U.S. v. Zabic

• Decision Date: 28 September 1984
• Docket Number: Nos. 83-1838,83-1839,s. 83-1838
• Citation: 745 F.2d 464
• Parties: 16 Fed. R. Evid. Serv. 692 UNITED STATES of America, Plaintiff-Appellee, v. Ilija ZABIC and Ivan Siprak, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 464

745 F.2d 464

16 Fed. R. Evid. Serv. 692

UNITED STATES of America, Plaintiff-Appellee, v. Ilija ZABIC and Ivan Siprak, Defendants-Appellants.

Nos. 83-1838, 83-1839.

United States Court of Appeals Seventh Circuit.

Argued Feb. 17, 1984.

Decided Sept. 28, 1984.

Allan Ackerman, Mary D. Harris, Gardner, Carton & Douglas, Chicago, Ill., for defendants-appellants.

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

Before CUMMINGS, Chief Judge, COFFEY, Circuit Judge, and BEATTY, District Judge. ^*

COFFEY, Circuit Judge.

The defendant Ilija Zabic appeals his conviction for malicious destruction of property by explosives in violation of 18 U.S.C. Sec. 844(i), mail fraud in violation of 18 U.S.C. Sec. 1341, conspiracy to destroy property by explosives and commit mail fraud in violation of 18 U.S.C. Sec. 371, and obstruction of justice in violation of 18 U.S.C. Sec. 1503. The defendant Ivan Siprak appeals the sentence imposed after his plea of guilty to the crimes of malicious destruction of property by explosives in violation of 18 U.S.C. Sec. 844(i), and conspiracy to commit the same in violation of 18 U.S.C. Sec. 371. We affirm the conviction of Zabic on all counts and the sentence imposed upon Siprak.

I

The record reveals that on October 27, 1980, Ibrahim Kraja and Alil Vukic purchased a 43-unit rental apartment building located at 4417-4429 North Clifton Avenue, Chicago, Illinois, for $100,000. In November 1980, Mike Pavlovik, the real estate broker who negotiated the sale, arranged for a $350,000 fire insurance policy on the apartment building. The policy was issued with the understanding between Pavlovik and the insurer that the commercial rental building, which was partially occupied by tenants, would be renovated and fully occupied. Later that month, on November 22, 1980, Kraja and Vukic sold the insured building to Ivan Buljubasic and Nedjelko Jukic for $137,500. Sometime prior to January 5, 1981, Buljubasic purchased Jukic's interest and became the sole owner of the building and the beneficiary of the fire insurance policy. The record further reveals that the People's Gas, Light & Coke Company of Illinois supplied natural gas to the commercial rental building for purposes of heating, cooking, and hot water, between 1974 and February 12, 1981, when the building was declared uninhabitable and ordered vacated. ¹ This natural gas traveled via interstate pipelines and was obtained "from a variety of locations outside Illinois in the United States and Canada."

In December 1980, the defendant, Ivan Siprak, a self-employed remodeler and repairman of old buildings, asked his employee, Howard Vess, if he "wanted to burn a building?" Vess refused the offer and the following month, in January of 1981, Siprak inquired of another employee, Robert Samuelson, if he wanted to "make extra money by starting a fire." Siprak added that "after the insurance was paid off, we would remodel it ourselves." At that time Samuelson agreed to burn an unidentified building for $600.

On January 17, 1981, Siprak and Samuelson drove to 4543 North Magnolia Avenue, Chicago, Illinois, where they met the defendant Ilija Zabic in the basement of another partially occupied apartment rental building that Siprak and Zabic were renovating. Zabic uncovered a five-gallon plastic paint container that he had hidden beneath a pile of scrap plywood, displayed the gasoline contained therein, and instructed Samuelson on how to prepare and ignite a home-made delayed timer consisting of a cigarette and a book of matches. ² The defendants assured Samuelson that they would place containers of gasoline throughout the building at the appropriate time and "not to worry about the money after the fire." Following this conversation, Siprak drove Samuelson to the building owned by Ivan Buljubasic at 4417-4429 North Clifton Avenue and pointed out that this was the building to be burned. Siprak added that this commercial rental building was unoccupied, however the unchallenged evidence introduced at trial directly contradicts this statement and reveals that tenants were legally residing in the building throughout the month of January, 1981.

On January 20, 1981, at approximately 3:00 a.m., Samuelson entered the building at 4417-4429 North Clifton and located eight or nine of the five-gallon plastic containers filled with gasoline that had been strategically placed throughout the building by the defendants. Samuelson poured the gasoline onto the floor of five vacant apartments in the rear of the building, prepared and ignited home-made delayed timers, using a cigarette and a book of matches as instructed by Zabic, and then proceeded to the front of the building where he emptied additional containers of gasoline onto the floor of other vacant apartments and again ignited home-made delayed timers. Before the Chicago Fire Department could bring the ensuing fire under control, the blaze destroyed a number of unoccupied apartment units in the rear of the U-shaped courtyard building.

Later that same day Samuelson returned home, notified Siprak of the fire, and the two of them traveled to a local tavern where they met Zabic. The defendants informed Samuelson that he "did a good job on the back of the building [but] the front part wasn't that good because the fire department put it out." The defendants asked Samuelson to "go back and finish it," promising to pay him $300 for the already burned rear portion and an additional $300 for the front portion of the building. Samuelson agreed to complete the task and was paid $200 with the assurance that "after the next fire ... we will give it all to you." The record reveals that during this same time period, Siprak approached his employee Howard Vess and once again asked if he "wanted to burn a building," explaining that "it was for the insurance." Vess once more refused the offer.

On January 22, 1981, Samuelson met Siprak to discuss the previous fire and experiment with flammable products in Siprak's basement. Siprak tested the combustible quality of a gas and oil mix, paint thinner, and then "took about a gallon of gas out of a moped he had in the basement and put it in a paint thinner can," instructing Samuelson that this would be a sufficient quantity of gasoline to finish off the building. The next morning, at approximately 3:30 a.m., Samuelson entered the apartment building at 4417-4429 North Clifton, emptied the gallon can of gasoline down an interior stairway, prepared and ignited a home-made delayed timer as instructed by Zabic, and exited the premises. When the gasoline failed to ignite, Samuelson called Siprak claiming that he "needed more gas." Siprak responded, "we'll fix something up."

The following day, January 24, 1981, Samuelson accompanied Siprak to 4553 North Magnolia where they again met Zabic. The defendants informed Samuelson that they "had the gas" and that it would be placed in a metal locker outside the basement door at 4543 North Magnolia. The defendants instructed Samuelson to transport the gasoline to 4417-4429 North Clifton, pour the flammable liquid down an interior stairway, and prepare a home-made delayed timer that would ignite the gasoline and thus finish burning the building. At approximately 2:00 a.m. on January 25, 1981, Samuelson retrieved the gasoline from 4543 North Magnolia and placed it across the alley from 4417-4429 North Clifton. At 5:00 a.m. Samuelson returned to Clifton Avenue and asked a passerby to "keep an eye out for the cops ... because [he] ... was going to burn the building." Samuelson entered the building, poured gasoline down the stairway that led from the third to first floor, and prepared a home-made delayed timer using a cigarette and a book of matches as instructed by Zabic. When Samuelson exited the building, he was immediately attacked by three men who wanted to take him "in the alley and cut [him] up," for attempting to start a fire in their neighborhood. The three men detained Samuelson until the police arrived to investigate the unsuccessful arson attempt. After detecting "gas on [Samuelson's] feet," the police handcuffed Samuelson and transported him to police headquarters. During interrogation, Samuelson implicated Zabic in the attempted fire and directed the police to 4543 North Magnolia where they recovered a number of five-gallon plastic containers filled with gasoline. Samuelson was returned to police headquarters and at that time he called Siprak to inform him that he (Samuelson) had been arrested.

Following his conversation with Samuelson, Siprak discussed the situation with Zabic who exclaimed that "the biggest mistake he made was to let [Samuelson] see him, to know he was involved." The next morning, January 26, 1981, Diane Siprak, the defendant's wife, following her husband's order, attended Samuelson's bond hearing "to find out what the judge was going to do with him." While at the hearing, Diane observed Ivan Buljubasic, the owner of the apartment building at 4417-4429 North Clifton, standing in the courtroom. Mrs. Siprak returned home, informed the defendants of Buljubasic's presence, and was immediately questioned by Zabic, "What was he doing there?" Shortly thereafter, Siprak informed his wife that he and Zabic were going to speak with Buljubasic and a lawyer. Siprak returned home two hours later, handed his wife $2,000, and stated that he was going to Florida with Zabic.

Soon after arriving in Florida, Siprak called his wife and inquired as to whether the police had been asking questions about him or Zabic and whether the police had visited the Siprak's house looking for him or Zabic. Diane Siprak responded "no," and was then instructed to "keep in touch" if she heard anything about Samuelson. In early February 1981, Zabic was robbed of $2,000 that he had carried with him to Florida. Zabic immediately returned to Chicago and met Siprak's wife, informing her that "he made the mistake of letting [Samuelson]...