|Debt. Arson. Murder.|
|San Diego Reader|
(First Published San Diego Reader October 5, 2011)
John Nesheiwat was parked in his car, a rosary on the seat beside him, about a mile from the North Woodson Drive rental home owned by James Kurtenbach, a 4000-square-foot luxury house in one of the few but posh golf-course communities next to Ramona. Minutes before, John had dropped off his younger brother Joe — an amiable 24-year-old, with short-cropped hair and an Arabic tattoo on his arm, who was about to do a big favor for Kurtenbach.
Forty-seven-year-old Kurtenbach was Joe’s employer at Stars Petroleum, a flagship gas station in town. Jim Kurtenbach and Joe thought of each other as father and son: Jim had given Joe a job at Stars eight years previously, lots of responsibility, and eventually the night manager’s post. He also supported Joe and John’s mother, Terry Sellers, and the rest of family, four brothers and a sister, with gifts and loans. You might say Joe owed him.
Kurtenbach’s demeanor could slide from sugary to enraged when he did not get his way, but “Whatever Jim said, Joe said, ‘Yes, yes, yes, yes, yes,’” Sellers remembered. Joe told her to “Have faith; everything will work out.”
The relationship was a mix of pledges and paybacks. Do something for Jim, Jim does something for you. His latest promise was that the whole family would have “a good Christmas and a great Thanksgiving.” That meant new motorcycles, which the brothers coveted, and partial forgiveness of debts — in Joe’s case, $8000. What a boon this would be since he would soon be moving out of his mother’s home and in with his girlfriend, who, eight months before, had given birth to a child. Their child.
That’s how it was for the Nesheiwat brothers, Thursday evening, October 30, 2008, one night before trick-or-treaters would flashlight their way through Ramona’s sidewalkless subdivisions. As John sat in his car, a mile from the rental home, he trusted that his brother knew what to do. Get in, get out. John, who also worked at Stars, trusted Jim Kurtenbach. The boss had said that this big favor wouldn’t look like arson, not after he’d told friends and customers that he smelled propane at the property. Torching the house would be a “fucking cake walk,” Jim said. “Real simple.”
John waited. Any moment now Joe would text, telling him the deed was done. The moment came, around 1:30 a.m. — and it was nothing like the quiet blaze John expected. The sky erupted with a blast of light. The car rattled as if from an earthquake. John was shocked: Was the fire supposed to quake the earth like that? He stared as the bright light grew, smoke graying the orange glow. He drove to North Woodson Drive’s gated entrance, frantically phoning his brother. No text came. Nothing. Joe was supposed to text right after he lit the gas. That was the plan. John pushed Joe’s number again. Nothing. Again he called. And again. Seventeen times. Where was Joe’s text? He was supposed to text. Months later, John told a sheriff’s detective: “I heard the explosion and what I saw — I don’t think any human would have survived it.”
John drove home. There, in the driveway of his mother’s place, he waited. For two hours. The longest two hours of his life. A Catholic, he picked up the rosary and let the beads move through his fingers like knots in a rope bridge across a canyon. He prayed, for his brother and for himself. He was now an accomplice to arson.
Miles away on North Woodson Drive, the house was an inferno. It had blown sky high, the garage door traveling 100 feet into the street, the roof collapsing, window frames and glass flying into the yard. The good-natured Jordanian kid who, along with Jim, had presoaked the house with 70 gallons of gasoline (and himself with cannabis), and who’d lit the match to help out his boss — Joe lay in the backyard, screaming, foaming at the mouth, writhing on the ground, clawing at his scalded body. Awakened neighbors said the agonal sound — it lasted for five minutes and was, the prosecutor later wrote, “enough time for Joe to realize what was happening to him” — reminded them of an injured and trapped animal.
That afternoon, Jim and Joe — seen by John and a neighbor — had filled approximately 14 five-gallon utility jugs of gasoline at Stars. Transporting them to the North Woodson home, the two had doused the downstairs. Joe’s instruction, the “big favor,” would be to return to the house late at night where, while John waited, Joe would strike one match, toss it into the home, then run like hell. He’d text John right away. Real simple.
Nothing went according to plan.
The blast and fireball threw Joe Nesheiwat from the back door across the patio, where he landed on his knees with blunt-force trauma. The blast fried 85 percent of Joe’s body with second- and third-degree burns. According to the autopsy, the pressure wave of the explosion ruptured his capillaries and bled “into the lung spaces”: his lungs “super expanded and leaked.” (This is how the medical examiner knew Joe had struck a match near the gas vapors: the close force of the blast had burst his lung tissue.) Joe had dressed in shorts and T-shirt, a sweater, and sneakers. He’d struggled, choking on his final breaths — his nose and throat filled with soot, his hair singed off, one hand “degloved” of its skin, his face blistered by “droplets of burning fluid,” his liver lacerated by the force of being catapulted away from the back door — his charred naked body left with only the collar ring of his T-shirt around his neck, his socks, and the remnants of a tennis shoe on one foot.
Kurtenbach’s Pile of Debts
On the day before Jim and Joe loaded a van with 70 gallons of gasoline, Kurtenbach told his Farmer’s Insurance agent to raise, yet again, the coverage he carried on the home. In February, he’d changed the amount from $600,000 to $900,000, and now he bumped it up another $15,000. It was odd, because Kurtenbach, who’d bought the home in 2005 for $910,000, had tried to sell the place for two years with no takers. He kept it rented, but the market, fueled by the foreclosure crisis, was tanking. In 2006, Kurtenbach listed the house at $950,000; by fall 2008, it was appraised at $600,000. Losing more than a third of its value, it still wouldn’t sell.
This was just the first floor of Kurtenbach’s tower of debt.
In 2000, Kurtenbach had been the owner of a gas station in Omaha, Nebraska. Kurtenbach claimed the station did a great business. When he decided to sell it, he showed the buyer records that revealed a million-dollar yearly income. After the new owner took possession — Kurtenbach having left for California — he found tax records behind a file cabinet at the station. From these, Kurtenbach had apparently forged new documents: the income had been inflated some $360,000. The man’s suit against Kurtenbach resulted in a penalty-enriched $300,000 judgment, but Kurtenbach hadn’t paid a dime.
He was freshly divorced from Teresa Kurtenbach, co-owner of Stars, with whom he had three children. Their marital settlement gave her $10,000 a month from Stars’ income. Quickly, Kurtenbach remarried; he and his pregnant wife lived in a 6000-square-foot Poway home whose mortgage was $7600 per month. Kurtenbach’s three monthly mortgage payments — on Stars, the Mount Woodson home, and the Poway home — totaled $23,464.25.
There were other debts: he owed an attorney in Nebraska $26,000; he owed the California State Compensation Insurance Fund $9200, an underpaid premium; he owed property taxes on both homes (having paid nothing for three years) totaling $71,800; because he liked to pay his 11 employees at Stars in cash, he owed taxes and penalties of $174,000 on those wages to the state’s Employment Development Department; and he owed his ex-wife, Terri, $80,000 from a loan. (Terri told detectives that Kurtenbach, pre-arson, told her she’d get her money sooner than later because “something big is going to happen.”)
In January 2009, Terri told the incarcerated Kurtenbach, in a phone call recorded by police, that because he was “so f’ing far in debt” she was making payments for “[your] f’ing loans.” She was “paying for your f’ing shit for November,” referring to the arson. “You know what the ‘f’ you did — [with] the gas station, you put us both in a f’ing hole.”
The most gravity-defying bill that Kurtenbach owed was to the California Board of Equalization. For three years, he had underreported sales tax on Stars’ fuel sales, which, from 2006 to 2008, totaled $16 million. Once contacted by the board, Kurtenbach stalled the inquiry. He offered, according to court files, excuses, “including that he was seeking treatment for cancer in Nebraska,” which was a lie. The board put a lien on Stars, and Kurtenbach received a bill for unpaid sales tax. With interest and penalties it came to $2.9 million.
Pile of debt: $3.5 million. While it’s true that some of these debts were not assessed on Kurtenbach until after the North Woodson Drive arson, Kurtenbach was being audited by the Board of Equalization. He must have known that sooner or later he’d be investigated for tax evasion on his business and his homes. The amount he owed, assessed and coming, was nearly insurmountable for a man of his means.
The Plot Twists
With the fire still sputtering, Kurtenbach arrived at the Mount Woodson home at 4:30 a.m. He told detectives that the tenant had moved out two days before and he was having the carpets cleaned and the place repainted. Paint cans were piled in the garage, near the hot water heater, he remembered. What’s more, he’d smelled propane gas and had called Pro-Flame to check it out.
What Kurtenbach didn’t tell deputies — which came to light once his son Justin told police everything he knew — was that Kurtenbach had told John earlier that his brother Joe was dead. John and Kurtenbach had met at Denny’s, where Kurtenbach said that if John confessed, “he was going to go to prison, and they would both get ‘screwed over.’” They had to take this to their graves. No one could know. Kurtenbach said he’d pay for the funeral and burial (which would total $25,922), the most recent unpaid monthly mortgage, and a $5000 gas and electric bill (the Nesheiwat’s electricity had been shut off). Kurtenbach also pledged that he was working on the insurance claim and preparing “a wrongful death lawsuit” to “obtain money for the Nesheiwat family.”
In the meantime, arson investigators determined at once that the fire had been deliberate. They noted, according to court documents, the strong smell of gasoline in the home’s ruins, as well as “pour patterns” and “distinct burn patterns” on the concrete and carpet of the downstairs floor and at the back door. That was where Joe had bent down and lit the match, the vapors exploding and catapulting him into the yard.
Kurtenbach was charged with arson in December, 2008. The cited proof: the large explosion; the house-destroying fire; the post-fire odor of gas; and the pour patterns.
Detectives learned from Justin of his father’s penchant for blabbing about his plans. Justin, who also worked at Stars, hated his father for favoring Joe. After the 2007 Witch Creek fires, which had burned or caused smoke damage to many Ramona homes, Justin remembered his dad saying in front of him, Joe, and John that “It would be nice if the [Mount Woodson] rental property burned.” Justin told police that when his father — jokingly, he thought — asked him to do it, Justin said no. But Joe had agreed, Justin said, while John agreed to drive the getaway car.
Police also discovered that John had been lying. He said he knew nothing of Kurtenbach’s plan. It was only when the district attorney’s office offered him a deal — a fact that Kurtenbach’s fifth lawyer, Paul Pfingst, used during the 2010 trial: “John Nesheiwat is a liar who thought of his story only after he was given immunity” — did John ’fess up. He told police that he’d gotten a phone call from Kurtenbach an hour after the explosion, with news that his brother was dead. Kurtenbach called him numerous times that night, telling John to keep his mouth shut, and, later that day, assuring John that he would pay his and his family’s bills.
A judge fixed Kurtenbach’s bail at $2 million, but he was able to post it. He was out in three months and remained free for the next 18 months, awaiting trial.
Kurtenbach did himself no favors as a free man. He began two campaigns: one, to sell off all of his assets; and two, to collect money from 80 debtors who he claimed owed him a combined $180,000. From jail, Kurtenbach had harassed his wife, his ex-wife, and his son to get him bail money. Freed from custody, he stalked and threatened at least four parties.
He went to the apartment of one debtor, Dennis West, demanding money. Kurtenbach said he would stab him if he didn’t pay up. Later, he slashed West’s car tires. Alleging that Kenneth and Sandra Green owed him $20,000, Kurtenbach barraged them with phone calls. He banged on their front door for ten minutes straight, demanding his money. They eventually paid him $7000, settling the claim. Kurtenbach followed Bob and Denise Woodward, to whom he had extended credit at Stars, and who, he said, owed him $18,000. Kurtenbach chased them around Ramona by car so often that the Woodwards stopped him with a restraining order. Lastly, Kurtenbach harassed a former girlfriend, Nicole Atencio. He stole a car they co-owned — a second BMW he’d bought her after she wrecked the first BMW he’d bought her — and hounded her to return a drawer full of jewelry.
Only with the intercession of his fourth lawyer, Kerry Steigerwalt, did Kurtenbach turn all these unpaid loans over to a collection agency.
Of the charges on which Kurtenbach was taken to trial in late September 2010 — counts included tax evasion, failure to pay tax, misrepresenting his workers’ compensation payments, false insurance claims, conspiracy to commit arson with intent to defraud, using an accelerant for the fire, arson causing great bodily injury, and murder — only the last charge was strongly contested by Kurtenbach’s lawyers.
A murder is defined as the unlawful killing of a human being with “malice aforethought.” Malice may be “expressed or implied,” and either condition requires intent. A person is charged with first-degree murder when he or she directly kills or is responsible for killing another person or hires a gunman to do the job. Second-degree murder involves the accidental killing of a person: the death must occur during a life-threatening act and involve malice. Malice and both degrees of murder go hand in hand.
Judge Herbert Exarhos allowed the prosecution’s second-degree charge to go forward in this case, while the defense filed numerous motions on Kurtenbach’s behalf to block it. The defense’s position was that the act of pouring gasoline in a vacant house by one person is not a life-threatening act against the other person, who has a choice in how he or she starts the fire. The prosecution’s position was that the act of pouring 70 gallons of gasoline, letting vapors build up inside a house, and then telling another to go into the house and start the fire is murder since the person who orders these things knows — implied malice — that the act may kill the perpetrator.
At trial, deputy district attorney Fiona Khalil argued that Kurtenbach “sent a trusted employee to his death.” He knew he was putting Joe into a situation where he was likely to die. Though Joe may not have known — or may have known and not remembered in his rush to set the fire and run — surely Jim Kurtenbach knew of the volatility of gasoline vapors in an enclosed space. Kurtenbach had owned gas stations for years; his vanity plate read “Fuel Pro.” And, by law, he had posted six separate warning signs about gasoline vapor and fire at each pump at Stars. The fourth warning is most pertinent: “A spark will explosively ignite a gasoline vapor fire and cause SERIOUS INJURY or DEATH.”
Precedent in California for charging Kurtenbach with second-degree murder is clearly established. The case most cited reads: “Implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another — no more and no less.” Another case upheld this definition, describing malice as “the conscious disregard of the danger to human life.” Still another decision says that “malice aforethought” need not possess “the slightest trace of personal ill-will.” You need not want to kill someone to be guilty of second-degree murder. But your involvement, citing another definition, must contain knowledge of the “distinct possibility” of the person’s death.
Thus, Kurtenbach’s participation, even direction, in supplying and transporting the gasoline, helping to spread it throughout the house hours or days earlier, which allowed the vapors to accumulate, and knowing the explosive power of gasoline, was “inherently life-threatening” to Joe Nesheiwat and an expression of implied malice. (Judge Exarhos ruled in a pretrial hearing that if Kurtenbach told Joe to go into the house and strike the match, then the act of implied malice and the law of second-degree murder could stand.)
Adding to this argument was Kurtenbach’s knowledge that Joe was in a bind with his debts, with responsibilities to his mother, and a new family. In fact, Joe had hired a lawyer to ensure his parental rights to his child. Not only could Kurtenbach pin the whole affair on Joe, the state said, but Kurtenbach also knew that Joe had taken out an insurance policy on his own life. So if Joe blew himself up (intentionally or not, didn’t matter), Kurtenbach could say that this was Joe’s testament: his girlfriend and child could collect.
Defense attorney Paul Pfingst, who took over from Steigerwalt (Steigerwalt’s firm, Pacific Law Center, went out of business in 2010; vendors and creditors claim the firm owes them more than $3 million), countered that “No one was murdered in this case. Someone who was setting the fire had an accident and killed himself. Nobody wanted him to die.” In arguments filed early in the case, Steigerwalt wrote that it is established law in California that if there is conspiracy to commit arson and one person dies at the scene and the other is not at the scene, the latter cannot be charged with murdering the former. After all, how could Kurtenbach be charged with murder if he didn’t directly kill Joe Nesheiwat? He may have known Joe might die in the act, if he botched the arson, but that shouldn’t be the same as killing him.
Pfingst noted that, according to the state’s witness, John Nesheiwat, Kurtenbach told Joe that the arson would be “real simple,” implying that “it could be safely and easily accomplished.” In a written argument, Steigerwalt contended that “There is nothing inherently dangerous to human life in pouring gasoline on the floor of a house, even where it was done knowing someone would come in later and set a fire.” What’s more, there is no way to judge whether Kurtenbach “actually appreciated the risk involved.”
Risk, as another court case has established, is “a subjective standard.” What is the relationship between the amount of gasoline poured (in this case, a lot) and whether the arsonist set the fire “irresponsibly,” that is, endangered himself? Kurtenbach may have known that pouring a lot of gas would be highly explosive and accomplish the mission, but, his lawyers contended, he didn’t instruct Joe to do it in such a way that Joe would be killed.
Back and forth went the claims and counterclaims during the two-week trial.
Pfingst had a friend of Joe’s testify. The friend said that Joe was doing this arsonous favor for his debt-ridden boss on his own power; Kurtenbach had no idea what Joe was planning. Prosecutor Khalil described how Kurtenbach had foreshadowed the surprise fire mere days before the house was to blow, by telling friends he smelled a propane leak; he then moved a stack of paint cans next to the hot water heater, further arranging the evidence.
Pfingst noted that the jury shouldn’t believe John Nesheiwat, the prosecution’s star witness. John was, according to Pfingst, a “pathological liar.” He read a “top 25 list” of contradictory statements John made under oath. With the same distrust, Pfingst continued, jurors should throw out the testimony of Justin Kurtenbach, who implicated his father in the deed: Justin, Pfingst reminded the jury, had admitted on the stand that his hatred for his father was an “11” on a scale of 1 to 10.
Khalil described how on three separate occasions Kurtenbach was cited for “dispensing fuel” in five-gallon jugs, “inside his store.” Moreover, Kurtenbach had to “remove and install underground gasoline tanks” at his Nebraska filling station, which proved he recognized the “combustibility of gasoline vapors.”
(A few arson facts: 70 gallons of gasoline, which the two men poured throughout the house, equals the explosive power of 1500 sticks of dynamite. Gas fumes can ignite before the liquid gas does, from as far as 12 feet away, even by static electricity. Once the vapors ignite, the temperature of the fireball is 15,000 degrees, and the ignited gasoline travels along the path that has been poured.)
Pfingst, his tone pleadingly sarcastic, asked the jury why Kurtenbach would send Joe, a kid he loved like his own son, to do a deed in which 70 gallons of gas would explode the moment he dropped the match? “It makes no sense.”
Khalil instructed the jury that since Kurtenbach knew the dangers of gas vapors in an enclosed space and had told Joe to go inside and start the fire, then malice had been implied, if not guaranteed.
Kurtenbach could have told Joe to start the fire from a safe distance. But he didn’t. Because Kurtenbach was a gas man, he knew that if Joe got close — opened the back door, stepped inside, lit the match — he’d be killed.
On October 12, 2010, the jury returned its verdict. Kurtenbach was found guilty of the felony charges of vandalism, conspiracy to commit arson, using an accelerant, and arson causing great bodily injury. He was also convicted of workers’ compensation, insurance, and tax fraud. These charges were dismissed, however, on condition that Kurtenbach and his ex-wife file bankruptcy and reorganize the Stars petroleum business so that creditors might eventually get some of their money.
On the charge of second-degree murder, the panel deadlocked 7-5 in favor of conviction.
One of the seven jurors, voting for the murder charge, said that Kurtenbach “has been around gasoline, and he’s owned his own gas companies for years. How could he not realize there was a possibility of somebody dying in the fire?”
Though the prosecution agreed with this juror, the district attorney’s office elected not to retry Kurtenbach on the murder charge. Judge Exarhos gave him the maximum penalty he could — 15 years and eight months in a California penitentiary.