APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (Crim. No. 72-137)
Before SEITZ, Chief Judge, ALDISERT and ADAMS, Circuit Judges
Appellants David Heckman, James J. Heiney, Robert T. Rundle, and John D. Vito were indicted, tried, and convicted of conspiracy to violate certain provisions of the Organized Crime Control Act of 1970*fn1 - in particular, to damage and destroy power lines, a railroad junction, the Bethlehem Steel Homer Research Laboratory, and the Bethlehem Steel plant in Bethlehem, Pennsylvania.*fn2
From the evidence adduced at trial, the following facts appear. In June, 1971, Donald P. Murphy, Sr., a government informer and a key witness in this case, moved from Pittsburgh to the Allentown-Bethlehem area of Pennsylvania. During the summer, Murphy, who held himself out to be a member of a branch of SDS (Students for Democratic Society), successfully established a militant reputation and won the confidence of some young people, including appellants Heckman and Heiney. In August, 1971, Murphy moved into a house in Bethlehem where Heckman, Heiney, and several other persons were living.
Murphy testified at trial that on August 28, 1971, Heiney and Heckman discussed with him the possible destruction by explosives of power lines, a railroad junction, and property of Bethlehem Steel. During the course of this conversation, Heiney stated that he had reconnoitered the Bethlehem Steel plant and laboratory, and Heckman indicated that Bethlehem Steel's security was poor. Heiney also said that he could get the "stuff" (dynamite) for any plans. Murphy stated at this point, however, that he "was associated with the Weather Underground and we had bigger plans and not to take any independent actions like that."
Murphy further testified that Heckman and Heiney said they would take no independent action and that he knew they believed him because they entrusted him with the care of explosives. According to him, Heckman and Heiney said they would "wait a while." Two days later, while walking with Murphy, Heckman pointed out the location that he thought was the best place to blow up the railroad tracks adjacent to the Bethlehem Steel Works.
Murphy later met with local and federal law enforcement officials to request the assistance of undercover agents. On September 23, Ronald Coppoletta, a special agent from the Alcohol, Tobacco, and Firearms Division of the Treasury Department, was introduced to Heckman and Heiney as Steve Fine, a member of "Weather Underground." During a meeting at which Heckman, Murphy, Heiney, and Coppoletta were present, Murphy informed Coppoletta of his previous discussions with Heckman and Heiney and Coppoletta responded "that there was to be no independent actions, that bigger things were planned, and it would just make a lot of trouble for everybody." Coppoletta stated that "Weather had an atomic reactor somewhere in Pennsylvania they were interested in." According to Coppoletta's testimony, Heckman and Heiney agreed to "take no action without notifying me." They also agreed to give him dynamite "to be used for targets that they intended to blow up and the targets that I alluded to that Weathermen wanted to blow up."
Heiney, Heckman, Coppoletta, and Murphy met again on September 27. Appellant Vito arrived at the meeting and said that he had four sticks of dynamite and would give three sticks to the group. According to Murphy, Vito said that he did not want any money for the dynamite as long as it was "used against the establishment."
The next day Heckman led Murphy and Coppoletta to lower Saucon Park where they found three sticks of dynamite wrapped in a plastic container and placed in a garbage can. Murphy retrieved the three sticks of dynamite and gave them to Coppoletta.
On October 4, according to the testimony of undercover agent Coppoletta, Robert Rundle showed Heiney and Coppoletta where he had hidden seventeen sticks of dynamite. Because Rundle refused to transport the explosives himself, he asked Coppoletta to drop him off before Coppoletta returned for the dynamite. During the ride, Heiney told Rundle that the dynamite would be used for the "movement." Rundle responded that "he didn't care what we did with [the dynamite]," that he just "wanted to be rid of it."
The appellants*fn3 concede, arguendo, and in any event we conclude, that the government has proved an agreement sufficient to satisfy the elements of a criminal conspiracy to destroy power lines, a railroad junction, and property of Bethlehem Steel (hereafter Conspiracy I). They also concede that the government has proved the overt acts charged in the indictment. They argue, however, that the evidence was insufficient to prove that the overt acts were carried out in furtherance of Conspiracy I, the single conspiracy charged in the indictment. Appellants contend that the overt acts were in furtherance of a completely different conspiracy not charged in the indictment, a conspiracy to destroy a non-existent nuclear power plant (hereafter Conspiracy II), an alternate plan urged upon them by Murphy and Coppoletta. In short, it is the appellants' ...