U.S. v. Avery

• Decision Date: 29 September 1983
• Docket Number: No. 82-5589,82-5589
• Citation: 717 F.2d 1020
• Parties: 14 Fed. R. Evid. Serv. 66 UNITED STATES of America, Plaintiff-Appellee, v. Ozzie Lee AVERY, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1020

717 F.2d 1020

14 Fed. R. Evid. Serv. 66

UNITED STATES of America, Plaintiff-Appellee, v. Ozzie Lee AVERY, Jr., Defendant-Appellant.

No. 82-5589.

United States Court of Appeals Sixth Circuit.

Argued June 22, 1983.

Decided Sept. 29, 1983.

Frank E. Haddad, Jr., argued, Louisville, Ky., Robert D. Simmons, Bowling Green, Ky., for defendant-appellant.

Alan Sears, Richard Dennis, Asst. U.S. Attys., Louisville, Ky., argued, for plaintiff-appellee.

Before CONTIE, Circuit Judge, and PHILLIPS and CELEBREZZE, Senior Circuit Judges.

CONTIE, Judge.

Ozzie Lee Avery appeals his jury conviction on one count of attempted destruction of a building used in interstate commerce by means of an explosive. 18 U.S.C. Sec. 844(i). In this appeal we are required, among other things, to determine whether the materials used in the attempted destruction fall within the statutory definition of "explosive." 18 U.S.C. Sec. 844(j). After careful consideration, we affirm the defendant's conviction.

I.

At 11:06 p.m. on the evening of February 16, 1982, the Bowling Green, Kentucky police station received a burglar alarm signal from a local medical office building. The officer who was dispatched to the scene testified that he turned his car spotlight on and "threw [it] into the general area of the back door to make sure that the back door looked intact." At this point, the officer noticed the defendant "crouched down" near a small storage door at the rear of the building. The defendant then ran to his car, and sped from the parking lot. After a brief pursuit, the defendant stopped his car and the officer arrested him. The car was registered in the defendant's name, and had silver duct tape covering all four guidelights on the sides of the car and the lights normally illuminating the license plates. The license plate itself was covered with oil and dirt.

Following defendant's arrest, the officer placed him in the patrol car and advised him of his Miranda rights. The two then returned to the medical building. A subsequent inspection of the building revealed that the rear storage door had been pried open. Inside a crawl space underneath the building, police found a substantial amount of flammable materials which included (1) four canisters of propane, (2) two gallon jugs and fifteen milk cartons containing gasoline, (3) three Wall Street Journals with address labels listing the defendant's name and address, and (4) two other newspapers and a roll of wax paper.

Thereafter, defendant was taken to the Bowling Green police station for booking. Detective David Payne gave defendant a standard Waiver of Rights Form which the defendant read and refused to sign. Payne again advised defendant of his Miranda rights and the defendant indicated that "he didn't want to say anything about the case", and that he wanted to talk to his lawyer. The defendant contacted his attorney on the telephone, and the attorney told Payne that his client did not wish to make a statement at this time. After this conversation, Payne completed the defendant's identification form. The record indicates that Payne asked the defendant several questions on such topics as the defendant's address and date of birth. Payne also used the defendant's driver's license as a source of information. The defendant was also fingerprinted and photographed.

After the booking process was completed, the officer who was with the defendant and Detective Payne took the paperwork into another room in order to have it typed. As Payne and the defendant sat in the room alone, defendant suddenly stated "[d]o you think if I make restitution for the damages that have been done, would the charges be dropped?" This statement was admitted at trial after the district court determined that the defendant had voluntarily waived his privilege against self-incrimination. Defendant was later convicted on one count of attempted destruction of a building used in interstate commerce by means of an explosive, 18 U.S.C. Sec. 844(i), and now brings this appeal.

II.

When this incident occurred in February 1982, 18 U.S.C. Sec. 844(i) read in pertinent part:

(i) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both; ....

We are aware that Congress has since amended section 844(i) to include destruction or attempted destruction "by means of fire or an explosive, ...." See Anti-Arson Act of 1982, Pub.L. No. 97-298, Sec. 2(c), 96 Stat. 1319 (1982) (codified as amended at 18 U.S.C. Sec. 844(i) (West Supp.1983)). Nevertheless, since this amendment was not approved until October 12, 1982, we must interpret the statute as it existed on the date of the alleged offense.

Defendant contends that the materials used in the attempted destruction are no more than "very common materials of arson" which do not fall within the statutory definition of "explosive." In this context, defendant maintains that section 844(i) was never meant to be a federal arson statute but was intended to protect buildings against "the specific evil of bombing."

18 U.S.C. Sec. 844(j) defines the term "explosive" for purposes of section 844(i) as follows:

For purposes of subsection [ ] ... (i) of this section, the term "explosive" means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuzes (other than electric circuit breakers), detonators, 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.

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

(5) The term "explosive or incendiary device" means (A) dynamite and all other forms of high explosives, (B) any explosive bomb, grenade, missile, or similar device, and (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 individual acting alone.

We acknowledge that, prior to the 1982 amendments to section 844(i), the circuits were split over whether a mixture of oxygen and a combustible liquid such as gasoline constituted an "explosive" as defined by 18 U.S.C. Sec. 844(j). The Ninth Circuit concluded that such air-fuel mixtures do not fall within the statutory definition of "explosive" after finding "no indication that [section 844(i) ] was meant to overlap state arson law relating to buildings in interstate commerce." United States v. Gere, 662 F.2d 1291, 1296 (9th Cir.1981) (fire ignited by "trailers" of photocopier fluid and fluid-soaked materials); Accord United States v. Cutler, 676 F.2d 1245, 1248 (9th Cir.1982) (twenty gallons of gasoline spread throughout warehouse). The Seventh, Tenth and Eleventh Circuits, however, took the position that such air-fuel mixtures were "explosives" under section 844(j). United States v. Agrillo-Ladlad, 675 F.2d 905, 907-12 (7th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 66, 74 L.Ed.2d 67 (1982) (naptha-soaked newspapers spread across floor); United States v. Poulos, 667 F.2d 939, 941-42 (10th Cir.1982) (gasoline poured around floor of building); United States v. Hewitt, 663 F.2d 1381, 1389 (11th Cir.1981) (ten gallons of gasoline poured down roof vent into building).

In this case, the defendant did not rely solely on containers of gasoline. Instead, he used a combination of gasoline and four canisters of propane gas. The explosive potential of this combination was described by Col. Warren L. Parker, the government's expert witness. Parker referred to the materials assembled in the crawl space as an "improvised incendiary bomb," and identified the two potential sources of an explosion to be (1) the propane canisters, and (2) the vapors from the gasoline. He described the propane as being "a very volatile gas contained under pressure." Once the gasoline was ignited, Parker testified that the build-up of heat and intensity would cause the propane canisters to "rupture and vent adding an explosive force." He added that there might also be a second "vapor type explosion" once the flames reached the propane gas which had escaped from the canisters. Parker also indicated that the vapors from the gasoline could have spread throughout the building to form an "explosive gasoline air vapor mixture." When commenting on the destructive capability of these materials, Parker testified:

With the amount of gasoline and propane, there could have been an explosion that could have completely destroyed the whole building in the process of starting the fire.

The explosive potential of these materials is clearly established in the record. Indeed, after reviewing the plain wording of sections 844(j) and 232(5), the testimony of Col. Parker, and the applicable case law, we are convinced that these materials are properly categorized as an "incendiary bomb" under 18 U.S.C. Sec. 232(5). Accordingly, we hold that these materials constitute an "explosive" as defined by section 844(j). Since Congress has amended 18 U.S.C. Sec. 844(i) to include destruction by fire, we should not have to face this problem again.

III.

The defendant argues that his "restitution"...