Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.
Swygert, Chief Judge, Kiley, Senior Circuit Judge, and Sprecher, Circuit Judge.
KILEY, Senior 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).*fn1 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 co-defendant 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 "destructive device" is defined in 26 U.S.C. § 5845(f) as
(1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device;
(2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary or his delegate finds is generally recognized as particularly suitable for sporting purposes; and
(3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a ...