Petition — Agrillo-Ladlad v. United States

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Supreme Court of the United States

Ocroszr Term, 1981

ANA ERIKA AGRILLO LADLAD and

LAWRENCE J. FLEMING,

Petitioners,

vs.

UNITED STATES OF AMERICA,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Rosert J. Wxser,

221 N. LaSalle Street,

Chicago, Illinois 60601,

(312) 782-1983,

Counsel for Petitioners,

Ana Erika Agrillo-Ladlad and

Lawrence J. Fleming.

Keenan Printing Company 312-648-0050 ses

i —Whether naptha or gasoline soaked newspapers

spread on the floor of a building to direct a fire

and lighted by a burning newspaper constitute an

explosive for the purpose of 18 U.S.C. § 844(j)?

ii — Whether the term explosive“ as used in 18 U.S.C.

§ 844(i) should be construed to include common law

arson where a fire is set with the use of an accelerant

and paper ‘‘trailers’’?

iii —Whether the jury instruction defining ‘‘incendiary

device’’ is an accurate statement of law?

iii.

INDEX TO PETITION

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Reasons for Granting the Wrint 7

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TABLE OF AUTHORITIES

Casns Pace

Bollenbach v. United States, 326 U.S. 607 (1960) ...... 17

Holy Trinity Church v. United States, 143 U.S. 457

FF 13

National Woodwork Manufacturers Association v. Na-

tional Labor Relations Board, 386 U.S. 612 (1967) .. 12

Rewis v. United States, 401 U.S. 808 (1970) ........ 13, 14

United States v. Baranski, 484 F. 2d 556 (7th Cir.

—— dte a schts uboedes Cede ˙ — K éccbbheseses 16

United States v. Bass, 404 U.S. 336 (1971) .......... 14

United States v. Birchfield, 486 F. Supp. 137 (W. D.

EEE „ 8, 9, 15, 17

United States v. Campos-Serrano, 404 U.S. 293 (1971) 14

United States v. Donnelly, 179 F. 2d 227 (7th Cir.

. cbbcdeahs cates cddaedcevcsteéece 17

United States v. Gere, 662 F. 2d 1291 (9th Cir. 1981) .. 8,9

iv.

Statutes Pace

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eee ens 3, 8, 16

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F ͥð tree 3, 8, 11

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Rules

Rule 20, Rules of the Supreme Court 2

Legislative Material

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, chee bncatneedees sve 12

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, cab uasvatayeecs decete 12

1970 U.S. Code Cong. and Adm. News 4011 ....... 10

1970 U.S. Code Cong. and Adm. News 4013-4 ...... 11

1970 U.S. Code Cong. and Adm. News 4047 ....... 11

IN THE

Supreme Court of the United States

Ocroser Term, 1981

ANA ERIKA AGRILLO LADLAD and

LAWRENCE J. FLEMING,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners, Ana Arika Agrillo-Ladlad and Lawrence

J. Fleming, respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Seventh Circuit, entered

in this proceeding on April 14, 1982.

OPINION BELOW |

The opinion of the court of appeals is, as yet, unreported ;

however, it appears as Appendix A hereto.

PARTIES BELOW

The names of all parties to this proceeding in the court

of appeals appear in the caption of the case.

The judgment of the court of appeals was entered on

April 14, 1982. This petition for certiorari is timely filed

within 60 days after the entry of judgment in the court

below pursuant to Rule 20 of the Rules of the Supreme

Court. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254.

STATUTES INVOLVED

18 U.S.C. § 844(i) :

“(i) Whoever maliciously damages or destroys, or

in any activity affecting interstate or foreign com-

merce shall be imprisoned for not more than ten years

or fined not more than $10,000, or both; and if per-

sonal injury results shall be imprisoned for not more

18 U.S.C. § 844()) :

**(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, fuses

(other than electric circuit breakers), detonators, and

other detonating agents, smokeless powders, other ex-

plosive 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 concus-

sion, by percussion, or by detonation of the compound,

mixture, or device or any part thereof may cause an

explosion.“

18 U.S.C. f 232 (5):

The term explosive or incendiary’ device’ means

(a) dynamite or all other forms of high explosives,

(b) any explosive bomb, grenade, missile, or similar

device, and (e) any incendiary bomb or grenade, fire

bomb, or similar device, including any device which

(i) consists of or includes a breakable container in-

eluding 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.“

STATEMENT OF THE CASE

The judgment below was entered on a verdict of guilty

on both counts of a two count indictment charging the

defendants, Ana Erika Agrillo-Ladlad (hereinafter re-

ferred to as Agrillo-Ladlad’’) and Lawrence J. Fleming

(hereinafter referred to as ‘‘Fleming’’) with violations of

(1) 18 U.S.C. 371 (conspiracy) and (2) 18 U.S.C. § 844(i)

(damaging property by means of an explosive).

Agrillo-Ladlad owned United Latino Press (hereinafter

referred to as United Latino“), a commercial printing

company which leased approximately one half of the usable

space on the sixth floor of a seven story building in Chi-

cago, Illinois. On March 22, 1979, there was a fire in the

United Latino space. At that time, Fleming and Jeffrey

Bennett (hereinafter referred to as ‘‘Bennett’’) worked

for Agrillo-Ladlad.

Bennett, a severed co-defendant, testified at trial for the

government and described setting the fire. He said that

a 55 gallon drum of naptha was purchased and delivered

to United Latino on March 21, 1979; that, at about 1:30

a.m. on March 22, he went to the United Latino office and

began placing pieces of newspaper, end to end on the floor

in a line. He said that he made three lines, or “trailers’’,

which he laid out so they could be ignited from one point.

Bennett said that, after laying out the trailers, he poured

naptha on them. He also spilled naptha on himself.

He further testified that, after spreading the naptha,

he began to work on an electronic ignition unit; and that

the unit was designed to work off a timer and electricity,

whereby a flame would be created to pass through the news-

paper and ignite the naptha. He said that the flames would

then spread along the trailers from the starting point.

Bennett testified that, to attach the ignition unit to a

camera timer, he had to splice some wires; that he neg-

lected to bring wire splicers with him; that he decided to

strip the insulation from the wires by burning them. He

testified that he lit a match and began to burn the insula-

tion from the wires; that the match burned too far and

he dropped it on the floor, setting himself on fire. He

testified that nothing else ignited; that he remained in the

office for awhile, attempting to beat out the fire on his

legs, whereupon his hands became burned. He said that no

fumes ignited and that he ran out of the office to the

hallway where he extinguished the flames by rolling in a

rug.

He testified that, after extinguishing the five on his legs

and arms, he returned to the United Latino office; that

he ignited a piece of paper and dropped it at the inter-

section of the trailers. He further testified that he walked

out of the office, that he noticed no flames or explosions,

that he closed the door and locked it.

Prior to calling Bennett to testify, the government of-

fered the testimony of an investigator from the Chicago

Police Department bomb and arson unit. The investigator

testified that he was called to the United Latino building

on the morning of March 22 where he observed the flames

and smoke on the sixth and seventh floors; and that, con-

sidering the brown-yellow smoke, the white flame and the

even burn he observed inside the building, he concluded

that a petroleum distillant-based product was used as an

accelerant in the fire. He said that this would result in an

‘*explosive-type”’ fire of rapid oxidation, meaning that the

accelerant ignites simultaneously in a contained area. He

identified certain photographs, which he said reflect that

there was a primary fire, which was low and that there

was a secondary fire which gained more heat after it had

oxygen and then burned more severely near the ceiling or

upper reaches of the space.

An agent from the Bureau of Alcohol, Tobacco and Fire-

arms also testified for the government, and defined vari-

ous technical terms and concepts within his expertise. He

defined explosive range” as the range of proper mixture

of fuel to air that has the potential of explosion. He said

that any accelerant that would have a ‘‘flash point” be-

low 100° Fahrenheit would be a flammable liquid and have

a potential for explosion; that the flash point of naptha is

50° Fahrenheit; and that the flash point of gasoline is

—45° Fahrenheit.

The agent explained how naptha or gasoline can be

ignited :

The vapors produced are heavier than air and when

the vapors are produced, they have a tendency to stay

within the immediate area and it’s—actually it’s an

accumulation of vapors that constantly build up and

build up, until they’re—the proper amount of fuel to

air is attained.

If the proper amount—if it's in proportion— the right

proportion of the fuel to air and there is a source

of ignition, there will be an explosion.

a aaa

the simultaneous burning of vapors

. 1

front”, what is that phenomenon?

A. That is the explosive phenomenon. There is

really no difference between an explosive—a rapid

flame and explosive—in high explosives, such as dy-

namite and T.N.T. and what-have-you, the detonating

velocities are measured in the rate of—by the progres-

sion of fire through that material.

Q. And is it measured in the same way with ac-

celerants—in the explosive range?

A. Not in the same way, but it’s the same—same

phenomenon.” (Emphasis supplied).

By way of summary, the agent recognized the distinction

between high explosives, such as dynamite and T.N.T.,

and accelerants which may produce a rapid flame front.

The agent testified that, in his opinion, the combination

of the irailers, the chemical accelerant and the source of

ignition constituted an ‘‘incendiary device.’’

On cross-examinalion, the agent testified that, when

Bennett dropped the burning paper on the naptha, two

things could have happened: 1) ignition of burning of the

accelerant or 2) the explosive phenomena—the rapid flame

front would progress from that point. The agent said that,

in his opinion, every rapid burning is ‘‘an explosive phe-

nomena ; that fire is an explosive phenomena at the

lowest possible range and detonation is ‘‘an explosive phe-

nomena” at the highest possible range; that certain chemi-

cals and compounds, such as dynamite and T.N.T., are

explosives, by themselves; and that naptha has an explo-

sive potential only when it is within the flammable limits,

or the mix with air is in the range of 9% to 6.7%. The

agent testified that, in the strictest sense of the word, every

fire is an explosion because any material capable of oxida-

tion can explode. He cited the example of methane gas

being released from grass clippings as being an explosive.

The Decision Below Is In Conflict

With The Decision Of The Ninth

Circuit Court Of Appeals On The Same Matter

The petitioners were convicted of conspiracy to damage

and destroy, by means of an explosive, property used in

an activity affecting interstate commerce. They were also

convicted of the substantive offense under 18 U.S.C.

§ 844(i). The testimony reflects that Bennett laid out

layers of newspapers, connecting the major pieces of shop

equipment to a central ignition point. After the papers

were laid out, Bennett poured naptha on them and began

to assemble an ignition unit. In doing so, he struck a match

and ignited the naptha which had dripped onto his clothing.

After he extinguished his burning clothing, he lit a piece

of newspaper which he dropped on the central ignition

point. The fire spread across the trailers to the different

pieces of machinery, some of which was owned by United

Latino and on which it carried insurance. As noted by

the court below, the question presented is whether naptha

soaked newspapers strategically spread across the floor

of a building for the purpose of directing a fire and ignited

by a newspaper is a explosive or “incendiary device,“

as defined in 18 U.S.C. § 844(j) and 18 U.S.C. § 232(5).

After reviewing the language of Title XI of the Organized

Crime Control Act of 1970, the legislative history of the

Act, the testimony at trial and case law, the court below

held that the naptha soaked newspapers constitute ‘‘an

explosive“.

Similarly, in United States v. Gere, 662 F. 2d 1291, 1295-6

(9th Cir. 1981) (See Appendix B) the court had to deter-

mine whether trailers“, soaked with photo-copy fluid,

constitute ‘‘an explosive’’ within the meaning of 18 U.S.C.

§ 844(j). The Ninth Circuit, relying upon the language

of the Title XI, legislative history and congressional in-

tent, determined that the fluid soaked trailers were not

„explosives

In United States v. Birchfield, 486 F. Su. 137 (W..

Tenn. 1980), the alleged explosive“ consisted of a gasoline

soaked floor on to which the defendant was accused of

throwing a burning piece of paper. The trial court dis-

missed the indictment, finding that the spreading of gaso-

line throughout a building does not create an explosive“

within the meaning of 18 U.S.C. § 844(i).

In conclusion, there is a clear, substantial and direct

conflict between the decision below and that of the Ninth

Circuit in United States v. Gere, 662 F. 2d 1291, 1295-6 (9th

Cir. 1981), and that of the court in United States v. Birch-

field, supra. To resolve this, a Writ of Certiorari should be

issued.

THE DECISION BELOW SANCTIONS THE UNIN.

TENDED AND UNWARRANTED EXTENSION OF

TITLE XI WHEREBY EVERY ARSON INVOLVING

A BUILDING CONTAINING A BUSINESS AFFECT.

ING INTERSTATE COMMERCE WILL CONSTITUTE

AN EXPLOSION.

In United States v. Gere, 662 F. 2d 1291, 1295-6 (9th Cir.

1981), the Ninth Circuit touched upon the impact of an

overly broad interpretation of the word explosive as

used in 18 U.S.C. 844(i). The court characterized the acts of

the defendant in Gere, supra, as arson. This corresponds to

the reasoning of the court in United States v. Birchfield,

486 F. Supp. 137 (N.D. Tenn. 1980), where it was noted

that the use of trailers to spread or direct a fire is common

to arson. Even in the instant matter, there was expert testi-

mony that every fire is an explosion because any material

capable of oxidation can explode. Agent Cousins, testifying

for the government cited the example of methane gas being

released from grass clippings as being an explosive.

In the same vein, an investigator from the Chicago bomb

and arson unit testified that in the instant matter there was

a primary fire, which was low, and then a secondary fire

which gained more heat after it had oxygen. This secondary

fire, after the build up of heat, often causes an explosion

in that windows are blown out.

Based upon the above, every enclosed burning—i.e. the

burning of the inside of a building—will, if allowed to reach

a certain temperature, result in an explosion. Therefore,

every arson of a commercial building will be a violation of

18 U.S.C. § 844(i).

This is not the plain meaning of the statute nor was it

the intent of Congress. In 1970 U.S. Code Cong. and Adm.

News, p. 4011, it is stated:

„This title (Title XI), added by the committee,

establishes Federal controls over the interstate and

foreign commerce of explosives and is designed to

assist the States to more effectively regulate the sale,

transfer and other disposition of explosives within

their borders.

In addition to the Federal regulatory scheme, title

XI strengthens the Federal criminal law with respect

to the illegal use, transportation or possession of ex-

plosives. Under this part of the title, the definition of

explosives is broadened to include incendiary devices

such as Molotov cocktails’.’’

The congressional intent in adopting Title XI is stated as

follows:

‘*Bombings and the threat of bombings have become

an ugly, recurrent incident of life in cities and on

campuses throaghout our Nation. The absence of any

effective State or local controls clearly attest to the

urgent need to enact strengthened Federal regulation

of explosives.

* * *

Among other matters, the hearing record discloses

that between January 1, 1969, and April 15, 1970

law enforcement officials reported a total of 4,330

bombings, 1,475 attempted bombings, and 35,129

threatened bombings. The Department of Treasury

spokesmen indicated that in this period such bombing

outrages were responsible for the death of 40 persons

and approximately $22 million of property damage.

1970 U.S. Code and Adm. News, p. 4013-4.

Further in the section analysis, and regarding the defini-

tion of explosives as found in Section 844 (j), it is stated:

„Section 844(j) sets forth the definition of ‘explo-

sive’ for the purposes of Section 844(d) through (i).

The use of the se; arate definition is for the purpose

of including incendiary devices within the coverage of

Section 844 (d) through (i), and to make the exceptions

applicable to the regulator: provisions of this chapter

inapplicable to these sections. 1970 U.S. Code Cong.

and Adm. News, 4047. (Emphasis supplied)

The statements of the legislators during the congressional

debates are even more helpful in removing any ambiguity.

On April 23, 1970, Congressman Emanuel Celler, Chairman

of the House Judicary Committee which studied the House

version of Title XI, introduced the legislation into the

House saying:

The bill] is in response to a series of recent bomb-

ing outrages and bomb threats in various parts of the

Nation.’’ 116 Cong. Rec. 12989.

In his statement to the House, Congressman Celler said

that the definition of explosives contained in the bill ex-

pands the definition presently contained in the Federal

Criminal Code to include incendiary bombs, grenades and

similar devices. 116 Cong. Rec. 12990.

On July 21, 1970, Senator Hruska introduced S. B. 4107

which is a predecessor of Title XI. He expressed concern

regarding the rash of bombing incidents across the county

and cited the bombing statistics given above. In explaining

the definition of the word ‘‘explosives’’, Senator Hruska

said:

„The criteal definitions are: ‘explosive materials’

which means, briefly any chemical compound the pri-

mary or common purpose of which is to function by

explosion; ...’’ 116 Cong. Rec. 25155.

During the debate on October 6, 1970, Congressman

Kleppe said:

„In conclusion, I want to commend the members of

the House Judiciary Committee for including title XI,

the administration’s proposals to halt the rash of

bombings across the Nation.’’ 116 Cong. Rec. 35207.

The debate continued on October 7, 1970, at which time

Congressman Mayne, a co-sponsor and lead-off witness on

behalf of the House version of title XI, said:

„Title XI of the bill also finally includes the much

needed antibombing provisions requested by the Presi-

dent. I am proud to have been one of the original

sponsors of the antibombing provisions of the Act,

having introduced the original bill to strengthen our

laws concerning illegal use, transportation or posses-

sion of explosives. . . .’’ 116 Cong. Rec. 35300.

Congressman Hogan also spoke on behaif of Title XI;

„One of the most important aspects of the bill is that

dealing with bombing.

Since the middle of 1969 an unprecedented waive of

explosive bombings has occured across the Nation. The

targets of these terroristic acts include almost every

type of public and private institution, but the attacks

have concentrated most heavily on police stations, court

buildings, corporate offices, military facilities, and

college campuses.’’ 116 Cong. Rec. 35305.

In National Woodwork Manufacturers Association v.

National Labor Relations Board, 386 U.S. 612, 640 (1967),

this Court said:

„It is the sponsors that we look to when the meaning

of the statutory words is in doubt.’’

In Rewis v. United States, 401 U.S. 808, 811 (1970), the

Court gave great weight to what the legislators did not say:

In addition, we are struck by what Congress did not

say. Given the ease with which citizens of our Nation

are able to travel and the existence of many multi-

state metropolitan areas, substantial amounts of

criminal activity, traditionally subject to state regula-

tion, are patronized by out-of-state customers. In such

a context, Congress would certainly recognize that an

expansive Travel Act would alter sensitive federal-

state relationships, could overextend limted federal

police resources, and might well produce sitvations in

which the geographic orign of customers, a matter of

happenstance, would transform relatively minor state

offenses into federal felonies. It is not for us to weigh

the merits of these factors, but the fact that they are

not even discussed in the legislative history of § 1952

strongly suggests that Congress did not intend that

the Travel Act should apply to criminal activity solely

because that activity is at times patronized by persons

from another State.’’

In Holy Trinity Church v. United States, 143 U.S. 457,

463, this Court said:

„Again, another guide to the meaning of a statute

is found in the evil which it is designed to remedy;

and for this the court properly looks at contem-

poraneous events, the situation as it existed, and as it

was pressed upon the attention of the legislative body.’’

Current events then are relevant, and are especially

important to the resolution of the issue involved here. The

statements of the members of Congress concerning bomb-

ings evidences the mood of Congress. What was not said

during the Congressional debates is also important. No-

where is the word ‘‘arson’’ used, and none of the many

statistics cited throughout the debates included the more

common crime of arson.

Probably determinative of the issue is the silence of

Congress when it is recognized that arson has traditionally

been left to the States to prosecute. If it were the intent

of Congress to alter this traditional relationship, certainly

someone would have said something. Yet, there is nothing.

It is universally accepted that ambiguity concerzing the

ambit of criminal statutes should be resolved in favor of

lenity. Rewis v. United States, 401 U.S. 808, 812 (1971);

United States v. Campos-Serrano, 404 U.S. 293, 297 (1971);

United States v. Bass, 404 U.S. 336, 347 (1971). In Bass,

supra, this Court said:

In various ways over the years, we have stated

that ‘when choice has to be made between two readings

of what conduct Congress has made a crime, it is

appropriate, before we choose the harsher alternative,

to require that Congress should have spoken in a

language that is clear and definite.’

Thus, where there is ambiguity in a criminal sta‘ute,

doubts are resolved in favor of the defendant.’’

In analyzing which of two or more interpretations to

attach to an ambiguous statute, the factor of the Federal-

State balance comes into play. In United States v. Bass,

404 U.S. 336, 349, the court discussed this as follows:

There is a second principle supporting today’s re-

sult: Unless Congress conveys its purpose clearly, it

will not be deemed to have significantly changed the

Federal-State balance. Congress has traditionally been

reluctant to define as a Federal crime conduct readily

denounced as criminal by the States. This Congres-

sional policy is rooted in the same concepts of American

Federalism that had provided the basis for judge-made

doctrines. [case cited] As this Court emphasized only

last term in Rewis v. United States, 401 U.S. 808

(1970) ], we will not be quick to assume that Congress

has meant to effect a significant change in the sensitive

relation between Federal and State criminal jurisdic-

tion. In traditionally sensitive areas, such as legisla-

tion affecting the Federal balance, the requirement of

clear statement assures that the legislature has in fact

faced, and intended to bring into issue, the critical

matters involved in the judicial decision.’’ Accord:

U.S. v. Birchfield, 486 F. Supp. 137, 138-9 (M.D. Tenn.

1980)

In conclusion, the expansion of the definition of the term

explosive“ to include arson is unwarranted, and wil! re-

sult in an unintended expansion of federal criminal regula-

tion. Because of the magnitude and potential impact of

this issue, this Court should issue a writ of certiorari.

THE JURY INSTRUCTION DEFINING “EXPLOSIVE”

CONTAINED AN INCORRECT STATEMENT OF

LAW.

The jury was instructed as follows:

The term ‘incendiary device’ means any incendiary

bomb or grennade (sic), fire bomb or similar device.

Any article or device composed of a combustible ma-

terial capable of producing sufficient heat to destroy

property of any kind and having components designed

to ignite that combustible material is under the laws

an incendiary device.

The term ‘explosive’ means:

(1) an incendiary device; or (2) any chemical com-

pound, mechanical mixture or device that contains any

combustible units or other ingredients in such propor-

tions, quantities or packing that ignition by fire of the

compound mixture or device or any part thereof may

cause an explosion.’’ Government Instruction 38.

The term ‘‘incendiary device, as defined in 18 U.S.C.

§ 232(5), is divided into three categories:

(a) dynamite and high explosives ;

(b) any explosive bomb, grenade, missile or similar

device; and

which:

(i) consists of a breakable container, including

a flammable liquid and wick; and

(ii) is portable.

Here, the plain meaning of the words ‘‘incendiary device“

is readily ascertainable. The device may be dynamite or a

high explosive. Naphtha and gasoline spread on trailers

across the floor do not qualify as they are not dynamite

nor explosives, but flammable liquids.

Naphtha or gasoline spread on trailers across the floor

of a room are not bombs, grenades, missiles or similar de-

vices. The clear intent of this provision is to ban portable

explosives. Nor can the government rely upon the general

term ‘‘or similar devices,’’ for under the doctrine of

ejusdem generis, general words following the specific take

their meaning and are limited by the specifics. U.S. v.

Baranski, 484 F. 2d 556, 566 (7th Cir. 1973).

Finally, naphtha or gasoline spread on trailers across the

floor is not an incendiary bomb, fire bomb or similar de-

vice which consists of a breakable container and is portable.

There is, then, no reasonable interpretation of the facts

here which justify the presentation of the ‘‘incendiary de-

vice’’ theory to the jury.

Furthermore, the government’s instruction is overly

broad in that it included within the definition anything

composed of a) combustible material and b) a inethod of

ignition. The concept of unity or portability contained in

the statute is totally lacking. In United States v. Birchfield,

486 F. Supp. 137, 139 (M.D. Tenn. 1980), the Court said:

The statute requires the destruction of a building by

means of an incendiary device, a requirement that im-

plicitly contemplates a separation of identity between

the means of destruction (an explosive) and the object

of destruction (a building). For this reason, the gov-

ernment’s theory that Rene’s Furniture Store enjoyed

a sort of dual existence as both ‘‘building’’ and ‘‘ex-

plosive’’ for the purposes of section 844(i) must be

rejected.

This Court, in Bollenbach v. United States, 326 U.S.

607, 613 (1960), said that a conviction ought not to rest

on an equivocal direction to the jury on a basic issue. In

United States v. Donnelly, 179 F. 2d 227, 233 (7th Cir.

1950), the court reversed a conviction because the jury

was given conflicting instructions : one erroneous and preju-

dicial; the other correct.

The definition of incendiary device, which was given to

the jury, was a misstatement of law. Because the jury was

given one incorrect definition of an essential element of

the offense charged, the jury may have returned its verdict

based upon that incorrect definition. This Court should

determine the correct definition of incendiary de-

vice by limiting it to those acts intended by Congress to

be reguiated, and for that purpose a writ should be issued.

For these reasons a Writ of Certiorari should issue to

review the judgment and opinion of the United States Court

of Appeals for the Seventh Circuit.

Respectfully submitted,

Ronmur J. Wenen,

221 N. LaSalle Street,

Chicago, Illinois 60601,

(312) 782-1985,

Counsel for Petitioners,

Ana Erika Agrillo-Ladlad and

May, 1982

APPENDICES

APPENDIX A

Anited States Court of Appeals

Nos. 80-2822 & 80-2826

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ANA ERIKA AGRILLO-LADLAD,

and LAWRENCE J. FLEMING,

Defendants-A ppellants.

Argued September 14, 1981 — Decided April 14, 1982

Before Baven, Circuit Judge, Farmcump, Senior Circuit

Judge, Baxsn, District Judge.

Baxer, District Judge. The defendants, Ana Erika

Agrillo-Ladlad and Lawrence J. Fleming, were convicted

under 18 U.S.C. § 371 of conspiracy to damage and destroy,

and attempting to damage and destroy, by means of ap

* Honorable Harold A. Baker, District Judge for the

Central District of Illinois, sitting by designation.

explosive, property used in an activity affecting interstate

commerce. They were also convicted of the substantive

offense under 18 U.S.C. § 844(i). A confederate, Jeffrey

D. Bennett, was also indicted but plead guilty and became

a witness for the government.

On appeal, Agrillo-Ladlad and Fleming contend that

18 U.S.C. § 844(i) is not applicable to the facts of this case

and that the defendants were improperly convicted under

that statute. We affirm.

The defendant, Ana Erika Agrillo-Ladlad, owned United

Latino’s Press, (United Latino’s) a commercial printing

company located on the east half of the sixth floor of 213

West Institute Place in Chicago, IIlinois. Agrillo-Ladlad

employed the defendants Fleming and Bennett. Fleming

was the shop manager and Bennett ran the folding machine

spired together to destroy the business and to collect the

proceeds of the fire and casualty insurance covering the

business.

On March 22, 1979, at about 1:30 A.M., Bennett en-

tered the basement at 213 West Institute Place and dis-

connected United Latino’s fire alarm and sprinkler sys-

tem. Bennett then went to the sixth floor and began to lay

out layers of newspapers in rows, or trailers,’ connecting

the major pieces of shop equipment to a central ignition

point. After he had laid out the rows of newspapers,

1. According to an expert witness for the government, a

trailer is a combustible material that is used to spread and

direct fire in a particular pattern Here the naphtha soaked

rows of newspapers constituted trailers.

Bennett poured naphtha on them using a bucket and the

contents of a fifty-five gallon drum of naphtha which had

been purchased and delivered to United Latino’s the day

before. The process of laying out the newspapers and

saturating them with naphtha took about 2½ hours. During

the whole period of time the windows in the United Latino’s

premises were closed and the ambient temperature was

between 55 degrees and 60 degrees Fahrenheit.

Bennett then began to assemble an electronic ignition

unit which, connected with a timing device, would pass a

flame through the newspapers and ignite the naphtha.

He had to strip the insulation from some wires. Since he

did not have wire strippers, Bennett struck a match to

burn off the insulation, whereupon the naphtha that

Bennett had spilled on his clothing caught fire and Ben-

nett ran from the pressroom and extinguished the flames

Inspector Thomas Kerner of the Chicago Bomb and

Arson Squad testified for the government. From his ob-

servation of the United Latino’s premises, Kerner be-

lieved that an accelerant had been spread about the

premises and that vapors from the accelerant had been

contained in the lower portions of the room either by the

heat or humidity of the room, and that the vapors had

been simultaneously ignited in an ‘‘explosive-type fire of

rapid oxidation.’”

Thomas Cousins, an enforcement officer of the Bureau

of Alcohol, Tobacco and Firearms, Washington, D.C., testi-

fied as an expert witness for the government. Cousins

testified that both naphtha and gasoline are potential ex-

plosives. It was Cousins’ opinion that an uncontained

explosion had occurred at United Latino’s and that the

uncontained explosion had been a simultaneous ignition of

a vapor envelope which formed above the naphtha soaked

trailers. Cousins was of the further opinion either that a

contained explosion caused by ignition of the accelerant

vapor build-up in the office area took place and blew out

the windows, or that the explosion was caused by the

natural phenomenon of heat build-up in an uncontained

flash fire causing a ‘‘flash over’’ which blew out the win-

dows and vented the fire. Under either possibility there

was an explosion.

Cousins explained how over fifty gallons of naphtha

spread over rows of newspapers to all major equipment

at United Latino’s and into the office area would explode

2. Rapid oxidation, according to Kerner, means that the

accelerant ignites almost simultaneously. (Record, vol. 2, at

108). When a liquid accelerant ignites,

Kerner said, it explodes. (Record, vol. 2, at 111-12).

when set on fire. At night the temperature in United Lati-

no’s was between 55 degrees and 60 degrees Fahrenheit.

Cousins explained that just above the flash point“ of

naphtha, which is 50 degrees Fahrenheit, naphtha generates

sufficient vapors which, when mixed with a certain per-

centage of air, form a potentially explosive mixture. ‘‘The

vapors produced,’’ Cousins explained, ‘‘are heavier than

air and when the vapors are produced, they have a tendency

to stay within the immediate area and. . . build up and

build up, until . . the proper amount of fuel to air is

attained.’’ (Record, vol. 7, at 981-82). It was Cousins’ opin-

ion that more than fifty gallons of naphtha would give off

sufficient vapors to form an explosive potential, when

spread along paper trailers to equipment and into the of-

fice area of United Latino’s in a temperature of above 50

degrees Fahrenheit and when combined with the air around

it. Those vapors, when ignited by a flaming newspaper,

could have exploded. After examining photographs of the

damaged United Latino’s, Cousins described the photo-

graphs as depicting the aftermath of an ‘‘explosive phen-

omenon.’’ (Record, vol. 7, at 985).

II.

The question that confronts us is whether naphtha soaked

newspapers strategically spread across the floor of a

building for the purpose of directing a fire and ignited by

a burning newspaper is an explosive“ or ‘‘incendiary

device as defined in 18 U.S.C. § 844(j) and 18 U.S.C.

3. According to Cousins, the flash point is the lowest

temperature at which a flammable liquid forms vapors

which can ignite. The flash point occurs just below the

— (Record, vol. 7,

§ 232(5) for the purpose of prosecution under 18 U.S.C.

§ 844(i).

The government has two theories: first, that the defend-

ants used a chemical compound, mechanical mixture or

device that contains any oxidizing and combustible units,

or other ingredients, in such proportions, quantities, . . .

that ignition by fire . . of the compound, mixture or device

or any part thereof may cause an explosion,’’ 18 U.S.C.

§ 844(j); second, that naphtha soaked newspapers are a

device similar to an ‘‘incendiary bomb.“ 18 U.S.C. § 232

(5)(C). Agrillo-Ladlad and Fleming argue that Congress

did not intend the term ‘‘explosive’’ as used in 18 U.S.C.

§ 844(i) to include devices such as naphtha soaked trailers.

III.

The plain meaning of the language of Title XI of the

Organized Crime Control Act of 1970, the legislative his-

tory of the Act, the testimony at trial of Thomas Cousins,

and the case law all support the government’s position that

naphtha soaked newspapers constitute an explosive under

the terms of the Act. Pub. L. No. 91-452, 84 Stat. 922

(1970). The device used by defendants contained an oxi-

dizing’’ unit, the air in United Latino’s. The device con-

tained a ‘‘combustible’’ unit, the naphtha vapors, tri ers

of newspapers, and a rolled newspaper. The quantities

of the oxidizing unit and combustible unit caused an ‘‘ex-

plosion when Bennett ignited the device by fire.“ The

defendants argue, however, that the spreading of naphtha

on the trailers was not a proportioning, mixing or packing

as those terms are commonly used.

In determining whether Congress intended to exclude

naphtha soaked trailers from the term ‘‘explosives,’’ the

language used in Title XI of the Organized Crime Control

Act of 1970 must be studied. 2A J. Sutherland, Statutes

and Statutory Construction § 45.05, at 16 (4th ed. 1973).

Title XI provides two independent definitions of the term

‘*explosives.’’

Section 844, subsections (d) through (i) of Title XI

created new federal criminal offenses for maliciously using

or attempting to use or threatening to use explosives

ageinst proscribed targets, including commercial proper-

ties. Section 844(j) defines the term explosive for pur-

poses of section 844(i) and other sections dealing with the

malicious use of explosives:

For the purposes of subsections (d), (e), (f), (% ,

(h), and (i) of this section, the term —

means gunpowders, powders used for blasting, all

forms of high explosives, blasting materials, fuses

(other than electric circuit breakers), detonaters, and

other detonating agents, smokeless powders, other ex-

plosive 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, mix-

ture, or device or any part thereof may cause an

explosion.

18 U.S.C. § 844()).

Section 232(5), which section 844(j) incorporates by

reference further defines the tem explosive or incendiary

device’’ as follows:

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 includ-

ing a flammable liquid or compound, and a wick com-

posed 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. § 232(5).

Section 841(d) of the Act gives a much narrower defi-

nition of the term ‘‘explosives’’ for the purpose of regu-

lating the traffic of explosives.‘

4. 18 U.S.C. § 841(d) provides:

Except for the purposes of subsections (d), (e), (f),

(g), ch), (i), and (i) of § 844 of this title, explosives“

means any chemical compound mixture, or device, the

primary or common purpose of which is to function

by explosion; the term includes, but is not limited to,

dynamite and other high explosives, black powder,

pellet powder, initiating explosives, detonaters, safety

fuses, squibs, detonating cord, igniter cord, and igni-

ters. The Secretary shall publish and revise at least

annually in the Federal Register a list of these and

any additional explosives which he determines to be

within the coverage of this chapter. For the purposes

of subsections (d), (e), (f), (g), (h), amd (i) of § 844

of this title, the term ‘‘explosive” is defined in sub-

section (j) of such § 844.

Ammonium nitrate and gasoline in a separate state are

not regulated explosives since their common purpose is

not exploding. Hearings on H.R. 16699, H.R. 17154, H.R.

18573 Before Subcomm. No. 5 of the Comm. on the Ju-

diciary, House of Rep., 91st Cong., 2d Sess. at 157 (1970),

(App. to letter from Hollis M. Dole, Ass’t See. of the Int.) ;

accord H.R. Rep. No. 91-1549, 91st Cong., 2d Sess. at 70, re-

printed in [1970] U.S. Code Cong. & Ad. News 4007, 4041.

When the language of a statute is unambiguous, judi-

cial inquiry ordinarily is at an end. Consumer Product

Safety Comm n v. GTE Sylvania, 447 U.S. 102, 108 (1980).

Despite the seeming clarity of section 844(j), the legisla-

tive history of the Organized Crime Control Act should

be examined to determine whether an extension of federal

involvement is warranted. See United States v. Enmons,

410 U.S. 396, 411 (1973). The hearings held by Subcommit-

tee No. 5 of the House Committee on the Judiciary and the

report of the House of Representatives supports the gov-

ernment’s position that, when used with malicious intent,

petroleum distillates mixed with air at normal ambient

temperatures have an explosive potential and that the

naphtha impregnated device used in this case falls within

the definition of explosives.

Congress provided two separate definitions for the term

explosive “for the purpose of including incendiary devices

within the coverage of section 844(d) through (i), and to

make the exceptions applicable to the regulatory provi-

sions of this chapter inapplicable to these sections.’’ H.R.

Rep. No. 91-1549, 91st Cong. 2d Sess. at 70, reprinted in

[1970] U.S. Code Cong. & Ad. News 4007, 4047. During

the hearings, members of Congress repeatedly expressed

concern with respect to the difficulty in controlling the

malicious use of common materials such as gasoline, other

flammable liquids, and ammonium nitrate without over-

burdening sportsmen, farmers, and people engaged in

legitimate manufacture, transportation, distribution and

use of such materials. Two bills were considered. One,

Congressman Celler’s bill, H.R. 17154, had a broad defini-

tion of explosive. The other, an administration bill, H.R.

18573, had a narrower definition of explosive. See, e. g.,

Hearings on H.R. 17154, H.R. 16699, H.R. 18573 Before

A10

SubComm. No. 5 of the Comm. on the Judiciary, House of

Nep., 91st Cong. 2d Sess. at 64, 106, 133 (1970).

5. Hearings before Subcomm. No. 5 of the Comm. on the

Judiciary, House of Rep. at 61 (statement of Ass’t Attor-

ney General Will R. Wilson):

Un the composition of some of these things gaso-

line is used, in a Molotov cocktail, and there is another

type of useable device where they take an open con-

tainer of gasoline and put it on a cook stove with the

pilot light. It will furnish enough heat to evaporate

the gasoline and if the room is closed it will finally

develop a combustible mixture in the atmosphere and

the pilot light will ignite it and then the whole room

will explode, so you can leave an open container of

gasoline on a cook stove and make a bomb out of it

that way.

Id. at 64; see also id. at 106 (statement of David Steinberg,

Ex. Dir., Nat 1 Council for a Responsible Firearms Policy,

Inc.).

Statement of Hollis M. Dole, Ass 't Sec. of the Int., com-

paring H.R. 17154 and H.R. 18573 with regard to the defini-

tion of explosives:

H.R. 17154 includes ‘‘any chemical compound... .

that contains . ingredients in such proportions,

quantities or packing that ignition by fire. . . or by

detonation .... may cause an explosion.“ This would

include any highly flammable substance such as gaso-

line, cleaning fluids and many other commercial sol-

vents. It also includes ammonium nitrate which is a

widely-used commercial fertilizer.

H.R. 18573 does not cover ammonium nitrate or

gasoline in a separate state since the common purpose

of these two substances by themselves is not to func-

tion by explosion. When ammonium nitrate and fuel

oil are mixed together, however, they become a very

common explosive known to industry as a blasting

agent,” and are covered by H.R. 18573.

(Footnote continued on following page)

Ali

The bill which emerged from the committee spoke to

these concerns. The bill adopted the language of the ad-

ministration bill in its definition of “explosives’’ for the

regulatory provisions and added certain exclusions. For

the provisions relating to the malicious use of explosives,

the bill adopted the broad definition of the term ‘‘explo-

sives’’ contained in the Celler bill.

In the hearings Congressmen expressed special concern

about the damage to federally owned buildings caused by

arson. In testimony explaining the administration bill,

Assistant Attorney General Will R. Wilson noted that

federal jurisdiction had already entered into the area of

arson: ‘‘Existing law furnishes a basis for Federal in-

vestigative and prosecutive action in certain cases of de-

struction or threats of destruction by arson .... [hJow-

ever, it is inadequate in many important ways.“ Id. at 35;