin County, Washington. Peterson advised Thornton that they were there for the purpose of demonstrating a device to be used in setting fires. He explained how the device worked and set one off to demonstrate how it would work. For the explanation and demonstration he had a piece of fusee flare into which he poured flammable granulated material containing gun powder to which he added a short length of cotton rope. He lit the cotton rope to show how the cotton rope timed the igniting of the powder. When it ignited, there was a fast, fiercely-burning fire.
Subsequently, in the latter part of July of 1970, Peterson and Clizer came to the potato cellar of Tschirky near Mesa. They traveled in Peterson's car, where he again had gun powder, fusee material and rope fuse in the back. Tschirky summoned others to his potato cellar and a meeting then took place between Clizer and Peterson, Tschirky and three others. At this meeting, Peterson and Clizer discussed with the others in attendance plans for a large burning of hay in Grant County and stated that they wanted the Franklin County National Farmers Organization to participate, too.
Peterson and Clizer then showed to the others at the meeting a box containing fusees and segments of fusees, and proceeded to use these segments, gun powder and cotton rope in assembling and putting together devices as before.
Approximately three or four of these devices were prepared, lit and allowed to burn. In each case, the fuse was lit and when the rope fuse burned down to the point of contact with the material in the fusee casing it ignited and burned. Peterson and Clizer explained that they had experimented at length with the use of the cotton rope fuse and determined that the length of time it took to ignite the device could be controlled by the length of the rope fuse.
The defendants explained how the devices could be used for the purpose of setting haystacks on fire and discussed a list of haystacks that they intended to burn and the route which they intended to follow in burning these haystacks.
From the evidence in the record we draw this narrative picture of the device prepared and demonstrated by Peterson and Clizer:
A three to four inch long casing and fuel segment of a fusee flare (commonly used as a highway or railroad hazard red visual warning signal) from which a portion of the fuel material inside the casing segment was removed. The removed fuel material was then mixed with an equal amount of gun powder. This mixture of material along with a piece of cotton rope was then inserted and tamped into the casing. The casing fragment, its impregnated fuel and the cotton rope were made tight with binding tape.
Charles Caswell, an explosive expert with the Treasury Department, was called as an expert witness in the field of clandestine do-it-yourself devices used to destroy property. He related that he had experimentally constructed the type of...
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