mannequin was totally destroyed. In the first two explosions, the ATF expert added CD-4, a military explosive, to the firecrackers in order to ensure that all would detonate. The bases for defendants' claim center on the enhancement and staging of the demonstration and on its prejudicial impact. As stated in my bench opinion, I admitted the films as evidence to counter defendants' claims that the firecrackers were not explosive materials within the meaning of 18 U.S.C. § 842(e) and § 842(f) and that the regulations of the Secretary of the Treasury relating to firecrackers are unreasonable. The films illustrated the explosive capabilities of firecrackers and the dangers connected with their use.
In general, when determining the admissibility of motion pictures into evidence, the trial court must balance prejudice against probative value. Motion pictures have been properly admitted to demonstrate the physical possibility of events occurring as charged. The occurrences filmed must bear a close relationship to the occurrences relevant in the case. This relationship must be corroborated by an expert. Even where the events filmed do not bear much similarity to the events in question, the film is admissible for the limited purpose of demonstrating a theoretical principle. Harkins v. Ford Motor Co., 437 F.2d 276 (3d Cir. 1970).
I properly admitted the motion pictures to demonstrate the explosive character of the fireworks. The ATF expert explained the effect of the CD-4 on the demonstration. I took into account his testimony that the CD-4 made the first two explosions more violent and that a mannequin may be more susceptible to damage than a human body. Millers' Nat. Ins. Co., Chicago, Ill. v. Wichita Flour M. Co., 257 F.2d 93 (10th Cir. 1958) (film demonstration of explosive effects of pressure in tank filled with wheat admitted). I weighed the evidentiary value of the films in accordance with those obvious limitations. Moreover, I accorded the films little weight in reaching my determination.
III. CONSTITUTIONALITY OF 18 U.S.C. § 842(e) and § 842(f)
A. SECTION 842(e)
Defendants assert that 18 U.S.C. § 842(e) is unconstitutional under the ninth and tenth amendments and lacks a rational basis to effectuate a valid purpose. I have considered and properly rejected defendants' arguments in my bench opinion. Defendants have raised no new arguments of merit here.
B. SECTION 842(f) AND FIFTH AMENDMENT PROHIBITION AGAINST SELF-INCRIMINATION
Defendants challenge the constitutionality of 18 U.S.C. § 842(f) on the ground that the reporting requirement compels the defendants to incriminate themselves in violation of their fifth amendment rights. Defendants' contention is incorrect. The fifth amendment privilege is not violated by reporting requirements of a regulatory nature that apply to lawful activities. California v. Byers, 402 U.S. 424, 91 S. Ct. 1535, 29 L. Ed. 2d 9 (1971); United States v. Stirling, 571 F.2d 708, 727-8 (2d Cir.), cert. denied, 439 U.S. 824, 99 S. Ct. 93, 58 L. Ed. 2d 116 (1978). Explosives, unlike gambling activities, are not inherently criminal, but they are inherently dangerous. Thus Congress has a legitimate aim in controlling explosives which is furthered in a reasonable manner by the reporting requirements of 18 U.S.C. § 842(f). The statute is constitutional and the defendants' fifth amendment rights have not been violated.
IV. STATUTORY AND REGULATORY SCHEME
Defendants claim that the state statute relied upon to establish a violation of 18 U.S.C. § 842(e) does not apply to the sales of explosives made to Fisher and the federal agents. The federal statutory scheme makes it illegal for a federally licensed manufacturer and dealer of explosives to distribute explosives in violation of any state law. Defendants dispute my interpretation of the Pennsylvania statute.
Defendants assert that the Pennsylvania statutory provisions should be read to prohibit retail sales but not wholesale transactions. They further claim that all the sales that took place were in wholesale lots and therefore were not in violation of the Pennsylvania statute. This argument is without merit. Defendants' interpretation would defeat the purpose of the statute. Rules of statutory construction demand that statutes be read as a whole. Reading § 1272 in light of § 1275 persuades me that the phrases "offer for sale" or "expose for sale" include a "wholesale" transaction unless it comes within the exception delineated in § 1275. "Wholesale" sales of fireworks are prohibited by § 1272 unless they fall within the precise limits of the § 1275 exception. Section 1275 contains the only exceptions, namely, wholesale shipments destined for foreign states or made to licensed in-state fireworks professionals.
Section 1272's prohibition against "sell(ing) at retail" merely sets forth one of several types of prohibited activities. Section 1272 also makes it unlawful to offer fireworks for sale or to expose fireworks for sale without the qualification that those transactions be at retail. There is no reason to permit wholesale transactions of fireworks within a state where retail sales are not allowed. The statutory language does not require that type of restrictive interpretation. There was, in the case at bar, no evidence that the fireworks were destined for states other than Pennsylvania. I was therefore correct in holding that 18 U.S.C. § 842(e) is applicable to the defendants because the sales of explosives violated Pennsylvania state law whether or not they were made at wholesale.
In their post-trial motions, defendants contend that my finding that a conspiracy existed between S & S, Spiezio and Ferrara was in error. They first claim that there was insufficient evidence to show that Ferrara conspired with the other defendants. They next argue that without Ferrara, there can be no conspiracy between the corporation and Spiezio, its principal operating officer, as a matter of law.
After careful consideration of defendants' arguments, I hold the evidence supports my finding that Ferrara participated in a conspiracy with Spiezio and S & S.
Since a conspiracy is necessarily covert, I am permitted to infer its existence based on the actions of alleged co-conspirators and on circumstantial evidence. Direct Sales Co. v. United States, 319 U.S. 703, 63 S. Ct. 1265, 87 L. Ed. 1674 (1943). Mere knowledge of an illegal act is not sufficient to sustain a conspiracy conviction. United States v. Grassi, 616 F.2d 1295 (5th Cir.), cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 220 (1980). However, the evidence showed that Ferrara knew of Spiezio's intention to distribute explosive materials illegally in Pennsylvania and later participated in such distribution. This constitutes the kind of evidence from which I correctly inferred an agreement between Ferrara, Spiezio and S & S.
United States v. Shoup, 608 F.2d 950 (3d Cir. 1979). I therefore need not reach the issue of whether there can be a conspiracy without Ferrara's participation.
VI. AIDING AND ABETTING
Spiezio contends that he cannot be convicted of aiding and abetting the substantive counts of the indictment. He claims that he cannot be convicted of aiding and abetting the very corporation for which he was acting as agent in committing the acts charged.
It is clear that Spiezio's lack of capacity to violate as a principal a statute aimed only at "licensed fireworks manufacturers," will not absolve him of aider and abettor liability. It is well settled that a person may be convicted as an aider and abettor of a crime which he lacks capacity to commit as principal. E. g., United States v. Lester, 363 F.2d 68 (6th Cir. 1966), cert. denied, 385 U.S. 1002, 87 S. Ct. 705, 17 L. Ed. 2d 542 (1967).
Spiezio further claims that the two distinct persons, the principal and the helper, required for aiding and abetting under 18 U.S.C. § 2 were not present in the instant case because the principal and the helper were in reality the same individual, Spiezio. This contention must be incorrect. Spiezio cannot have the benefit of a claim that he and the corporation were the same entity without accepting the burden of that claim. In these transactions, if Spiezio the person was in essence Spiezio the corporation, then Spiezio the person was the licensee and would be capable of violating the statute as a principal. The fact that I held the corporation, not Spiezio, to be the licensee means that in my judgment they are sufficiently distinct for one to aid and abet the other. This distinction is immaterial, however, because if Spiezio is deemed to be the corporation then he would be criminally responsible as the principal.
Allentown, Pa., February 23, 1981
Before HON. EDWARD N. CAHN, J.
HOWARD FINKELSTEIN, ESQ.
Assistant United States Attorney