U.S. v. Lorence, 82-2056

• Citation: 706 F.2d 512
• Decision Date: 23 May 1983
• Docket Number: No. 82-2056,82-2056
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Michael LORENCE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 512

706 F.2d 512

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Michael LORENCE, Defendant-Appellant.

No. 82-2056.

United States Court of Appeals Fifth Circuit.

May 23, 1983.

Tony Martinez, Brownsville, Tex., for defendant-appellant.

John M. Potter, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before WILLIAMS and JOLLY, Circuit Judges, and WILL^*, District Judge.

JERRE S. WILLIAMS, Circuit Judge.

Jeffrey M. Lorence was convicted by a jury of maliciously destroying a building used in interstate commerce by means of an explosive, in violation of 18 U.S.C. Sec. 844(i). On appeal, Lorence argues that the government lacked jurisdiction to prosecute because the fire charged in the indictment did not involve the use of an "explosive", as contemplated by the statute. Alternatively, he argues that there was insufficient evidence to support his conviction. Finding no merit to either claim, we affirm the judgment of the district court.

I. FACTS

The building Lorence was convicted of destroying housed a complex of commercial businesses in Brownsville, Texas. Lorence had once rented the building and sublet the premises for use as an automotive brake shop, paint and body shop, and sign shop. Three months before the fire, Lorence was notified that his lease was being terminated because he was continually delinquent in the payment of rent and because the premises were unclean. Payments by the tenants were then made directly to the owner of the building, but Lorence maintained close relations with the operators of the shops, and had insured an inventory of "transmission kits" stored in the brake shop for $30,000.00.

On the morning of May 22, 1981, Lorence drove to the building's brake shop. He testified that he intended to do some repair work on a pick-up truck he had earlier taken to the shop. ¹ It was a Sunday, and no one else was working. Lorence opened the garage to the shop and placed the pickup, whose wheels had been removed, on a wrecker in order to transport it into the shop. The pickup, which had a fifty-five gallon drum two-thirds filled with gasoline in the back, had earlier been moved by the operator of the brake shop from inside the building to a parking place on the street. Shortly thereafter, there were two large explosions. Lorence was found by police sitting on the curb of the street outside the building, his head in his hands. There was a "strong smell" of gasoline on his clothing. Lorence told investigators that he had been surprised by the explosions after moving his truck inside the building, that he smelled of gasoline because he had handled gasoline in his efforts to start the wrecker to tow the truck into the garage, and that he believed he might accidentally have started the fire in the bathroom by turning on an air compressor. A government witness, however, testified that Lorence's explanation of the possible origin of the fire and explosion was impossible because the air compressor had been turned off at the time of the fire.

Testimony at trial by various government experts and inspectors indicated that the fire had begun in a bathroom adjacent to the brake shop and had spread through the complex's garage areas, ultimately causing at least one fifty-five gallon drum of gasoline to explode. ² Analysis of materials remaining after the fire led the experts to conclude that layers of newspapers saturated with gasoline had been laid out in rows or "trailers" ³ from the bathroom toward the garage area, by which means the fire spread. Gasoline had additionally been poured over the hoods and roofs of several cars in the garage areas. Charred remains of newspapers were found inside the two vehicles in the brake shop which were owned and insured by Lorence. A partially empty canister of gasoline was found in the front seat of Lorence's stationwagon parked outside the building. The entire complex was gutted by the force of the explosions.

Evidence introduced at trial indicated that Lorence had suffered severe financial difficulties during the months preceding the fire. In addition to having been evicted for nonpayment of rent, Lorence had had several checks returned for insufficient funds, and a local bank had initiated foreclosure proceedings against a Midas Muffler Shop which he operated in Brownsville. A few months before the fire, Lorence told the operator of the paint and body shop that the complex was a "fire-trap" and that "one of these days [he] might burn it [himself]."

Following a trial before a jury, Lorence was found guilty. He was sentenced to five years imprisonment, which was suspended on the condition that he make restitution to the owner of the building. This appeal follows.

II. INTERPRETATION OF 18 U.S.C. Sec. 844(i)

Lorence was convicted under 18 U.S.C. Sec. 844(i) which prohibits the malicious destruction of a building used in interstate commerce by means of an explosive. ⁴ He contends that spreading gasoline-soaked newspapers which ignited a fifty-five gallon drum of gasoline did not constitute the use of an "explosive" as contemplated by the Act. Thus, we must consider the meaning of "explosive" within 18 U.S.C. Sec. 844(i) to determine whether Lorence's acts fall within the ambit of the statute.

Section 844(i) is part of Title XI of the Organized Crime Control Act, which establishes federal investigative and prosecutorial authority over the criminal use of explosives. It was passed by Congress in 1970 in response to the increasing incidences of bombing and destruction of federal and commercial property occurring at that time. H.R.Rep. No. 1549, 91st Cong., 2d Sess. 6, reprinted in 1970 U.S.Code Cong. & Ad.News 4007, 4013. ⁵ Title XI both regulates by controlling distribution, transportation and storage of explosives, 18 U.S.C. Secs. 842, 843, and criminalizes by providing criminal penalties for their intentional misuse. 18 U.S.C. Sec. 844.

The title contains two separate definitions of the term "explosive", which correspond respectively to these regulatory and criminal portions. With respect to the regulatory provisions, an "explosive" is limited to "any chemical compound, mixture, or device, the primary or common purpose of which is to function by explosion..." 18 U.S.C. Sec. 841(d) (emphasis added). The purpose of this exclusion is to eliminate commonly used mixtures, such as gasoline and ammonium nitrate, a fertilizer, from interstate regulation as explosives. See Hearings on H.R. 17154, H.R. 16699, H.R. 18573 Before Subcomm. No. 5 of the Comm. on the Judiciary, House of Rep., 91st Cong., 2d Sess. 157, reprinted in 1970 U.S.Code Cong. & Ad.News 4007, 4041. For purposes of sections 844(d) through (j) which deal with the malicious use of explosives, however, there is a different definition:

(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).

Under this provision "explosives" are defined as falling into three categories: (1) articles like gun powder and blasting material that are commonly used as explosives; (2) explosive or incendiary devices within the meaning of 18 U.S.C. Sec. 232(5)(C); ⁶ and (3) chemical compounds or mixtures that may cause an explosion when ignited. See United States v. Hepp, 656 F.2d 350, 352 (8th Cir.1981); United States v. Hewitt, 663 F.2d 1381, 1389 (11th Cir.1981).

We note initially that the prosecution and the defense focused only on this third definitional category of "explosive," both at trial and on appeal. Accordingly, our review will likewise be limited to determining whether the gasoline used by Lorence in this case constituted "any chemical compound, mechanical mixture, or device that contains any oxidizing and combustible unit ... in such proportions ... that ignition by fire ... may cause an explosion." 18 U.S.C. Sec. 844(j). We need not consider whether the gasoline-soaked newspapers and drum constituted an "incendiary bomb" within the meaning of 18 U.S.C. Sec. 232(5)(C). ⁷

Lorence argues that because gasoline is frequently used as an accelerant in cases of "ordinary arson" Congress could not have intended to extend federal jurisdiction to arson involving the use of gasoline. But the law is otherwise. While it is true that arsonists bent on destruction of property will often resort to the use of gasoline as a means to start a fire or increase its intensity, this fact alone does not remove the use of gasoline from the purview of Title XI. An analysis of the language of Sec. 844(j) supports the conclusion that gasoline can be an explosive when used in a manner to make it likely that an explosion will take place.

In the instant case, Lorence soaked layers of newspapers with gasoline. He placed these newspapers in a deliberate pattern so as to spread the fire in the direction of fifty-five gallon drums containing gasoline ⁸ and in the direction of several automobiles which also contained gasoline. Under these conditions, a violent explosion was highly likely to occur.

A chemist qualified as an expert in arson analysis testified on behalf of the government that gasoline is a "chemical compound" capable of causing an explosion, and thus technically satisfies the definitional requirements of Sec. 844(j) even in the...