United States v. Spiezio
| Decision Date | 22 September 1981 |
| Docket Number | Crim. No. 80-00333. |
| Parties | UNITED STATES of America v. Frederick A. SPIEZIO, John Ferrara and S & S Chemical, Inc. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Peter F. Vaira, U. S. Atty., Robert L. Hickok, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.
Stanford Shmuckler, Philadelphia, Pa., for Spiezio.
I. Michael Luber, Philadelphia, Pa., for Ferrara.
Calvin Lieberman, Reading, Pa., for S & S.
This criminal case was tried before me without a jury. Count One of the twenty-one count indictment charged a corporate defendant and two individual defendants with criminal conspiracy under 18 U.S.C. § 371. The indictment alleges that the three defendants conspired to violate, or conspired to aid and abet the violation of, 18 U.S.C. §§ 842(e) and 842(f).1 The remaining twenty counts charge Spiezio with distributing, or aiding and abetting the distribution of, fireworks in violation of 18 U.S.C. §§ 842(e) and 842(f). Before me are defendants' post-trial motions for judgment of acquittal and, in the alternative, motions for arrest of judgment or for new trial.
Defendants challenge the judgments of conviction entered against defendants Frederick A. Spiezio, John Ferrara, and S & S Chemical, Inc. (S & S) on Count One of the indictment and against Frederick A. Spiezio for aiding and abetting S & S, the licensee, in Counts Two through Twenty-one. Defendants' allegations of error concern (i) the admissibility of evidence, (ii) the constitutionality of the federal fireworks statute, (iii) the interpretation of the state statute which forms the basis for defendants' federal convictions, and (iv) the sufficiency of the evidence supporting the conspiracy and aiding and abetting convictions. After careful consideration of defendants' arguments, I find them to be without merit.
I made Findings of Fact and reached Conclusions of Law in a bench opinion rendered at the conclusion of the nonjury trial. The bench opinion is appended hereto as Appendix A. The essential facts will be briefly recounted here.
At all times material to the charges in the indictment defendant Spiezio was the principal operating officer of defendant S & S, a Douglassville, Pennsylvania, manufacturer of explosive materials including fireworks. Defendant Ferrara was an employee of S & S.
Mark Fisher was a potato chip salesman who purchased explosive materials from S & S and Spiezio for personal use and resale. Fisher became a "cooperating individual" shortly after his arrest by agents of the Bureau of Alcohol, Tobacco and Firearms (ATF) on February 25, 1980. Because of his cooperation, Fisher was not charged in this prosecution.
On June 29, 1979, Spiezio and Fisher met at the S & S factory. Fisher was interested in buying fireworks for the Fourth of July holiday. Fisher purchased three bags of twenty M-100's ("Big Tans") at $15 per bag. Although not involved in any of the discussions, Ferrara was present.
On July 2, 1979, Fisher went back to the S & S factory to buy more fireworks. Spiezio said to Fisher that selling fireworks was "better than drugs" because the seller will be "out on the street after a fine." Ferrara took Fisher to a forty-foot trailer containing M-100's and smaller fireworks. Fisher bought six bags of M-100's for $90. Fisher told Spiezio that he was going to resell some of the fireworks along his route.
The next day, July 3, 1979, Fisher returned to S & S and purchased an additional $150 worth of M-100's. Ferrara filled Fisher's order. When Fisher paid Spiezio, Spiezio said, "watch who you sell them to and if you get caught don't say where you got them." On this date, Fisher observed a number of persons standing in line with boxes of fireworks waiting to pay Spiezio.
Toward the end of July 1979, Fisher went to the S & S premises and bought some M-80 fireworks ("Reds"). On a date before August 28, 1979, Fisher purchased more "Reds." He bought a case of them from Spiezio at Spiezio's home for $300, which price included credit terms.
On August 28, 1979, an ATF undercover agent purchased one bag of "Reds" from Fisher at the Anvil Inn in Kennett Square, Pennsylvania. Fisher had previously bought these firecrackers from Spiezio.
On September 4, 1979, the undercover agent met Fisher again in Kennett Square. Fisher took the agent to the S & S premises where the agent purchased four bags of M-100's. Fisher acted as an intermediary during this transaction, but he did not introduce the agent to Spiezio and Ferrara. Fisher made a profit on this sale by paying Spiezio $100 for six bags and then reselling four bags to the agent for $100, retaining two bags for himself. The agent gave Fisher an additional $10 for his pocket.
On February 25, 1980, the same undercover agent and another undercover agent arranged to purchase $1,000 worth of M-100's from Fisher. Fisher bought two cases of M-100's for $600 at the S & S factory. Fisher paid $300 to Spiezio as partial payment for the M-100's and agreed to owe Spiezio another $300. Fisher then went to meet the agents at a restaurant. He took them to his home. When it came time to pay Fisher $1,000 for the firecrackers, the agents revealed themselves to be ATF agents. Shortly afterward Fisher became a cooperating individual. He took the two undercover agents to S & S to buy M-100's directly from Spiezio. Fisher introduced one of the agents to Spiezio. Spiezio then sold ten bags of M-100's to the undercover agent. Ferrara filled the order and discussed the sale of fireworks, stating "we deliver a lotta dogs down there Philadelphia." "Dogs" is a word which refers to firecrackers.
On April 23, 1980, both undercover agents went to the S & S premises. Fisher introduced the other ATF agent to Spiezio. Spiezio sold him a case of M-100's for $300. Ferrara filled the order and discussed problems caused by poorly made firecrackers. Ferrara said that in the previous year he had sold $17,000 worth of firecrackers in the Philadelphia area.
On June 10, 1980, both agents went to the S & S premises again and arranged to purchase $5,000 worth of firecrackers. Once the order was filled and the goods placed in the agents' truck, but before the money was delivered to Spiezio, the ATF agents identified themselves to Spiezio.
Spiezio did not obtain any information or complete any records relating to ATF Form 4710 in regard to any of the sales to Fisher and the undercover agents.
Qualitative analysis of the firecrackers sold by Spiezio revealed that they contained a perchlorate explosive mixture which is an explosive material regulated under 18 U.S.C. § 841(d). Each M-80 contained 4.1 grams of perchlorate explosive mixture. Each M-100 contained 21.3 grams of the mixture. Spiezio also sold an additional seven types of explosive devices. Each type contained more than 2 grams of perchlorate explosive mixture.
The defendants contend that the court erred in admitting into evidence at trial (a) tape recordings of conversations involving Mark Fisher and federal agents, (b) Fisher's testimony, and (c) motion pictures and still photographs taken to demonstrate the explosive capabilities of the firecrackers. I will address these contentions separately.
Defendants assert that the admission of tape recordings of conversations between Fisher and the federal agents violated the hearsay rule and substantially prejudiced defendants' right to a fair trial. At trial, defendants objected to the introduction of any recordings of conversations which did not take place in the presence of either defendant. I conditionally admitted the evidence pending the government's proof that these out-of-court statements were admissible as declarations of co-conspirator Fisher. Fed.R.Evid. 801(d)(2)(e).
At the close of evidence I determined that Fisher was not a co-conspirator. While the failure of the government to meet its burden of showing evidence to be admissible may provide the basis upon which to declare a mistrial, such a decision is not always appropriate.2 United States v. Nelson, 603 F.2d 42 (8th Cir. 1979); United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979).
In the instant case, hearing the recordings in no way prejudiced my verdicts as the finder of fact. I did not rely upon the recorded conversations as substantive evidence in reaching my decision. I was correct to consider the tape of a conversation between Fisher and the agents on February 25, 1980, as it pertained to Fisher's competence and credibility as a witness. I did not consider these conversations for any other purpose.
Assuming arguendo that the tape recordings were improperly admitted for any purpose, such error would be harmless because the outcome of the case would remain the same. First, Fisher testified after all the tapes were played, and he was cross-examined by defendants' attorneys. Thus, any prejudice from admitting an out-of-court statement was cured. Also, Fisher's prior taped statements were consistent with his direct testimony (introduced after the tapes were played) and were used to rebut the obvious contention of the defendants of improper influence or motive. See Fed.R. Evid. 801(d)(1)(B). I agree that it would have been better practice to receive the direct testimony first and then play the tapes, but I perceive no harm to the defendants in altering the preferred order of proof. Second, the government proved the elements of the crimes charged independently of the conversations between Fisher and the federal agents. Actually, the conversations between the ATF undercover agents and Spiezio and Ferrara were recorded.
Defendants claim three grounds of error regarding Fisher's testimony at the trial. They argue Fisher's...
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