APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Before: ADAMS and HIGGINBOTHAM, Circuit Judges, and TEITELBAUM,*fn* Chief Judge
Appellants, Allen C. and Sarah F. Morrow, husband and wife, have appealed from their conviction in the Middle District of Pennsylvania*fn1 of one count of conspiracy and twelve substantive counts of mail fraud in connection with the intentional destruction of an adult bookstore in Johnstown, Pennsylvania and their subsequent efforts to collect on five insurance policies covering the property. In this appeal the Morrows principally have pressed two interrelated arguments. First they contend that Count I of the indictment is duplicitous, that is, that Count I charges two separate conspiracaies with two different objects permitting the jury to convict even if split as to which conspiracy and object had been proven. Second, they contend it was error to submit one of these conspiracy charges to the jury because it was incorrectly grounded in a theory that a federally proscribed explosive device had been used. They aver that the district court misinterpreted the scope of federal law and therefore permitted the jury to consider a charge for which there was insufficient evidence as a matter of law. Essentially the Morrowws argue that arson alone was not proscribed by federal law in July of 1978 and that the government's proof suggested, at best, only arson and not the use of a federally prohibited explosive.
To properly consider these claims, it is necessary to review only that evidence establishing the method by which the bookstore was destroyed.This evidence consists of the testimony of three individuals who actually destroyed the building, Franklin Kiefer, Donald Bonsal and Frank Cislo, and the testimony of the government expert on explosives and incendiary devices, Warren L. Parker.
The evidence established that Kiefer and Bonsal purchased twenty gallons of kerosene for the purpose of destroying the adult bookstore in Johnstown. They contacted Cislo, the manager of the bookstore, and enlisted his assistance in entering the building without activating a burglar alarm.The containers of kerosene were then secreted in cardboard boxes and brought to the bookstore. Subsesquently, Kiefer and Bonsal determined that to insure complete destruction of the building several holes would have to be made in the walls to provide a better draft. The three men then made appropriate holes, spread some papers, and left the building. Later that evening Bonsal entered the building with keys provided by Cislo. Bonsal poured kerosene in several large puddles, soaking the papers and other combustible materials, on each of the three floors in the building. These puddles he connected with trails of kerosene. Upon leaving the building Bonsal ignited the kerosene. Shortly thereafter the building was ablaze, and smoke had risen several hundred feet in the air.
Cognizant of the above evidence, the government expert on explosives and incendiary devices, Warren Parker of the Bureau of Alcohol, Tobacco and Firearms, testified that in his opinion the combination of materials described above constituted an incendiary device and therefore an explosive under federal law. Specifically, Parker indicated that the entire building filled with combustible materials, fuel oil, and kerosene-soaked papers, combined with draft holes and trails of kerosene between piles of combustible materials constituted an incendiary device.
The Morrows rely on United States v. Cutler, 676 F.2d 1245 (9th Cir. 1982); United States v. Gere, 662 F.2d 1291 (9th Cir. 1981); and United States v. Birchfield, 486 F. Supp. 137 (M.D. Tenn. 1980), to argue that notwithstanding Parker's expert testimony, the evidence discloses no violation of 18 U.S.C.§ 844(h) as that provision existed in July of 1978,*fn2 but instead suggests merely arson in violation of state law.
In assessing this argument the starting point must be, as it always is in questions of statutory interpretation, the words of the statute itself. The definition of explosive for purposes of 18 U.S.C. § 844(h) is contained in 18 U.S.C. § 844(j). While this provision consists of a single sentence, it is convenient to divide the section into three parts:
I "gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuzes (other than electric circuit breakers), detonators and ...