U.S. v. Reed

• Decision Date: 01 May 1984
• Docket Number: 81-1247,Nos. 81-1246,80-1706 and 80-1709,s. 81-1246
• Citation: 726 F.2d 570
• Parties: 15 Fed. R. Evid. Serv. 51 UNITED STATES of America, Plaintiff-Appellee, v. Frank M. REED, Jr., and David L. Smith, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 570

726 F.2d 570

15 Fed. R. Evid. Serv. 51

UNITED STATES of America, Plaintiff-Appellee, v. Frank M. REED, Jr., and David L. Smith, Defendants-Appellants.

Nos. 81-1246, 81-1247, 80-1706 and 80-1709.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 1982.

Decided Feb. 24, 1984.

As Amended May 1, 1984.

Richard Kibby, Jerry Miller, James L. Swartz, Asst. U.S. Attys., Anchorage, Alaska, for plaintiff-appellee.

Walter Share, Joseph P. Palmier, William P. Bryson, Anchorage, Alaska, for defendants-appellants.

Appeal from the United States District Court for the Southern District of California.

Before GOODWIN and POOLE, Circuit Judges, and EAST, ^* District Judge.

POOLE, Circuit Judge:

Appellants Frank Reed and David Smith appeal their convictions under 18 U.S.C. Sec. 844(i) for conspiracy to damage and destroy, and maliciously damaging and destroying, property used in interstate commerce by means of an explosive or incendiary device, and for failure to register a firearm under 26 U.S.C. Sec. 5861(d). A prior indictment returned June 5, 1980, in the District of Alaska, against Reed, Smith, and three others, was dismissed because the court found "substantial irregularities" before the grand jury--"the presence of innuendos which were irrelevant to the indictment." Reed and Smith were reindicted on September 26, 1980, and their case was tried to a jury. A mistrial was declared after the jury deadlocked. The case was then transferred to the Southern District of California for retrial. On April 6, 1981, following a second jury trial in San Diego, Reed and Smith were convicted of charges relating to the burning of Bobby McGee's restaurant in Anchorage, Alaska. (Counts I, II, III, and V). ¹ They were acquitted of attempted burning of Donovan's, another Anchorage establishment. (Counts IV and VI). This appeal was taken from their convictions on Counts I, II, III, and V.

Viewing the evidence in the light most favorable to the Government, the prevailing party, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1941), the following facts were established.

In August 1979, Reed and Donal McDaniel discussed a plan to destroy Bobby McGee's, a restaurant operated by one of Reed's business competitors. In mid-September 1979, McDaniel met with Jerry Green who agreed to burn McGee's for $15,000. Green then met with David Smith, who was to do the actual burning.

On October 1, 1979, an unsuccessful attempt was made to destroy the building housing Bobby McGee's by fire. The apparent source of the fire was paper-wrapped, gasoline-filled beverage cans in the tops of which holes had been punctured. The cans had been placed around the exterior walls of the building and ignited. The damage was primarily to the exterior, but some of the fire did burn through to the interior.

On October 15, 1979, a second attempt to destroy the building succeeded. The Government charged that the destruction was accomplished by pouring gasoline along the interior and exterior walls and floors of the building, and igniting it by a delay fuse.

For the reasons herein set forth, we affirm the convictions for conspiracy (Count I) and for attempted violation of Sec. 844(i) based on the October 1 fire (Count II), but reverse the convictions for violation of Sec. 844(i) based on the October 15 fire (Count III). We also reverse the convictions under the National Firearms Act (Count V).

I. Convictions Under Section 844(i) of the Organized Crime Control Act

It was the Government's theory that the hole-punched cans and delay fuse constituted "explosive" or "incendiary devices" within the meaning of 18 U.S.C. Sec. 844(i) and (j). Appellants challenge the statutory coverage.

In enacting section 844(i), Congress proscribed the malicious damage or destruction of a building by means of an "explosive." The definition of "explosive" includes an "incendiary device." In several recent cases we have had occasion to consider these terms. In United States v. Gere, 662 F.2d 1291 (9th Cir.1981), the defendant was convicted under section 844(i). A fire had been set with a delay fuse comprised of "trailers" of photocopier fluid and fluid-soaked materials. In holding that this did not constitute an explosive device, we adopted a narrow reading of the statute stating that "[t]he purpose of [section 844(i) ] was to protect buildings against the specific evil of bombing. There is no indication that it was meant to overlap state arson law ...." Id. at 1296; accord United States v. DeLuca, 692 F.2d 1277 (9th Cir.1982); United States v. Cutler, 676 F.2d 1245 (9th Cir.1982).

Subsequent to our opinion in Gere, Congress amended section 844(i) so as specifically to include arson "by means of fire or an explosive." Anti-Arson Act of October 12, 1982, Pub.L. No. 97-298, Sec. 2 (codified at 18 U.S.C. Sec. 844(i) (1982)). The House Judiciary Committee Report specifically references Gere in making clear that the intent of the statute was to cover both explosive and non-explosive fires. H.Rep. No. 97-678, 97th Cong., 2d Sess. 2 n. 6 (1982), reprinted in 1982 U.S.Code Cong. & Ad.News 2631, 2632 n. 6. Even before the amendment other federal circuits had given a broader interpretation of the statute in finding the existence of an explosive. See e.g., United States v. Agrillo-Ladlad, 675 F.2d 905 (7th Cir.), cert. denied, 459 U.S. 829, 103 S.Ct. 66, 74 L.Ed.2d 67 (1982) (naphtha-soaked newspapers spread across the floor and ignited by a burning piece of paper); United States v. Hepp, 656 F.2d 350 (8th Cir.1981) (delayed ignition device consisting of a cigarette inserted in a matchbox and suspended by a thread into a gasoline laden atmosphere). Nevertheless, Gere was controlling law in this circuit when the appellants were convicted and when they appealed, and we are bound to follow its narrower interpretation of the statute. United States v. DeLuca, 692 F.2d 1277, 1280 (9th Cir.1982).

A. Fire on October 1

We conclude that the means by which the October 1 fire was set come within the statutory definition of "explosive" or "incendiary device," and that such means significantly distinguish these facts from those of Gere. First, section 844(j) defines "explosive," as used in section 844(i), to include "incendiary devices" that contain "any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packaging that ignition by fire, ... may cause an explosion." (emphasis added). Explosive is defined in Webster's Third New International Dictionary 802 (16th ed. 1971) as

a substance that on ignition by heat, impact, friction, or detonation undergoes very rapid decomposition (as combustion) with the production of heat and the formation of more stable products (as gases) which exert tremendous pressure as they expand at the high temperature produced.

The gasoline-filled cans fit this definition. When lighted by heat and flame from the burning paper, gasoline would burn rapidly, producing heat that would cause it to change from its liquid state to a gaseous state. Because the gas was contained, the rapid expansion and combustion were likely to produce "tremendous pressure" on the container and make the popping noise typically associated with an explosion. United States v. Poulos, 667 F.2d 939, 941 (10th Cir.1982) (defining explosion as "a rapid expansion of gases caused by a rapid combustion of a material, which may cause a sharp noise or report").

Second, under 18 U.S.C. Sec. 232(5), which is incorporated into the section 844(j) definition, an explosive or incendiary device includes:

(C) any incendiary bomb or grenade, fire bomb, or similar device, including any device which (i) consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and (ii) can be carried or thrown by one person acting alone. (emphasis added).

The facts show that on October 1, an attempt was made to burn the building using gasoline-filled cans wrapped in paper into the tops of which holes had been punctured. This appears to be a "similar device" which very closely parallels the example set forth in the statute. In effect, it was a container whose "wick" consisted of the paper wrapping, and which could be carried or thrown by one person. The only distinction between this device and that described in the statute is that this container was not breakable. The difference is insignificant because the punctured holes from which the expanding gas and flame would seek escape serve the same purpose as would a breakable container. The openings would allow the flammable liquid to combine with air to aid combustion and to escape the container when thrown. In fact, this device could be likened to the "Molotov cocktail" described in the statutory example. 18 U.S.C. Sec. 232(5).

Finally, setting a fire by means of a container of gasoline ignited through an improvised wick is unlike the process used in Gere, which involved a flammable liquid poured in a building and ignited. Accordingly, we find that the gasoline-filled cans here, designed for ready combustion, are within the definition of explosive or incendiary device under 18 U.S.C. Sec. 844(i). We affirm the conviction on Counts I and II based on the events of the October 1 fire.

B. Fire on October 15

The method used by the appellants in the October 15 fire, however, did not significantly differ from that in Gere and United States v. Cutler, 676 F.2d 1245 (9th Cir.1982). Bound by the law of those cases in the presence of indistinguishable facts, we have no choice but to reverse the convictions relating to October 15 and charged in Count III.

The evidence showed that the October 15 fire was accomplished by pouring gasoline along the walls and on the floors of the building and igniting it by means of delay fuse. In both Gere and Cutler a flammable liquid...