U.S. v. Agrillo-Ladlad, AGRILLO-LADLAD

Citation675 F.2d 905
Decision Date14 April 1982
Docket Number80-2826,Nos. 80-2822,AGRILLO-LADLAD,s. 80-2822
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ana Erika, and Lawrence J. Fleming, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Robert J. Weber, Chicago, Ill., for defendants-appellants.

Joan B. Safford, Asst. U. S. Atty., Dan K. Webb, U. S. Atty., Chicago, Ill., for plaintiff-appellee.

Before BAUER, Circuit Judge, FAIRCHILD, Senior Circuit Judge, BAKER, District Judge. *

BAKER, District Judge.

The defendants, Ana Erika Agrillo-Ladlad and Lawrence J. Fleming, were convicted under 18 U.S.C. § 371 of conspiracy to damage and destroy, and attempting to damage and destroy, by means of an explosive, property used in an activity affecting interstate commerce. They were also convicted of the substantive offense under 18 U.S.C. § 844(i). A confederate, Jeffrey D. Bennett, was also indicted but plead guilty and became a witness for the government.

On appeal, Agrillo-Ladlad and Fleming contend that 18 U.S.C. § 844(i) is not applicable to the facts of this case and that the defendants were improperly convicted under that statute. We affirm.

I.

The defendant, Ana Erika Agrillo-Ladlad, owned United Latino's Press, (United Latino's) a commercial printing company located on the east half of the sixth floor of 213 West Institute Place in Chicago, Illinois. Agrillo-Ladlad employed the defendants Fleming and Bennett. Fleming was the shop manager and Bennett ran the folding machine and did occasional electrical work. The defendants conspired together to destroy the business and to collect the proceeds of the fire and casualty insurance covering the business.

On March 22, 1979, at about 1:30 AM, Bennett entered the basement at 213 West Institute Place and disconnected United Latino's fire alarm and sprinkler system. Bennett then went to the sixth floor and began to lay out layers of newspapers in rows, or trailers, 1 connecting the major pieces of shop equipment to a central ignition point. After he had laid out the rows of newspapers, Bennett poured naphtha on them using a bucket and the contents of a fifty-five gallon drum of naphtha which had been purchased and delivered to United Latino's the day before. The process of laying out the newspapers and saturating them with naphtha took about 21/2 hours. During the whole period of time the windows in the United Latino's premises were closed and the ambient temperature was between 55 degrees and 60 degrees Fahrenheit.

Bennett then began to assemble an electronic ignition unit which, connected with a timing device, would pass a flame through the newspapers and ignite the naphtha. He had to strip the insulation from some wires. Since he did not have wire strippers, Bennett struck a match to burn off the insulation, whereupon the naphtha that Bennett had spilled on his clothing caught fire and Bennett ran from the pressroom and extinguished the flames by rolling in a hallway rug, but only after sustaining burns on his hands and legs.

Bennett returned to United Latino's pressroom and ignited a piece of newspaper by holding it in the electric arc of an arc light. He carried the burning paper to the junction point of the three trailers and dropped it on the trailers. Bennett then left the United Latino's premises closing and locking the door behind him. Apparently Bennett went to a nearby police station and told the police he thought there was a large fire on Institute Place.

Within fifteen minutes the Chicago Fire Department was at the scene and engineer Robert Popjoy observed that the windows had blown out of United Latino's and that flames were emanating from them. After entering the premises Popjoy saw almost total destruction, bent pipes, charred and blown out windows, and warped, bent and twisted office equipment. A chandelier on the floor above was almost completely melted.

Inspector Thomas Kerner of the Chicago Bomb and Arson Squad testified for the government. From his observation of the United Latino's premises, Kerner believed that an accelerant had been spread about the premises and that vapors from the accelerant had been contained in the lower portions of the room either by the heat or humidity of the room, and that the vapors had been simultaneously ignited in an "explosive-type fire of rapid oxidation." 2

Thomas Cousins, an enforcement officer of the Bureau of Alcohol, Tobacco and Firearms, Washington, D. C., testified as an expert witness for the government. Cousins testified that both naphtha and gasoline are potential explosives. It was Cousins' opinion that an uncontained explosion had occurred at United Latino's and that the uncontained explosion had been a simultaneous ignition of a vapor envelope which formed above the naphtha soaked trailers. Cousins was of the further opinion either that a contained explosion caused by ignition of the accelerant vapor build-up in the office area took place and blew out the windows, or that the explosion was caused by the natural phenomenon of heat build-up in an uncontained flash fire causing a "flash over" which blew out the windows and vented the fire. Under either possibility there was an explosion.

Cousins explained how over fifty gallons of naphtha spread over rows of newspapers to all major equipment at United Latino's and into the office area would explode when set on fire. At night the temperature in United Latino's was between 55 degrees and 60 degrees Fahrenheit. Cousins explained that just above the flash point 3 of naphtha, which is 50 degrees Fahrenheit, naphtha generates sufficient vapors which, when mixed with a certain percentage of air, form a potentially explosive mixture. "The vapors produced," Cousins explained, "are heavier than air and when the vapors are produced, they have a tendency to stay within the immediate area and ... build up and build up, until ... the proper amount of fuel to air is attained." (Record, vol. 7, at 981-82). It was Cousins' opinion that more than fifty gallons of naphtha would give off sufficient vapors to form an explosive potential, when spread along paper trailers to equipment and into the office area of United Latino's in a temperature of above 50 degrees Fahrenheit and when combined with the air around it. Those vapors, when ignited by a flaming newspaper, could have exploded. After examining photographs of the damaged United Latino's, Cousins described the photographs as depicting the aftermath of an "explosive phenomenon." (Record, vol. 7, at 985).

II.

The question that confronts us is whether naphtha soaked newspapers strategically spread across the floor of a building for the purpose of directing a fire and ignited by a burning newspaper is an "explosive" or "incendiary device" as defined in 18 U.S.C. § 844(j) and 18 U.S.C. § 232(5) for the purpose of prosecution under 18 U.S.C. § 844(i).

The government has two theories: first, that the defendants used a "chemical compound, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, ... that ignition by fire ... of the compound, mixture or device or any part thereof may cause an explosion," 18 U.S.C. § 844(j); second, that naphtha soaked newspapers are a device similar to an "incendiary bomb." 18 U.S.C. § 232(5)(C). Agrillo-Ladlad and Fleming argue that Congress did not intend the term "explosive" as used in 18 U.S.C. § 844(i) to include devices such as naphtha soaked trailers.

III.

The plain meaning of the language of Title XI of the Organized Crime Control Act of 1970, the legislative history of the Act, the testimony at trial of Thomas Cousins, and the case law all support the government's position that naphtha soaked newspapers constitute an explosive under the terms of the Act. Pub.L. No. 91-452, 84 Stat. 922 (1970). The device used by defendants contained an "oxidizing" unit, the air in United Latino's. The device contained a "combustible" unit, the naphtha vapors, trailers of newspapers, and a rolled newspaper. The "quantities" of the oxidizing unit and combustible unit caused an "explosion" when Bennett ignited the device "by fire." The defendants argue, however, that the spreading of naphtha on the trailers was not a proportioning, mixing or packing as those terms are commonly used.

In determining whether Congress intended to exclude naphtha soaked trailers from the term "explosives," the language used in Title XI of the Organized Crime Control Act of 1970 must be studied. 2A J. Sutherland, Statutes and Statutory Construction § 45.05, at 16 (4th ed. 1973). Title XI provides two independent definitions of the term "explosives."

Section 844, subsections (d) through (i) of Title XI created new federal criminal offenses for maliciously using or attempting to use or threatening to use explosives against proscribed targets, including commercial properties. Section 844(j) defines the term "explosive" for purposes of section 844(i) and other sections dealing with the malicious use of explosives:

For the purposes of subsections (d), (e), (f), (g), (h), and (i) of this section, the term "explosive" means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electric circuit breakers), detonaters, and other detonating agents, smokeless powders, other explosive or incendiary devices within the meaning of paragraph (5) of section 232 of this Title and any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire, by friction, by concussion, by percussion, or by detonation of the compound, mixture, or device or any part thereof may cause an explosion.

18 U.S.C. § 844(j).

Section 232(5), which section 844(j) incorporates by reference further defines the term "explosive or incendiary device"...

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