United States v. Tiche

• Citation: 424 F. Supp. 996
• Decision Date: 12 January 1977
• Docket Number: Crim. No. 75-346.
• Parties: UNITED STATES of America v. Dennis Richard TICHE.
• Court: U.S. District Court — Eastern District of Pennsylvania

424 F. Supp. 996

UNITED STATES of America v. Dennis Richard TICHE.

Crim. No. 75-346.

United States District Court, W. D. Pennsylvania.

January 12, 1977.

COPYRIGHT MATERIAL OMITTED

Thomas A. Crawford, Jr., Asst. U. S. Atty., Pittsburgh, Pa., for plaintiff.

Thomas M. Kerr, Pittsburgh, Pa., for defendant.

OPINION

COHILL, District Judge.

Defendants, Carmello Campisi, Dennis Richard Tiche and John Shaw were indicted for conspiracy to use the mails to defraud,¹ using the mails to defraud,² carrying explosives unlawfully during the commission of a felony,³ making a firearm without paying the making tax thereon,⁴ possessing an unregistered firearm,⁵ possessing a firearm made in violation of the law,⁶ and using an explosive to commit a felony.⁷

Prior to trial, Counts 2, 14, 15 and 16 were dismissed.

Campisi, in a plea bargain with the United States Attorney, pleaded guilty to three counts of mail fraud and agreed to testify for the government in return for the government moving for the dismissal of the other charges.

Shaw, in a plea bargain, pleaded guilty to Counts 1, 2 and 14 in the United States District Court for the District of Connecticut, and the remaining counts were dismissed at the time of sentence.

Defendant Tiche chose to waive trial by jury and was tried non-jury before this court from July 21 through July 23, 1976.

I

Findings of Fact

We make the following findings of fact:

Donald Nowe owned a lot on which were erected two buildings, known as 1312-14 and 1316-18 Spring Garden Avenue, Pittsburgh, Pennsylvania. Merrill Klein, a convicted arsonist or "torch man," who testified in this case, learned that Nowe "had a financial problem" and made a deal with Nowe to arrange a sale of the property. Nowe was to get $27,500 from the sale and Klein was to be allowed to keep anything that he could get over and above that price. Klein approached a friend, Nick Kerna, and suggested that he put up the money to purchase the building for "around $50,000." (Mr. Kerna died of a self-inflicted gunshot wound on May 25, 1974). Klein told Kerna that they could hold the property for a couple of months and then burn it down and collect perhaps as much as $250,000 in insurance.

Unfortunately for the plotters, Kerna did not have the money. Kerna thereupon approached Carmello Campisi, one of the defendants herein, and presented the plan to him. By deed dated April 17, 1969, Nowe conveyed the property to Campisi for $47,500. Campisi put up $42,500 of his own money and obtained the other $5,000 from either Kerna or Klein or both of them. Nowe thus got the $27,500 he needed, and Klein received $20,000. Presumably neither Kerna nor Campisi knew about that aspect of the transaction.

Campisi arranged to insure the buildings through insurance broker Leonard Young. One building was insured for $45,000 and the other for $225,000. That insurance remained in force for about a year, and then Mr. Young placed the insurance with another company, the Insurance Placement Facility of Pennsylvania, Philadelphia, Pennsylvania. That policy covered the building for $225,000 and certain refrigeration equipment inside for $50,000.

Approximately six months after the purchase, Klein introduced Kerna and Campisi to a man identified only as "Mr. Marra." Klein recommended Mr. Marra as one who could be hired to destroy the building. Kerna discussed the idea with Marra, but the negotiations collapsed when Marra wanted to be paid in advance.

Subsequently Campisi, Kerna and Kerna's driver (one Al White) traveled to State College, Pennsylvania, where they met the defendant, Dennis Richard Tiche, and discussed the destruction of the building. At this time they gave Tiche a set of tires for his car so that he could drive to Pittsburgh to look over the building. Tiche was experienced in the use of blasting devices and explosives.

An agreement was reached, and Tiche was to be paid out of the insurance proceeds after the building was destroyed. Sometime before the fire Tiche came to Pittsburgh to look over the building.

The third defendant in this case, John Shaw, was an electrician and lived in the same apartment building as Tiche in State College, Pennsylvania. Tiche asked Shaw to help out with the fire and offered to pay him $500. Tiche stated that he (Tiche) was to get $2,500 for the job. Shaw accepted.

Tiche and Shaw then proceeded to make preparations for the arson. These preparations included purchasing, or otherwise obtaining several 24-hour, 110 volt timers, and a number of collapsible five-gallon containers. Tiche already had a set of walkie-talkie radios to use. At Tiche's parents' house in Boyers, Pennsylvania, they picked up electric blasting caps, dynamite, primer cord and a roll of electrical wire. They also purchased some ordinary plastic garbage cans. This was on Thursday, June 17, 1971. They later met two men named "Nick" and "Carl" at the Greyhound Bus Terminal in Pittsburgh and drove to the Spring Garden Avenue building in two cars.

At the building a man named "Al" was also present. They unloaded from the car the various things they had obtained, and Tiche and Shaw slept in the building that night.

The next day, Friday, they went to a Cameradio store and purchased a number of electrical items to use in connection with the arson. They also proceeded to dynamite holes in the floors of the building to create a "chimney effect" for the fire. Later that day they went back to Boyers, Pennsylvania, to Tiche's uncle's, and obtained a drum pump to be used to pump gasoline out of a 55 gallon drum into the five gallon containers. They spent the night at the home of Tiche's parents in Boyers.

On Saturday they returned to Pittsburgh, obtained more plastic containers, three infrared propane heaters, three 100 pound and three 25 pound cylinders of propane gas. They then proceeded to place the garbage cans filled with gasoline and the five gallon containers throughout the building and connected them with primer cord, which is an explosive-type rope. They later distributed the heaters and propane cylinders throughout the building.

On Sunday night and early Monday morning, June 20 and 21, 1971, after all of the items were distributed throughout the building and connected, Tiche remained in the building, and Shaw drove his car away from the building. The two were in communication via the walkie-talkies, and starting at the third floor and coming down, Tiche proceeded to light the propane heaters on each floor, reporting to Shaw by walkie-talkie as he did so. Tiche's last act was to set the timer, which was scheduled to detonate the primer cord and thence the gasoline one hour after it was set.

After setting the timer Tiche told Shaw via the walkie-talkie to drive by and pick him up, which Shaw did. They drove to the airport; then turned around and came back to the city. As they got to the general area of the building, they saw a fire engine heading in the direction of the building; they saw a reddish-orange glow in the sky and heard an explosion which they assumed was one of the propane cylinders going off.

According to Pittsburgh Fire Department records the first alarm came in at 1:52 A.M., Monday, June 21, 1971.

They then returned to State College. Tiche and Shaw both were paid for their participation in the arson.

In connection with the obtaining of the insurance policy and making the fraudulent claim thereafter, the United States mails were used as follows: 1) the Insurance Placement Facility of Pennsylvania mailed a binder receipt to the Young Insurance Agency; 2) the Young Insurance Agency mailed a copy of the binder receipt to Campisi; 3) an application for a premium finance agreement was signed by Campisi and mailed by Young to ICDC, Inc., a premium financing company in Wilmington, Delaware; 4) a policy of insurance was issued by Insurance Placement Facility of Pennsylvania and on March 5, 1971, mailed by it to the Young Insurance Agency; 5) Young mailed the policy to Campisi; 6) after the building was destroyed Young mailed the notice of loss to Insurance Placement Facility of Pennsylvania; 7) a preliminary proof of loss was prepared by an attorney at Campisi's request, and mailed by the attorney to the insurance company; 8) a final proof of loss was prepared by the attorney, signed by Campisi and mailed to the General Adjustment Bureau; 9) General Adjustment Bureau mailed a proof of loss for $193,260 to Insurance Placement Facility of Pennsylvania; 10) Insurance Placement Facility of Pennsylvania mailed a check for $193,260 to Young on behalf of Campisi.

II Motions

Defendant moved for Judgment of Acquittal at the close of the prosecution's case and again after all of the testimony was closed. Ruling on both motions was reserved until the receipt of a transcript and the filing of briefs.

1. Motion for Dismissal of Count 13

Defendant moves for the dismissal of Count 13 of the indictment (carrying explosives during the commission of a felony) on the grounds that the government failed to prove the explosives were in interstate commerce.

Count 13 charges the defendant with a violation of 18 U.S.C. § 844(h)(2) which provides in part:

"Whoever . . . carries an explosive unlawfully during the commission of any felony which may be prosecuted in a court of the United States, shall be sentenced to a term of imprisonment . ."

No where does that particular provision make reference to interstate commerce. It is true, as defendant argues, that this section is in the Organized Crime Control Act, and one of the stated purposes of that Act is "to protect interstate and foreign commerce against interference and interruption . . ." Title XI, Pub.L. 91-452, § 1101 (See page 109 of 18 U.S.C.A. §§ 700 to 1080). We do not, however, find any hint in the statute that the explosives themselves must have been in interstate commerce. All that is required is that the explosives were used in the commission of a felony which may be prosecuted in a...