Petition — AVERY v. UNITED STATES (No. 83-1419)

ice - Supreme Court, U.S.

FILED

83 - FEB 24 1984

5 i 1419

P ALEXANDER L. STEVAS

= CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

OZZIE LEE AVERY, JR. - - - - Petitioner

versus

UNITED STATES OF AMERICA - -_ Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AND APPENDIX

FRANK E. HADDAD, JR.

529 Kentucky Home Life Building

Louisville, Kentucky 40202

(502) 583-4881

ROBERT D. SIMMONS

410 E. 10th Street

Bowling Green, Kentucky 42101

(502) 781-4894

Counsel for Petitioner

WESTERFIELO-BONTE CO., 619 W. KENTUCKY-?.0. BOX 3251, LOVISVILLE, KY.

QUESTION PRESENTED

1. Whether common arson materials composed of milk

cartons of gasbline constitute “explosives” within the mean-

ing and legislative intent of Title 18 U.S.C. §844(i).

PAGE

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a soe iced cacsvecesvesecssonwens iii

ee ola l cs cep dtiionedebsecpvacees 1

ee Sinucos 5's Spwibhes ties dccsvvine de

Constitutional and Statutory Provisions ........... 2-3

Statement of the Case .................. cece eeees 3- 5

Reason for Granting the Writ ..................... 5-12

UC Gb btige.cGhkesee staececsecssvavencns 13

aria guc ak dge <p bdge savevseuss chuck 15-29

Appendix A (Opinion of the Sixth Circuit Court of

ED “ans bawnwsibsevousdumesnee 15-27

Appendix B (Order Denying Petition for Rehearing

DT iad iuhi cn cab ide tindechcesws aud se ne 28

Appendix C (Order Granting Stay of Mandate

Pending Filing of Writ of Certiorari) ........ 29

TABLE OF AUTHORITIES

PAGE

Constitutional and Statutory Provisions:

Title 18 U.S.C. §844(i), (j)....1, 2, 2-3, 4, 5, 6, 7, 7-8, 9, 10

Cases:

United States v. Gelb, 700 F. 2d 875 (2nd Cir.

ED ii Seach n sea ehd KUaChs hadoae ae owe ein ue 10, 11

United States v. Hewitt, 663 F. 2d 1381 (11th Cir.

PILES re abahen Sans Cudv ohne thane baceeenese 8,9

United States v. Katsougrakis, 715 F. 2d 769 (2nd

PEE. SaWG gs kk éaOnbdebewe adeaceeonce 8,10

United States v. Lorence, 706 F. 2d 512 (5th Cir.

thas Go dik ooh cas Me yolk Rsa Meaney one Wide 7

United States v. Poulos, 667 F. 2d 939 (10th Cir.

PTE LLNG ¢ebudie ek es (Gap eebeusee Leieroe cies 8,9

Miscellaneous:

Explosives Control: Hearings on H.R. 17154, H.R.

16699, H.R. 18573, 91st Cong. 2d Sess. 33 (1970). 11

SUPREME COURT OF THE UNITED STATES

October Term, 1983

No.

Ozzie LEE AveRY, JR. - - - - ~~ Petitioner

v.

UnitTeD STaTEs OF AMERICA - - Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AND APPENDIX

The Petitioner, Ozzie Lee Avery, Jr., respectfully

prays that a writ of certiorari be issued to review the

Opinion of the United States Court of Appeals for the

Sixth Circuit entered in this proceeding on Septem-

ber 29, 1983, affirming the Petitioner’s Judgment of

conviction upon jury verdict and sentence for violation

of Title 18, U.S.C. §844(i).

OPINION BELOW

The Opinion of the Court of Appeals, reported at

717 F. 2d 1020 (6th Cir. 1983), affirming the Petition-

er’s Judgment of conviction upon jury verdict was

entered and filed on September 29, 1983, and appears

in the Appendix hereto.

JURISDICTION

The Opinion of the United States Court of Appeals

for the Sixth Circuit, affirming the Petitioner’s jury

conviction and sentence was entered and filed on Sep-

tember 29, 1983. A timely Petition for Rehearing En

Bane was timely filed and subsequently denied on the

23rd day of January, 1983, and this Petition for Certio-

rari was filed within sixty days of that date. This

Court’s jurisdiction is invoked under the provisions of

Title 28, U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Statutory Provisions:

Title 18, U.S.C. §844(i) reads in pertinent part as

follows:

(i) Whoever maliciously damages or destroys,

or attempts to damage or destroy, by means of an

explosive, any building, vehicle, or other real or

personal property used in interstate or foreign

commerce or in any activity affecting interstate or

foreign commerce shall be imprisoned for not more

than ten years or fined not more than $10,000, or

both;

Title 18, U.S.C. §844(j) reads in pertinent part as

follows:

(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 ma-

terials, fuzes (other than electric circuit breakers),

detonators, and other detonating agents, smoke-

3

less powders, other explosive or incendiary devices

within the meaning of paragraph (5) of section

232 of this title [18 USCS §232(5) ], and any chem-

ical 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.

STATEMENT OF THE CASE

The Petitioner was indicted and charged with know-

ingly and maliciously attempting to damage or destroy

a building in interstate commerce ‘‘by means of an ex-

plosive’’ under 18 U.S.C. §844(i). The one-count In-

dictment charged as follows:

On or about the 16th day of February, 1982,

in the Western District of Kentucky, Ozzie Lee

Avery, Jr. did knowingly and maliciously attempt

to damage or destroy, by means of an explosive,

to wit: containers of gasoline and propane, boxes

and paper materials, a building known as the

Bowning, Crosby & Wilkins Medical Office Build-

ing, Bowling Green, Kentucky, and personal prop-

erty contained therein, which was used in inter-

state or foreign commerce or in an activity affect-

ing interstate or foreign commerce including

treatment of out-of-state patients and interstate

business with out-of-state suppliers.

In violation of Section 844(i), Title 18, United

States Code. [Indictment, May 4, 1982.]

4

The materials used in the alleged offense were classic

arson materials: gasoline, propane gas, a cardboard

box, newpapers, and waxed paper. [Transcript of Evi-

dence, hereinafter designated T.E. 134-140, 655-656,

277.] Deputy Police Chief Hills testified that the

offense appeared to be ‘‘an attempted arson.”’ [T.E.

140.] I'rom the day after he was arrested and up to

to the present time, the Petitioner has, in fact, been

under pending state indictment for attempted arson.

[T.E. 388-389; Transcript of Sentencing, p. 9.]

Nevertheless, the charge under 18 U.S.C. §844(i)

was tried before a jury in the Western District of Ken-

tucky at Bowling Green on August 11, 12, 13, 17 and 18,

1982. The jury returned a verdict of guilty.

The Petitioner was sentenced on September 17,

1982, to serve five years imprisonment. The Petitioner

appealed his conviction to the United States Court of

Appeals for the Sixth Circuit. The Petitioner raised,

among other issues, that his conviction was improper

under Title 18, U.S.C. §844(i) since the materials used

in the commission of the offense were classic arson ma-

terials and, hence, did not come under the definition

for ‘‘explosives’’ under 18 U.S.C. §844. The United

States Court of Appeals for the Sixth Circuit affirmed

the Petitioner’s conviction and held that the materials

used by the Petitioner were properly categorized as an

‘tincendiary bomb’’ and thus, an ‘‘explosive’’ under

18 U.S.C. §844. [Appendix A, p. 20].

Petitioner has filed this Writ of Certiorari in order

to demonstrate that there is a split in the circuits as

5

to whether common arson materials constitute ‘‘ex-

plosives’’ under 18 U.S.C. §844 and to establish that

the Sixth Circuit was incorrect in affirming the Peti-

tioner’s conviction.

REASON FOR GRANTING THE WRIT

The Decision Below Conflicts With the Holdings of Other

Courts of Appeals as to Whether or Not Common

Arson Materials Constitute “Explosives” Within the

Meaning of Title 18, U.S.C. §841.

The decision of the Court of Appeals for the Sixth

Circuit, holding that the common law arson materials

used in this case constituted an ‘‘explosive’’ as defined

by §844(j) of Title 18, is in conflict with the holdings

of other federal courts of appeals.

The Petitioner was convicted of a violation of

Title 18, U.S.C. §844(i)—the attempted destruction, by

means of an explosive, of a building affecting inter-

state commerce.

On Appeal, Petitioner argued, among other things,

that the materials used in the alleged attempted de-

struction were no more than common materials of

arson which do not fall within the statutory definition

of ‘‘explosive’’. The Sixth Circuit affirmed the Peti-

tioner’s conviction by deciding that the materials used

by the Petitioner were properly categorized as an

‘incendiary bomb’’, and thus, an ‘‘explosive’’ under

18 U.S.C. §844. [Appendix A, p. 20]. The Sixth

Circuit decision was premised upon a misapprehension

of the law, and is contrary to the most recent decisions

6

of the United States Courts of Appeals, for the fol-

lowing reasons.

The evidence introduced at the Petitioner’s trial

included (1) four canisters of propane, (2) two gallon

jugs and fifteen milk cartons containing gasoline,

(3) three Wall Street Journals with address labels

listing the Petitioner’s name and address, and (4)

two other newspapers and a roll of wax paper. [Ap-

pendix A, p. 16].

Title 18, U.S.C. §844(i) requires that the destruc-

tion or attempted destruction of a building used in

interstate commerce be conducted *“*. . . by means of

an explosive’. 18 U.S.C. §844(j) defines the term

‘explosive’. The definition describes three (3) dis-

tinct types of ‘‘explosives’’. Petitioner submits that

the Sixth Circuit failed to recognize this distinction,

and, in so doing, relied upon certain United States

Courts of Appeals’ decisions in error, because those

opinions did not address the issue before the Court, and

because those opinions did not address the particular

part of the definition section before the Court.

18 U.S.C. §844(j) states that ‘‘explosives’’ means:

(1) gunpowders, powders used for blasting, all

forms of high explosives, blasting materials, fuses

(other than electric circuit breakers, detonators, and

(2) other detonating agents, smokeless powders,

other explosive or incendiary devices within the mean-

ing of paragraph (5) §232 of this Title, and

(3) any chemical compounds, mechanical mixture,

or device that contains any oxidizing and combustible

7

units, or other ingredients, in such proportions, quan-

tities, or packing that ignition by fire, friction, by con-

cussion, by percussion, or by detonation of the com-

pound, mixture or device or any part thereof may cause

an explosion.

The United States Courts of Appeals have recog-

nized that the definition is so divided into three (3)

parts. See, United States v. Lorence, 706 F. 2d 512

(5th Cir. 1983).

Section 232(5), which §844(j) incorporates by re-

ference, further defines the term ‘‘explosive or in-

cendiary 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, mis-

sile, or similar device, and (C) any incendiary

bomb or grenade, fire bomb, or similar device, in-

cluding any device which (i) consists of or includes

a breakable container including a flammable liquid

or compound, and a wick composed of any ma-

terial which, when ignited, is capable of igniting

such flammable liquid or compound, and (ii) can

be carried or thrown by one individual acting alone.

The Sixth Circuit acknowledged that the Circuits are

split over whether a mixture of oxygen and a com-

bustible liquid such as gasoline constitutes an ‘‘explo-

sive’ as defined by 18 U.S.C. §844(j).

The Ninth Circuit concluded that such air-fuel

mixtures do not fall within the statutory defini-

tion of ‘‘explosive’’ after finding ‘‘no indication

that [section 844(i)] was meant to overlap state

8

arson law relating to buildings in interstate com-

merce.’’ United States v. Gere, 662 F. 2d 1291,

1296 (9th Cir. 1981) (fire ignited by ‘‘trailers’’

of photocopier fluid and fluid-soaked materials) ;

Accord United States v. Cutler, 676 F. 2d 1245,

1248 (9th Cir. 1982) (twenty gallons of gasoline

spread throughout warehouse). The Seventh,

Tenth and Eleventh Circuits, however, took the

position that such air-fuel mixtures were ‘‘explo-

sives’’ under section 844(j). United States v.

Agrillo-Ladlad, 675 F. 2d 905, 907-12 (7th Cir.),

cert. denied, U. S. ——, 103 S. Ct. 66 (1982)

(naptha-soaked newspapers spread across floor) ;

United States v. Poulos, 667 F. 2d 939, 941-42

(10th Cir. 1982) (gasoline poured around floor of

building) ; United States v. Hewitt, 663 F. 2d 1381,

1389 (11th Cir. 1981) (ten gallons of gasoline

poured down roof vent into building). [Appen-

dix A, p. 19].

Petitioner submits that the Sixth Circuit’s reliance on

United States v. Hewitt, 663 F. 2d 1381 (11th Cir.

1981) and United States v. Poulos, 667 F. 2d 939 (10th

Cir. 1982), were not supportive of the Court’s position

that air-fuel mixtures are explosives under the federal

statute. Further, the most recent cases from the

United States Court of Appeals for the Sixth Circuit,

decided in February and August of 1983, hold that

such air-fuel mixtures were never intended by Con-

gress to be included in the definition of an ‘‘explosive’’.

See, United States v. Katsougrakis, 715 F. 2d 769 (2nd

Cir. 1983).

9

In United States v. Poulos, supra, the Defendant

sought to reverse his 18 U.S.C. §844(i) conviction on

the ground that a portion of §844(j), defining ‘‘explo-

sive’’, is unconstitutionally vague, and therefore void.

667 F’. 2d at 941. The Defendant challenged the third

part of the definition, which begins ‘‘any chemical com-

pounds, mechanical mixture, or device that contains

any oxidizing and combustible units, . . .’. See,

supra, p. 6. This part of the definition under the

statute is not at issue in this case. It is the Petitioner’s

position that part two of §844(j), which states ‘‘other

detonating agents, smokeless powders, other explosive

or incendiary devices within the meaning of para-

graph (5) of §232 of this title, . . .’’ should not have

been applied to the common arson materials introduced

as evidence during the trial.

Similarly, United States v. Hew.tt, supra, can be

distinguished, and should not have been relied upon by

the Court to affirm the Petitioner’s conviction. In

Hewitt, the defendant asserted that the trial court com-

mitted reversible error by refusing to give a jury in-

struction which stated that part of the definition of

‘incendiary device’’ contained in §232(5)(C) of Title

18 is that the device be capable of being carried or

thrown by one individual acting alone. 633 F. 2d at

1389. The Court in Hewitt specifically stated that it

was not addressing the issue of whether gasoline can

be used as an ‘‘explosive’’ within the meaning of

§844(j). 663 F. 2d at 1390, f.n, 16,

10

Clearly then, the Sixth Circuit overestimated the

number of cases and Circuits which do not agree with

the Petitioner’s argument that the materials described

at the trial in this case were not intended by Con-

gress to be included in the definition of ‘‘explosive”’

in $844(i).

The United States Court of Appeals for the Second

Cireuit, in United States vy. Katsougrakis, supra, re-

cently held that a defendant’s conviction under §844(i)

should be reversed because the common arson material

found in that case was not an ‘‘explosive’’ within the

meaning of §844(j) because of the legislative history of

the statute. This history, the court stated:

[S]trongly supports the view that the act was

envisaged as anti-bombing, not anti-arson, legisla-

tion. We find nothing in the language or legis-

lative history of the Act to challenge this conclu-

sion. Moreover, responsibility for the investiga-

tion and prosecution of crimes involving common

law arson has traditionally been left to the states,

and we are reminded that: ‘[U]nless Congress

conveys its purpose clearly, it will not be deemed

to have significantly changed the federal-state bal-

ance.” United States v. Bass, 404 U. S. 336, 349 |

(1971). United States v. Katsougrakis, Id. at 773.

The court in Katsougrakis found that its earlier deci-

sion in United States v. Gelb, 700 F. 2d 875 (2nd Cir.

1983), was dispositive of the issue. In Gelb, the facts

presented at trial revealed a classic case of arson, but

failed to disclose any evidence of an explosion or bomb-

ing. The issue, the court stated, was whether Con-

il

gress intended through the Explosive Control Act to

extend federal jurisdiction to crimes involving com-

mon law arson, and whether uncontained gasoline is

properly included within the statutory definition of

‘“‘explosive.’’ 700 F. 2d at 878. The court determined

that the Act appeared to have been adopted specifically

in response “*. . . to an emerging social concern, in

this case the tragedy of loss of lives and damage to

property caused by the bombings.’’ Id. See, e.g., Ex-

plosives Control: Hearings on H.R. 17154, H.R. 16699,

H.R. 18573 before Subcommittee No. 5 of the House

Committee on the Judiciary (Hearings), 91st Cong.

2d Sess. 33 (1970) (remarks of Hollis Dole, Assistant

Secretary of Interior), 282 (remarks of Rep. Botzman),

296 (remarks of Rep. Wilie).

The court in Gelb concluded by noting that Con-

gress has recently enacted legislation amending the

Explosive Control Act so that federal authorities will

henceforth share responsibility with state officials to

investigate and prosecute common arson crimes. See

Anti-Arson Act of 1982, Pub. L. No. 97-298, 96 Stat.

1319 (1982). It is important for this Court to note

that Petitioner was indicted and convicted upon a vio-

lation of the statute before it was amended to include

the common arson materials introduced at the Peti-

tioner’s trial. Therefore, the Sixth Circuit should not

have imposed the Act as amended upon the Petitioner,

particularly when the Act before it was amended so

clearly excluded common arson crimes from its scope.

The court in Gelb rejected the minority position relied

12

upon by the panel of the Sixth Circuit and held that

common arson crimes were not intended to have been

included within the coverage of the Explosive Con-

trol Act:

Congress could have accomplished this objective

twelve years earlier when enacting the Explosive

Control Act, but chose instead to focus on the more

imminent problem of terrorist bombing. We defer

to the lawmaking wisdom of the national legisla-

ture. 700 F. 2d at 879.

Petitioner respectfully submits that the Sixth Cir-

cuit erred in affirming the Petitioner’s conviction,

especially in the light of the fact that only one case

cited by the Court supported the position that Peti-

tion’s actions came within the federal statute. In light

of this, and the fact that the Sixth Circuit in affirming

the Petitioner’s conviction, placed itself in opposition

to the most recent cases proffered by Petitioner, the

Petitioner respectfully requests that this Court grant

certiorari to review the decision of the United States

Court of Appeals for the Sixth Circuit.

13

CONCLUSION

For all of the reasons stated above, a Writ of

Certiorari should issue to review the opinion of the

United States Court of Appeals for the Sixth Circuit

affirming the Petitioner’s conviction.

Respectfully submitted,

Frank E. Happap, Jr.

529 Kentucky Home Life Building

Louisville, Kentucky 40202

(502) 583-4881

Rosert D. SIMMONS

410 E. 10th Street

Bowling Green, Kentucky 42101

(502) 781-4894

Counsel for Petitioner

APPENDIX

15

APPENDIX A

No. 82-5589

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Usrrep States or America, - - Plaintiff-Appellee,

v.

Ozzie Lee Avery, JR.,

Defendant-Appellant.,

On Appeal From the United States District Court

for the Western District of Kentucky

OPINION—Decided and Filed September 29, 1983

Before: Contre, Circuit Judge; and Paris and CEts-

BREZZE, Senior Circuit Judges.

Contre, J. Ozzie Lee Avery appeals his jury conviction

on one count of attempted destruction of a building used in

interstate commerce by means of an explosive. 18 U.S.C.

§ 884(i). In this appeal we are required, among other

things, to determine whether the materials used in the

attempted destruction fall within the statutory definition

of “explosive.” 18 U.S.C. ¢ 844(j). After careful consider-

ation, we affirm the defendant’s conviction.

L

At 11:06 p.m. on the evening of February 16, 1982, the

Bowling Green, Kentucky police station received a burglar

alarm signal from a local medical office building. The

officer who was dispatched to the scene testified that he

turned his ear spotlight on and “threw [it] into the general

16

area of the back door to make sure that the back door looked

intact.” At this point, the officer noticed the defendant

“erouched down” near a small storage door at the rear of

the building. The defendant then ran to his car, and sped

from the parking lot. After a brief pursuit, the defendant

stopped his car and the officer arrested him. The car was

registered in the defendant’s name, and had sfver duct tape

covering all four guidelights on the sides of the car and the

lights normally illuminating the license plates. The license

plate itself was covered with oil and dirt.

Following defendant’s arrest, the officer placed him in

the patrol car and advised him of his Miranda rights. The

two then returned to the medical building. A subsequent

inspection of the building revealed that the rear storage

door had been pried open. Inside a crawl space underneath

the building, police found a substantial amount of flammable

materials which included (1) four canisters of propane,

(2) two gallon jugs and fifteen milk cartons containing

gasoline, (3) three Wall Street Journals with address

labels listing the defendant’s name and address, and (4)

two other newspapers and a roll of wax paper.

Thereafter, defendant was taken to the Bowling Green

police station for booking. Detective David Payne gave

defendant a standard Waiver of Rights Form which the

defendant read and refused to sign. Payne again advised

defendant of his Miranda rights and the defendant indi-

cated that “he didn’t want to say anything about the case”,

and that he wanted to talk to his lawyer. The defendant

contacted his attorney on the telephone, and the attorney

told Payne that his client did not wish to make a statement

at this time. After this conversation, Payne completed the

defendant’s identification form. The record indicates that

Payne asked the defendant several questions on such topics

as the defendant’s address and date of birth. Payne also

used the defendant’s driver’s license as a source of infor-

17

mation. The defendant was also fingerprinted and photo-

graphed.

After the booking process was completed, the officer

who was with the defendant and Detective Payne took the

paperwork into another room in order to have it typed.

As Payne and the defendait sat’in the room alone, de-

fendant suddenly stated “[d]o you thik if I make restitu-

tion for the damages that have been done, would the charges

be dropped?” This statement was admitted at trial after

the district court determined that the defendant had volun-

tarily waived his privilege against self-incrimination. De-

fendant was later convicted on one count of attempted

destruction of a building used in interstate commerce by

means of an explosive, 18 U.S.C. § 844(i), and now brings

this appeal.

Il.

When this incident occurred in February 1982, 18 U.S.C.

§ 844(i) read in pertinent part:

(i) Whoever maliciously damages or destroys, or

attempts to damage or destroy, by means of an explo-

sive, any building, vehicle, or other real or personal

property used in interstate or foreign commerce or in

any activity affecting interstate or foreign commerce

shall be imprisoned for not more than ten years or

fined not more than $10,000, or both; . . .

We are aware that Congress has since amended section

844(i) to include destruction or attempted destruction “by

means of fire or an explosive,....” See Anti-Arson Act of

1982, Pub. L. No. 97-298, § 2(c), 96 Stat. 1319 (1982) (codi-

fied as amended at 18 U.S.C. 4 844(i) (West Supp. 1983)).

Nevertheless, since this amendment was not approved until

October 12, 1982, we must interpret the statute as it existed

on the date of the alleged offense.

18

Defendant contends that the materials used in the at-

tempted destruciion are no more than “very common ma-

terials of arson” which do not fall within the statutory defi-

nition of “explosive.” In this context, defendant maintains

that section 844(i) was never meant to be a federal arson

statute but was intended to protect buildings against “the

specific evil of bombing.”

18 U.S.C. ¢ 844(j) defines the term “explosive” for pur-

poses of section 844(i) as follows:

For purposes of subsection [] ... (i) of this section,

the term “explosive” means gunpowders, powders used

for blasting, all forms of high explosives, blasting ma-

terials, 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, quan-

tities, or packing that ignition by fire, by friction, by

concussion, by percussion, or by detonation of the com-

pound, mixture, or device or any part thereof may

cause an explosion.

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

ence, further defines the term “explosive or incendiary de-

vice” as follows:

(5) The term “explosive or incendiary device”

means (A) dynamite and all other forms of high ex-

plosives, (B) any explosive bomb, grenade, missile, or

similar device, and (C) any incendiary bomb or gre-

nade, 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 cap-

19

able of igniting such flammable liquid or compound,

and (ii) can be carried or thrown by one individual

acting alone.

We acknowledge that, prior to the 1982 amendments to

section 844(i), the circuits were split over whether a mix-

ture of oxygen and a combustible liquid such as gasoline

constituted an “explosive” as defined by 18 U.S.C. § 844(j).

The Ninth Circuit concluded that such air-fuel mixtures do

not fall within the statutory definition of “explosive” after

finding “no indication that [section 844(i)] was meant to

overlap state arson law relating to buildings in interstate

commerce.” United States v. Gere, 662 F. 2d 1291, 1296

(9th Cir. 1981) (fire ignited by “trailers” of photocopier

fluid and fluid-soaked materials); Accord United States v.

Cutler, 676 F. 2d 1245, 1248 (9th Cir. 1982) (twenty gallons

of gasoline spread throughout warehouse). The Seventh,

Tenth and Eleventh Circuits, however, took the position

that such air-fuel mixtures were “explosives” under section

844(j). United States v. Agrillo-Ladlad, 675 F. 2d 905,

907-12 (7th Cir.), cert. denied, U.S. —_, 103 S. Ct. 66

(1982) (naptha-soaked newspapers spread across floor);

United States v. Poulos, 667 F. 2d 939, 941-42 (10th Cir.

1982) (gasoline poured around floor of building); United

States v. Hewitt, 663 F. 2d 1381, 1389 (11th Cir. 1981) (ten

gallons of gasoline poured down roof vent into building).

In this case, the defendant did not rely solely on con-

tainers of gasoline. Instead, he used a combination of

gasoline and four canisters of propane gas. The explosive

potential of this combination was described by Col. Warren

L. Parker, the government’s expert witness. Parker re-

ferred to the materials assembled in the crawl space as an

“improvised incendiary bomb,” and identified the two po-

tential sources of an explosion to be (1) the propane canis-

ters, and (2) the vapors from the gasoline. He described

the propane as being “a very volatile gas contained under

20

pressure.” Once the gasoline was ignited, Parker testified

that the build-up of heat and intensity would cause the

propane canisters to “rupture and vent adding an explosive

force.” He added that there might also be a second “vapor

type explosion” once the flames reached the propane gas

which had escaped from the canisters. Parker also indi-

cated that the vapors from the gasoline could have spread

throughout the building to form an “explosive gasoline air

vapor mixture.” When commenting on the destructive

capability of these materials, Parker testified:

With the amount of gasoline and propane, there could

have been an explosion that could have completely

destroyed the whole building in the process of starting

the fire.

The explosive potential of these materials is clearly

established in the record. Indeed, after reviewing the plain

wording of sections 844(j) and 232(5), the testimony of

Col. Parker, and the applicable case law, we are convinced

that these materials are properly categorized as an “in-

cendiary bomb” under 18 U.S.C. § 232(5). Accordingly,

we hold that these materials constitute an “explosive” as

defined by section 844(j). Since Congress has amended 18

U.S.C. § 844(i) to include destruction by fire, we should not

have to face this problem again.

Il.

The defendant argues that his “restitution” statement to

detective Payne should have been suppressed because it

was the product of police interrogation which occurred

after he asserted his privilege against self-incrimination.

Defendant further argues that he made no knowing, volun-

tary and intelligent waiver of that right. The government

maintains that no interrogation occurred, and that the

statement was a spontaneous utterance whose admissibility

21

is not affected by Miranda v. Arizona, 384 U. S. 436 (1966).

It is uncontested that the defendant was advised of his

Miranda rights when he was taken into custody and that he

asserted his privilege against self-incrimination. At that

point, detective Payne questioned the defendant on subjects

such as defendant’s date of birth and address in order to

complete the identification form. The issue, therefore, is

whether this questioning constitutes “interrogation” by

police.

The Supreme Court in Rhode Island v. Innis, 446 U. S.

291 (1980) defined “interrogation” as referring “not only to

express questioning, but also to any words or actions on the

part of the haa (other than those normally attendant to

arrest and custody) that the police should know are reason-

ably likely to elicit an incriminating response from the

suspect.” Jd. at 301. Thus, “interrogation, as conceptu-

alized in the Miranda opinion, must reflect a measure of

compulsion above and beyond that inherent in custody

itself.” Id. at 300.

We believe the questioning in this case falls outside the

context of the inherently coercive custodial interrogation

for which the Miranda safeguards were designed, Roberts

v. United States, 445 U. S. 552, 560 (1980), and thus should

not be characterized as “interrogation.” The record . di-

cates that the questions were part of a routine procedure to

secure biographical data to complete the booking process.

These questions did not relate, even tangentially, to crim-

inal activity. Moreover, there is no evidence that the de-

fendant was particularly susceptible to these questions, or

that police somehow used the questions to elicit an incrim-

inating response from the defendant. Under these circum-

stances, we would be creating a rule “broader than that re-

quired to implement the policy of Miranda itself” were we

to find that the police interrogated the defendant in this

case. See Baumann v. United States, 692 F. 2d 565, 577

22

(9th Cir. 1982); United States v. Booth, 669 F. 2d 1231,

1237-39 (9th Cir. 1981); United States ex rel Hines v. La-

valle, 521 F. 2d 1109, 1112-13 (2nd Cir. 1975), cert. denied,

423 U.S. 1090 (1976) ; United States v. Menichino, 497 F. 2d

935, 941 (5th Cir. 1974) ; But see United States v. Downing,

665 F. 2d 404, 406-07 (1st Cir. 1981).1. In reaching this

result, we acknowledge that courts should carefully scruti-

nize the factual setting of each encounter of this type. Even

a Telatively innocuous series of questions may, in light of

the factual circumstances and the susceptibility of a par-

ticular suspect, be reasonably likely to elicit an incrimina-

ting response. See, e.g., United States v. Hinckley, 672 F.

2d 115, 123-26 (D.C. Cir. 1982). Ordinarily, however, the

routine gathering of biographical data for booking pur-

poses should not constitute interrogation under Miranda.

United States v. Booth, 669 F. 2d at 1238.

Since the defendant was not being interrogated at the

time of his “restitution” statement, we hold that the state-

ment was a spontaneous and voluntary utterance which was

1Relying upon the ‘unavoidable coerciveness of police question-

ing after an accused has requested the presence of counsel,’’ the

First Circuit in United States v. Downing, 665 F. 2d 404 (1st Cir.

1981) ‘‘declined the government’s invitation to create a broad

exception to the Fifth Amendment for police questions asked with-

out ‘investigative intent’ or pursuant to ‘required administrative

procedures’ ’’. Id. at 406-07. In reaching this result, the First

Circuit has apparently taken the position that any form of direct

questioning of a suspect in custody constitutes ‘‘interrogation’’

under Miranda. We note, however, that Downing is factually dis-

tinguishable from this case. Rather than asking the defendant

routine questions to gather biological data, the drug enforcement

agents in Downing questioned the defendant about the existence

and location of his airplane, which was apparently being used to

transport illegal narcotics. Thus, the questions in Downing were

much more likely to elicit an incriminating response from the

defendant than the questions in this case.

23

properly admitted at trial.2 The record indicates that

Avery was alert and under no compulsion to speak when he

made this statement to detective Payne. We therefore

adhere to that portion of the Miranda decision which states

that “[a]ny statement given freely and voluntarily without

any compelling influences is, of course, admissible into evi-

dence. Miranda v. Arizona, 384 U. S. at 478; see also

United States v. Anthon, 648 F. 2d 669, 673-74 (10th Cir.

1981) cert. denied, 454 U. S. 1164 (1982); United States v.

Foskey, 636 F. 2d 517, 521-22 (D.C. Cir. 1989).

IV.

The defendant asserts that the government’s attorney

made several improper comments during closing argument

which violated defendant’s right to a fair trial. When

analyzing charges of prosecutorial misconduct, we are

guided by Justice Sutherland’s timeless statement in

Berger v. United States, 295 U. S. 78 (1935) that a United

2Our holding in this case is unaffected by the Supreme Court’s

recent decisions in Oregon v. Bradshaw, __U. S. __, 33 Cr. L. 3211

(June 22, 1983), Edwards v. Arizona, 451 U. S. 477 (1981) and

this circuit’s decision in Clark v. Jago, 676 F. 2d 1099 (6th Cir.

1982). These cases indicate that once an accused has asserted his

right to counsel, further interrogation of the accused must not take

place unless the accused himself initiates further communications,

exchanges or conversations with the police and makes a knowing,

voluntary and intelligent waiver of his right to counsel and his

right to remain silent. Oregon v. Bradshaw, supra, at 3212-13;

Edwards v. Arizona, supra at 484-85 & n.9; Clark v. Jago, supra at

1113. In this case, we determined that Avery did assert his right

to counsel, but that detective Payne’s questions did not constitute

‘‘interrogation’’ under Miranda. Moreover, while we acknowledge

that Avery’s ‘‘restitution’’ statement could be construed as initi-

ating a conversation under Bradshaw, Edwards and Clark, there

is no evidence that police questioned Avery in any manner after

this statement was made.

24

States Attorney “may strike hard blows” in the course of

a prosecution, but “is not at liberty to strike foul ones.”

Id. at 88.

The defendant first contends that the prosecutor urged

and “very likely” caused jurors to conduct an experiment

in the jury room to determine whether the defendant

could have moved the explosive materials into the crawl

space in a three minute period. The record indicates that

it took approximately three minutes for the first officer

to respond to the burglar alarm. In his closing argument,

the prosecutor buttressed his argument that the materials

could have been moved in three minutes by suggesting that

the jurors attempt to hold two of the milk cartons in each

hand. Defense counsel responded that “there is no way in

the world” the defendant could have moved the materials

into the crawl space in three minutes. This prompted the

prosecutor during rebuttal to ask the jury to recreate por-

tions of the defendant’s actions:

I submit to you [to] try this scenario; Hasp on the

door, set all the materials by the door, pry the hasp

off by whatever means, get inside and begin taking

the fuel in, set the box in and maybe it is fifteen feet,

the longest distance we have, maybe this distance,

crawling on hands and knees, two jugs at a time, seven

pounds a piece, set fourteen pounds a piece in each

hand. Mr. Avery looks like he could probably pick

up fourteen pounds, crawling on the floor, hands and

knees, three minutes. I believe it would be easy. I

believe by working continuously it could be done.

We do not believe the prosecutor’s comments deprived

defendant of a fair trial. The record reveals that the de-

fense, through expert testimony, put into issue the question

of how long it would take to place the materials into the

crawl space. Indeed, the defense theory of the case was

25

that the defendant could not possibly have moved and as-

sembled all of the materials in a three minute period. This

argument was repeated by defense counsel on at least two

occasions during his closing argument. Under these cir-

cumstances, we believe the prosecutor could respond to

defendant’s argument by asking the jury to handle the

milk cartons and recreate portions of the defendant’s ac-

tions. Even assuming the jury did recreate the defendant’s

actions, we find no error in such conduct. The defendant

does not allege that the jurors were exposed to any ex-

traneous materials during their deliberations. See e.g.,

United States v. Renteria, 625 F. 2d 1279, 1283-84 (5th Cir.

1980) ; Farese v. United States, 428 F. 2d 178, 181-82 (5th

Cir. 1970) ; United States v. Castello, 526 F. Supp. 847, 850-

5’ (W.D. Tex. 1981). While this court recognizes the

possibility that other types of experiments in the jury room

could create substantially prejudicial influences on the

jury’s deliberations, we believe jurors must be given enough

latitude in their deliberations to permit them to use com-

mon experiences and illustrations in reaching their verdict.

United States v. Hephner, 410 F. 2d 930, 936 (7th Cir.

1969); see also Miller v. Harvey, 566 F. 2d 879, 881 (4th

Cir. 1977), cert. denied, 439 U. S. 838 (1978).

The defendant also contends that the prosecutor com-

mitted reversible error by allegedly expressing his per-

sonal opinion as to the justice of his cause in the following

statement:

I ask you to uphold the duty that you undertook when

you took that oath as a juror. You stated you would

uphold the law of the United States. I ask you to do

so today, and I would ask you based upon the evidence

to return a verdice of guilty against Mr. O. L. Avery.

Thank you.

26

Defendant argues that these remarks “clearly inferred that

[the jury] would not be upholding the laws of the United

States if they did not convict the defendant.”

This circuit has previously indicated that a prosecutor’s

statement of personal belief will usually not “rise to re-

verstble error, . . . if it is not flagrant, where proof of

guilt is overwhelming, where counsel does not object and/

or where the trial judge steps in and admonishes the jury.”

United States v. Bess, 593 F. 2d 749, 757 (6th Cir. 1979).

While we do not expressly approve of the prosecutor’s com-

ment, we cannot say it amounts to reversible error in this

case. Since the prosecutor clearly asked the jury to return

a verdict against the defendant “based upon the evidence,”

we do not believe the prosecutor’s request to uphold the law

of the United States was flagrant. Moreover, we belicve

the evidence against the defendant was overwhelming. See

Berger v. United States, 295 U. S. at 89. Accordingly, we

will not reverse defendant’s conviction on the basis of this

remark.

V.

Defendant’s final contention is that the district court

committed reversible error when it refused to instruct the

jury that it had the power to acquit the defendant even

though he was guilty of the charged offense. The instruc-

tion itself reads that “a jury is entitled to acquit the de-

fendant because it has no sympathy for the government’s

position.”

This argument is completely without merit. Although

jurors may indeed have the power to ignore the law, their

duty is to apply the law as interpreted by the court and they

should be so instructed. Sparf & Hansen v. United States,

156 U. S. 51, 102 (1895) ; United States v. Wiley, 503 F. 2d

106, 107 (8th Cir. 1974); United States v. Dougherty, 473

27

F. 2d 1113, 1130-37 (D.C. Cir. 1972); United States v. Del-

linger, 472 F. 2d 340, 408 (7th Cir. 1972), cert. denied, 410

U. 8. 970 (1973).

Accordingly, the judgment of the.district court is AF-

FIRMED.

28

APPENDIX B

No. 82-5589

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Unrrep States or America, - - Plaintiff-Appellee,

v.

Ozzre Lee Avery, JR., - - Defendant-Appellant.

ORDER—Filed January 23, 1984

Berore: Contig, Circuit Judge, and Puriuirs and CELe-

BREZZE, Senior Circuit Judges.

A majority of the court having not voted in favor of

an en banc rehearing, the petition for rehearing has been

referred to the hearing panel for disposition.

Upon consideration, it is OrpeREp that the petition for

rehearing be and hereby is Dentep.

Entered By Order of the Court

(s) John P. Hehman

Clerk

29

APPENDIX C

No. 82-5589

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Unirep States or America, - - Plaintiff-Appellee,

v.

Ozzie Lee Avery, JR., - - Defendant-A ppellant.

ORDER STAYING MANDATE—Filed February 1, 1984

OrperED, That motion to stay mandate herein pending

application to the Supreme Court for writ of certiorari is

hereby granted and the mandate is stayed for thirty days

from this date; provided that, if within such thirty days,

the applicant shall file with the Clerk of this Court the

certificate of the Clerk of the Supreme Court that the cer-

tiorari petition, record, and brief have been filed, the stay

shall continue until the final disposition of the case by the

Supreme Court. Unless this condition is complied with

within such thirty days or any extension thereof made by

the Court or any judge thereof, or if the condition is com-

- plied with, then upon the filing of copy of an order deny-

ing the writ applied for, the mandate shall issue.

Entered By Order of the Court

John P. Hehman, Clerk

(s) John P. Hehman