U.S. v. Gelb, s. 643

Decision Date15 February 1983
Docket Number644,Nos. 643,D,s. 643
Citation700 F.2d 875
PartiesUNITED STATES of America, Appellee, v. Joseph GELB, Defendant-Appellant. ockets 82-1026, 82-1264.
CourtU.S. Court of Appeals — Second Circuit

Barry Bassis, The Legal Aid Soc., Federal Defender Services Unit, New York City, for defendant-appellant.

Max Sayah, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., Mary McGowan Davis, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y.), for appellee.

Before OAKES, VAN GRAAFEILAND and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Joseph Gelb appeals from the judgment of the United States District Court for the Eastern District of New York, Mishler, J., after a jury trial convicting him of (1) maliciously damaging and destroying his business premises by means of an "explosive," 18 U.S.C. Sec. 844(i) (1976); (2) using an "explosive" to commit a felony, 18 U.S.C. Sec. 844(h) (1976); and (3) eight counts of mail fraud, 18 U.S.C. Secs. 1341, 1342 (1976). Gelb raises four claims on appeal, arguing that (1) uncontained gasoline is not an "explosive" or "incendiary device" within the meaning of 18 U.S.C. Sec. 844(j) (1976); (2) the evidence submitted at trial was insufficient as a matter of law to convict him; (3) the government failed to prove an intent to defraud under 18 U.S.C. Secs. 1341, 1342 (1976); and (4) the court abused its discretion when denying his Rule 33 motion for a new trial.

We find that uncontained gasoline is not an "explosive" or "incendiary device" within the meaning of 18 U.S.C. Sec. 844(j) (1976) and therefore reverse the convictions obtained under that statute. Because the additional claims raised by the appellant lack substantial merit, we affirm the decision of the district court on the remaining counts.

BACKGROUND

Appellant Joseph Gelb owned and operated several businesses from a commercial building located at 10-12 Franklin Place in Woodmere, New York. During the evening of April 26, 1980, the Franklin Place premises were destroyed by fire. Subsequent investigations by the Nassau County Fire Marshall's office revealed that the fire was intentionally set by use of uncontained gasoline.

Appellant Gelb was indicted and charged with one count of maliciously damaging and destroying a business premises by means of an "explosive," 18 U.S.C. Sec. 844(i) (1976); one count of using an "explosive" to commit a felony, 18 U.S.C. Sec. 844(h) (1976); and eight counts of using the mails to defraud an insurance company, 18 U.S.C. Secs. 1341, 1342 (1976). At trial, the government's case was based principally on the testimony of four expert witnesses who substantially corroborated the prosecution's theory that the Franklin Place fire was intentionally set by means of an accelerant. Two of these experts, Thomas Russo and Michael DiMarco, testified that they removed three debris samples from the fire scene shortly after the blaze, and based upon subsequent gas chromotograph testing, they detected the presence of gasoline in two of these samples. Mr. Robert Doran, a supervising fire investigator for Nassau County, testified that he examined the scene later that night Additional circumstantial evidence revealed that Gelb had more than doubled his insurance coverage approximately three weeks before the blaze and that immediately after the fire had offered to sell his business for one dollar if the prospective buyer would assume his outstanding business debts. The government also showed that Gelb entered the premises shortly before the fire and that he was observed leaving the building approximately five minutes before the blaze was reported. Finally, the evidence disclosed that the appellant grossly inflated his fire loss and fabricated some losses when submitting his insurance claim.

and in his expert opinion, the fire was caused by the ignition of a volatile liquid.

The trial commenced on October 19, 1981, and the jury returned its verdict approximately three weeks later, on November 5, 1981, finding the defendant guilty of all charges in the indictment. Gelb was sentenced on January 18, 1982, to a prison term of two years on each count, sentences to run concurrently. After trial, counsel for the appellant submitted a motion pursuant to Fed.R.Crim.P. 33 asking the court to order a new trial based upon evidence allegedly discovered after trial. The district judge denied the appellant's Rule 33 motion, and the present appeal followed.

DISCUSSION
A. Is Uncontained Gasoline an "Explosive" Within the Meaning of 18 U.S.C. Sec. 844(j) (1976)?

The "Explosive Control Act," which constitutes Title XI of the Organized Crime Control Act of 1970, Pub.L. No. 91-452, Title XI, Sec. 1102(a), 84 Stat. 922, 952 (1970) (codified at 18 U.S.C. Secs. 841-48 (1976)), creates a comprehensive regulatory scheme to control the flow of "explosives" travelling in interstate commerce. The Act also contains a strong penal section which extends federal jurisdiction to those crimes where explosives are used to damage or destroy property or to commit a felony. See 18 U.S.C. Sec. 844(h) & (i) (1976).

"Explosives" are defined in the penal section of the Act as:

(j) 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, 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.

18 U.S.C. Sec. 844(j) (1976). The definition in section 232(5), which is incorporated by reference in section 844(j), further defines "explosive" to include:

(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.

18 U.S.C. Sec. 232(5) (1976).

The indictment charged the appellant with using an "explosive" to damage and destroy a commercial building and commit a felony in violation of 18 U.S.C. Secs. 844(h) & (i) (1976). The parties concede for purposes of this appeal that the Franklin Place fire was caused by use of uncontained gasoline, an accelerant frequently used in the commission of arson. Indeed, the facts presented at trial revealed a classic case of arson, but failed to disclose any evidence of an explosion or bombing. Hence, we must determine first whether Congress intended through the Explosive Control Act to extend federal jurisdiction to those crimes involving common law arson, and more particularly whether uncontained gasoline is properly included within the statutory definition of "explosive."

The issue presented here is not easily resolved, as evidenced by the substantial division among the federal circuit courts that have considered this question. Those circuits favoring a narrow reading explain that the Act was intended to assist federal authorities in their efforts to control the rash of "political bombings" by subversive groups in the late 1960s and was never envisaged as an anti-arson bill. See United States v. Gere, 662 F.2d 1291, 1296 (9th Cir.1981); United States v. Birchfield, 486 F.Supp. 137, 138-39 (M.D.Tenn.1980). The courts favoring a broad reading of the Act to include substances like uncontained gasoline rely on the expansive definitional language in the statute and scientific evidence showing that chemical compounds such as gasoline may cause an explosion under certain atmospheric conditions. See United States v. Agrillo-Ladlad, 675 F.2d 905, 907 (7th Cir.1982); United States v. Poulos, 667 F.2d 939, 941-42 (10th Cir.1982); United States v. Hepp, 656 F.2d 350, 352-53 (8th Cir.1981).

We are persuaded by the former view. The legislative history of the Act speaks of the dangers posed by subversive groups in the society. The perceived threat lay not so much in ideology or political objective, but rather focused on the alarming trend during the late 1960s when "selective bombing" emerged as a frequent vehicle for extreme social and political protest:

Mr. Chairman, I am pleased that today we begin hearings on several bills designed to strengthen Federal laws against the illegal use of explosives. Last year we witnessed in this country a violent and tragic increase in bombings. Radicals from the left and from the right spread their terror throughout the land, bombing police stations, college campuses, dormitories, cafeterias, ROTC offices, high schools, antiwar coffeehouses, homes of college administrators and teachers, homes of prosecutors, theaters, public utilities, Selective Service offices, induction centers, stores, corporate headquarters, defense plants, and Federal office buildings.

Explosives Control: Hearings on H.R. 17154, H.R. 16699, H.R. 18573 Before Subcomm. No. 5 of the House Comm. on the Judiciary (Hearings), 91st Cong., 2d Sess. 33 (1970) (remarks of Rep. McCulloch); see id. at 83 (remarks of Eugene Rossides, Asst. Sec. of Treasury), 288 (remarks of Rep. Goldwater), 296 (remarks of Rep. Wylie--"The alarming increase in the use of bombs as weapons of terror, intimidation, destruction and death is a threat to social decorum and innocent law-abiding citizens that this...

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