United States v. Birchfield, 80-30009.
| Decision Date | 05 March 1980 |
| Docket Number | No. 80-30009.,80-30009. |
| Citation | 486 F. Supp. 137 |
| Parties | UNITED STATES of America v. Junior Lee BIRCHFIELD. |
| Court | U.S. District Court — Middle District of Tennessee |
Bob Lynch, Jr., Asst. U. S. Atty., Nashville, Tenn., for plaintiff.
Alfred H. Knight, Nashville, Tenn., for defendant.
The defendant Birchfield has moved to dismiss Count One of the three counts charged in his indictment. For the reasons to be discussed below, the Court will order that paragraph 1 of Count One be stricken, but the motion to dismiss Count One, as amended by this order, will be denied. The Court will further order, sua sponte, that Count Three of the indictment be dismissed in its entirety.
Count One alleges that the defendant Birchfield conspired with Joseph Gutierrez to commit two different offenses against the United States. The government first charges, in paragraph 1 of Count One, that the defendant and Gutierrez conspired to destroy a furniture store by means of an explosive. Paragraph 2 alleges a conspiracy to obtain money by means of false pretenses through the use of the Postal Service. The defendant's motion deals exclusively with paragraph 1.
Specifically, Count One alleges, essentially in the terms of the applicable statute, that the defendant conspired to "destroy by means of an explosive, that is, the use of a flaming piece of paper thrown into a building through a hole in the roof after gasoline had been poured throughout the building named Rene's New and Used Furniture Store . . . in violation of Title 18, United States Code, Section 844(i)." Defendant argues that using a flaming paper to ignite gasoline poured throughout a building does not constitute the "means of an explosive" contemplated by the statute.
Section 844(j) of Title 18 defines "explosives" thus:
(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.
The definition in section 232(5), which section 844(j) incorporates, further defines "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.
Thus the issue to be decided is whether throwing lighted paper onto uncontained gasoline inside a building amounts to the use of an explosive or incendiary device under either of these definitional statutes. The defendant argues that the common meaning of "explosive" does not encompass the means of destruction described in the indictment, nor does either of the definitional statutes (sections 844(j) and 232(5)). The government contends that paragraph 1 of the indictment describes an "incendiary device" as defined in section 232(5). There is apparently no federal case law dealing with the definition of explosive or incendiary device in this context. However, the Michigan Court of Appeals has held that under a Michigan statute very similar to 18 U.S.C. § 844(j), gasoline is not an explosive. People v. Robinson, 37 Mich. App. 15, 194 N.W.2d 436, aff'd, 387 Mich. 758, 195 N.W.2d 278 (1971).
This Court accepts the defendant's argument that throwing paper onto a gasoline-soaked floor fails to constitute the use of an explosive as contemplated by 18 U.S.C. § 844(i). The Court will take judicial notice that the form of destruction described in paragraph 1 of the indictment is a very common means of arson, and in the absence of clear statutory language or a compelling legislative history, this Court must assume that Congress, in enacting 18 U.S.C. § 844, did not intend to exert federal jurisdiction over this traditional area of state concern. As the defendant points out, 18 U.S.C. § 844 is part of the so-called "Explosive Control Act," Pub.L. No. 91-452, Title XI, § 1102(a), 84 Stat. 956 (1970), which constitutes Title XI of the Organized Crime Control Act of 1970. The legislative history of section 844 reflects a primary concern over the large number of bombing incidents that occurred throughout the country in 1969 and 1970. See 1971 U.S.Code Cong. & Admin.News, pp. 4013-14, 4041-47. The legislative history in no way indicates any congressional intent to extend federal jurisdiction over arson cases, and thus this Court will apply the canon of construction that "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the State-Federal balance." United States v. Sutton, 605 F.2d 260, 270 (6th Cir. 1979), quoting United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971).
The defendant should also prevail based on the principle of statutory construction that criminal statutes are to be construed strictly, and any ambiguities should be resolved in favor of lenity. United States v. Sutton, 605 F.2d at 269, quoting Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971). Even when viewed in the light most favorable to the government, the question of whether either definition in 18 U.S.C. § 844(j) or 232(5) encompasses the device of throwing a flaming paper onto a...
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...when we decided Agrillo-Ladlad, and we find it unpersuasive now. Similarly, we reject the reasoning of United States v. Birchfield, 486 F.Supp. 137 (N.D.Tenn.1980). It is clear that the gasoline poured throughout the Bull-n-Bear was an explosive within the meaning of section 844(j). Wadie H......
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