United States v. Stifel

• Decision Date: 29 October 1970
• Docket Number: No. 19958.,19958.
• Citation: 433 F.2d 431
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Orville E. STIFEL, II, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

433 F.2d 431 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Orville E. STIFEL, II, Defendant-Appellant.

No. 19958.

United States Court of Appeals, Sixth Circuit.

October 29, 1970.

William F. Hopkins, Cincinnati, Ohio, for appellant.

Harry E. Pickering, Cleveland, Ohio, for appellee; Robert B. Krupansky, U. S. Atty., Harry E. Pickering, Asst. U. S. Atty., Cleveland, Ohio, on brief.

Before PHILLIPS, Chief Judge, EDWARDS and McCREE, Circuit Judges.

EDWARDS, Circuit Judge.

This is a strange and disturbing case. Appellant Orville Stifel, was indicted for violating 18 U.S.C. § 1716 (1964), by murdering another young man, Dan Ronec, by sending him a bomb (an "infernal machine") through the United States mails. The bomb exploded when Ronec opened the package containing it. Stifel had previously been known in the community in which he lived as something approaching a model young man.

Stifel was convicted after jury trial before the United States District Court for the Northern District of Ohio, Eastern Division. He appeals from his conviction and life sentence, raising at least two important issues. First, denying his guilt at trial and on appeal, Stifel contends that the largely circumstantial proofs were inadequate to support a jury verdict of guilt beyond a reasonable doubt and that the District Judge erred by denying his motion for acquittal. Second, he contends that reversible error was committed by the trial judge in the admission over objection of the expert testimony of a government witness concerning the results of attempts to identify the source of certain bomb package fragments by a process known as neutron activation analysis.

I THE PROOFS

The victim, Daniel Ronec, then a recent graduate school student at Ohio State University, was killed July 8, 1968, at his parents' home in Lorain, Ohio, by an explosion which tore open his abdomen and tore off his arms. A postman had just delivered a package addressed to him consisting of a mailing tube with a screw-on top. The evidence supports the inference that the bomb went off when Ronec unscrewed the top of the package.

Prosecution evidence bore primarily upon Stifel's possible motive for sending the bomb, upon his capability in relation to fashioning it, and upon the availability to him of materials from which government evidence sought to establish that the bomb and bomb package were made.

As to motive, the government presented evidence concerning appellant Stifel's relationship with a young lady named Cheryl Jones, a student at Ohio State University, to whom Ronec was engaged to be married as of the time of his death. This record leaves no doubt that Stifel and Miss Jones had previously during 1965 and 1966 had a somewhat tempestuous romance which she had sought to terminate in the fall of 1966.

Subsequently, Stifel wrote Miss Jones two letters which contained language which the jury could have regarded as threats.

The first letter read:

"Dear Sher:

I called tonight. You sounded very cheer and gayful. Moreover you handled me very (quite) efficiently — like a boy you met for the first time this afternoon in the malt shop — not like someone who just gave you the most valuable thing he had. It was like some novice to whom you had to make known in no uncertain terms that no punk calls SHERRY JONES and gets a date like that. I mean who do you think you are high school Harry? I date grad studs.

I had lots to communicate but it can wait forever. I tore up the letter I wrote to you last night.

So now let me make something known to you in NO uncertain terms; and I say this not in rage or anger, but in the cold, clear precise manner which you know characterizes my firmest decisions:

I ACCEPT YOUR CHALLENGE YOU LITLE BITCH. LET\'S SEE WHO WINS!

love always Orville P.S. Keep your letter"

The second letter, which Stifel admitted he delivered by hand to Miss Jones, read in part:

"What a mover with the `in\' crowd you can be? Well I\'ll show you how little, insignificant, and unsecure you are compared to what you could have been had we worked together. This is a petty thing indeed for me to do. I should wipe you off the slate completely, but I would never know whether or not I wiped it off because it was petty or because I was a coward to undertake the petty.

If hate were written on every grain of sand in the saraha sic it would not express the feeling you will have for me when I\'m through with you.

Now that you have promoted yourself to the ranks of `mover\' let\'s see who can move the better — you or me? ? ?

?"

Miss Jones also testified to a telephone conversation shortly after Stifel had learned that she was going with Ronec:

"A * * * That evening I received a phone call from him. He said he was sick and he was on — he had been on his way to Columbus with a gun to shoot me and whoever I was with. However, en route the authorities had picked him up. The reason they picked him up is somehow he had left a note behind and one of his roommates found the note. It may have indicated what he was doing, I don\'t know.

"Q You are telling us what he told you now?

"A Yes, exactly what he told me."

Miss Jones said that she didn't believe what Stifel had told her. Stifel denied that this conversation ever took place.

Appellant's counsel reminds us that all of these expressions took place 18 months before the bombing and suggests that they could not be reasonably related thereto. There were, however, some intervening events.

In December 1967 Miss Jones became engaged to Ronec and their wedding date was set for August 1968 (a date just a few weeks after Ronec was killed). Stifel learned both of these facts from Miss Jones, but there is no indication that he ever learned that actually the wedding date was thereafter postponed to the subsequent January.

Lawrence Meehan, a friend of Stifel's at Ohio University at Athens, who, like Stifel, had returned to Cincinnati, testified that in late May or early June 1968 Stifel asked him to accompany him on a trip to Columbus. Stifel told him he wanted to use the library at Ohio State University. Meehan agreed and Stifel drove him to Columbus. Shortly after arriving there, Stifel wrote a note, sealed it in an envelope, and asked Meehan to hand deliver it to Daniel Ronec at 982 Highland Street in Columbus. Stifel drove Meehan to the Highland address, but did not wait for him. When Meehan found the apartment unoccupied, he subsequently met Stifel at a designated restaurant. Meehan gave Stifel the envelope and Stifel put it on the dash-board of his car — never thereafter mailing it.

Other testimony indicated that Daniel Ronec was listed in the Ohio State University directory at two addresses — the one on Highland, where Meehan attempted to deliver the letter, and the other at 224 W. 32nd, Lorain, Ohio, where Ronec was killed.

Stifel's testimony when cross-examined about this bizarre episode was apparently unconvincing to the jury — and in cold type it is no more convincing to us.

"Q * * * Now, you found out that he lived on Highland Avenue, is that correct?

"A I don\'t recall what the address was now any more, but subsequent testimony would leave me to believe, yes, it was on Highland Avenue — that is, testimony brought before this Court.

"Q And you and Mr. Meehan looked for that particular address on that particular street?

"A I drove him — we drove to a gas station which was diagonally across the intersection from the Burger Boy Fooderama, and asked where Highland Avenue was. The guy told me that it ran — someone there, I don\'t know whether the guy worked or not — told me that it ran parallel to High Street for so many blocks.

"I found Highland Avenue, and I dropped Larry off. I said, `Here, see if you can find out where this is and if the person still lives there, ask a neighbor, something like that. If he does, drop it in the mailbox. If he doesn\'t, you know, bring it on back straight. Please get back to the car as soon as you can, because I\'m going to leave Tarsha — that is my dog, my German shepherd — will be in the car. He\'s hot. I don\'t want to roll the window up all the way, you know, she will suffocate in the car. Please get back there as quickly as possible.\'

"Q Why didn\'t you take the letter and deliver it in person?

"A Because — the purpose of my going through all of this routine was to give him an errand to do, so that he would take care of the car and watch the dog for me while I was in the library, to give him something to do, that he would watch my car. I had to keep the thing unlocked because I wanted the window rolled down so my dog could breathe. When I went to the library, he could be in the automobile with the dog, or walk the dog around the car, so that the car wouldn\'t be towed away. There are signs in this parking lot that say, `Patrons. Any cars not belonging to patrons, or automobiles, will be towed,\' so on and so forth.

"Q That letter was addressed to Daniel Ronec, wasn\'t it?

"A Yes, sir.

"Q You had a stamp on that letter, did you not?

"A That is correct, sir.

"Q Did you ever drop that letter in the mailbox afterwards?

"A No, sir.

"Q So far as you are concerned, the last you know where the letter was was on the dashboard of your car?

"A That is the last I could say where it was for certain."

A good deal of the government's testimony pertained to evidence establishing appellant's experience in handling firearms, fireworks and small rockets. While none of this activity (which appellant conceded) directly involved detonating explosives, the government argued that this background, plus the availability of Stifel's father's tools and machinery, was evidence from which the jury could have inferred that Stifel had the capability required to manufacture the bomb.

The government also produced witnesses to establish that certain materials from which the bomb package could have been fabricated were available to him at his place of employment in a Cincinnati laboratory of Proctor &...