United States v. Tankersley
| Decision Date | 26 February 1974 |
| Docket Number | No. 73-1762,73-1761.,73-1762 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. William TANKERSLEY and Frank A. Stefanelli, Jr., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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Max Cohen, Gary, Ind., for defendants-appellants.
John R. Wilks, U. S. Atty., Fort Wayne, Ind., Andrew Baker, Jr., Asst. U. S. Atty., Hammond, Ind., for plaintiff-appellee.
Before SWYGERT, Chief Judge, KILEY, Senior Circuit Judge, and SPRECHER, Circuit Judge.
Defendants Tankersley and Stefanelli, Gary, Indiana school teachers, appeal their conviction by a jury for possession of an unregistered destructive device (Count I) which was not identified by serial number (Count II), in violation of 26 U.S.C. § 5861(d) and (i), respectively, of the National Firearms Act (Act).1 We affirm.
In May of 1972 a teachers' strike was in progress in Gary, Indiana. Philip Ryals, a teacher, elected to cross picket lines and report for work during the strike, and aroused the anger of his co-teachers. At approximately midnight on May 17, 1972, police maintaining surveillance on Ryals' home observed Tankersley, Stefanelli, and codefendant Morgan—a vacationing college student and friend of Stefanelli—in front of Ryals' home, lighting what appeared to be a fuse. The police announced themselves, and the defendants fled. The police were required to shoot out a tire of Tankersley's camper bus to prevent the defendants' escape. After removing the defendants, the police searched the camper and found an M-80 firecracker encased in an envelope, some fuse, twine, and a can of paint and varnish remover. In front of Ryals' residence the police found a burned-out M-80 (a dud) inside an envelope with masking tape applied thereto in such a way that the adhesive was turned outward, and three to four inches from the envelope a Diet-Pepsi bottle containing six ounces of paint remover.
The indictment charged possession of "a destructive device composed of a flammable liquid contained in a breakable container, a detonator, and a fuse made from rope impregnated with Potassium Nitrate . . . ."
The government's theory at trial was that Tankersley, Stefanelli and Morgan intended to affix the M-80 to the Pepsi bottle, light the fuse, detonate the M-80, and set off the paint remover. It adduced evidence that an exploding M-80 affixed to a Pepsi bottle would detonate the paint remover inside the bottle. Paint remover in the bottle placed upon a corner of the envelope housing the M-80 was similarly detonated.
Tankersley and Stefanelli maintained that they intended to write the word "Scab" on Ryals' car with the paint remover, and explode the M-80 separately. They argue that the tape was to be used to affix the envelope containing the M-80 to the porch or side of the house. They introduced evidence that at a distance of three or four inches a firecracker's explosion would not set off the paint remover.
The jury acquitted Morgan, convicted Tankersley on both Counts, and convicted Stefanelli on Count I. After motions by Tankersley and Stefanelli, the court ordered the jury to deliberate further with respect to Stefanelli. The jury thereupon convicted Stefanelli on both Counts. Both defendants were sentenced to two years, Stefanelli to serve ninety days and Tankersley six months; the remainder of the sentences were suspended, and both were placed on probation for two years. This appeal followed.
Defendants contend that the court erred in denying their motion for judgment of acquittal on grounds to be discussed below. We disagree.
A.
Therefore, a combination of certain materials, coupled with the requisite intent, can be sufficient to constitute a destructive device.
We find no merit in defendants' contention that a fatal variance existed between indictment and proof. The indictment, silent as to whether the device was assembled or not, charged an offense under § 5845(f) (3): a "combination of parts . . . intended for use in converting any device into a destructive device . . ." The proof was not at variance with the charge.
Defendants next contend that they could not properly be charged under § 5845(f) (3) because their alleged intentions are irrelevant in this case. They properly concede that the Circuits are in conflict as to the meaning of subsection (3), and rely on United States v. Posnjak, 457 F.2d 1110 (2nd Cir. 1972). The second Circuit there held that proof of evil intent could not convert commercial dynamite into a "destructive device" within the meaning of § 5845(f). The court reasoned that the intention of Congress was to prohibit trafficking in articles that had no social utility, and therefore subsection (3) should not be broadened to include socially useful articles such as dynamite. So construed, subsection (3) has limited applicability. Intent is irrelevant when an assembled device falls "within (1) or (2)," because:
the parts are clearly "designed" to convert the device into a destructive device. When it is equally clear that the end product does not fall within one of those categories, the same is true. When, however, the components are capable of conversion into both such a device and another object not covered by the statute, intention to convert the components into the "destructive device" may be important. Posnjak at 1119.
The Ninth Circuit (United States v. Oba, 448 F.2d 892 (1971): commercial dynamite), and the Fourth Circuit (United States v. Morningstar, 456 F.2d 278 (1972): sticks of black powder and blasting caps), have, contrary to Posnjak, decided that evil intention is relevant to whether the articles therein come within the statutory definition.
We need not resolve the conflict, however, since under either construction, resort to intention under subsection (3) is proper upon the charge and facts in the instant case. The defendants herein were charged with possession of components "capable of conversion into both a destructive device and another object not covered by the statute." Posnjak, supra, 457 F.2d at 1119. In United States v. Davis, 313 F.Supp. 710 (D. Conn.1970), the court stated:
The defendant was found with bottles, rags, and a can of gasoline, and the question of whether he intended to convert these components into a Molotov cocktail, a crude but well-known variety of incendiary bomb, was a central issue.
Tankersley and Stefanelli were in possession of a bottle, a firecracker and tape, and paint remover: the components of a Molotov cocktail. A Molotov cocktail is not something like dynamite with a valid social use. United States v. Peterson, 475 F.2d 806, 811 (9th Cir. 1973). While the components separately have social utility, in combination they form a destructive device within the ambit of subsection (3).
We are unpersuaded by defendants' attempt to distinguish Davis on the ground that the defendant therein admitted his intention to bomb a factory with the Molotov cocktail. The evidence before us justified the jury's implicit finding that Tankersley and Stefanelli intended to convert the material they possessed into a destructive device. An admission by them was not required.2
The Supreme Court in United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), conclusively determined that the National Firearms Act does not violate the Fifth Amendment right against self-incrimination, and therefore we reject defendants' contention to the contrary.
Nor is there any merit in defendants' contention that there is no requirement that a destructive device have a serial number. 26 U.S.C. § 5842(c) provides: "Any firearm classified as a destructive device shall be identified in such manner as the Secretary or his delegate may by regulations prescribe." And 26 C.F.R. § 178.923 requires that a serial number must be placed upon the destructive device unless circumstances make it "dangerous or impracticable" to do so. Upon information from the transferor the Director may authorize "other means" of identification. Here the destructive device bore neither serial number nor "other means" of identification.
We reject Stefanelli's contention that since he came into possession of the alleged device shortly before apprehension, he did not have sufficient opportunity to comply with the registration requirements, and accordingly should have been acquitted. Timing is irrelevant here because Stefanelli, a possessor-transferee, could not have registered the device; only transferors can register firearms under the Act.4 Furthermore, it follows that there was no error in the district judge's refusal to give an instruction based upon this contention.5
Prior to the commencement of the final day of the trial, June 13, 1973, government agent Bauer conducted an experiment in which he detonated an M-80 approximately three inches away from a bottle of paint remover. The paint remover was unaffected by the explosion, and Bauer informed government counsel accord...
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