United States v. Joseph Gelb , 700 F.2d 875 ( 1983 )

VAN GRAAFEILAND, Circuit Judge,

concurring in part and dissenting in part:

Takoma Park, MD. — Gasoline vapor seeped through sewer lines and into homes yesterday, setting off several explosions and fires, forcing more than 2,000 people to evacuate and closing at least two schools, police said.

Fire officials said there were at least eight explosions and fires in single-family homes in two counties but all were under control by early afternoon. (United Press Bulletin, December 17, 1982.)

In 1970, Congress made it unlawful to maliciously damage or destroy by means of an explosive a building used in any activity affecting interstate commerce, 18 U.S.C. § 844(i), and defined “explosive” in part as “any chemical compounds” containing “oxidizing and combustible units ... in such proportions ... that ignition by fire ... may cause an explosion”, 18 U.S.C. § 844(j). My colleagues now hold that the jury which convicted appellant of violating this statute should not have been permitted to find, as it did, that “gasoline vapors mixed with air” is an explosive. I disagree.

Before expanding on the reasons for my disagreement, I think it well to define clearly the issue presented on this appeal. Affirmance of appellant’s conviction does not hinge upon whether “uncontained” gasoline is an explosive, but upon whether evaporating gasoline, contained or confined within the four walls of a closed structure, may be found to be an explosive. If the unhappy residents of Takoma Park, combing through the debris of their destroyed homes, were asked this question, their answer, like that of the jury below, would be a resounding “yes”.

The same answer would be given by experts in the field of fire prevention and control:

Flammable vapor-air explosions most frequently occur in confined spaces such as containers, tanks, rooms, or buildings. The violence of flammable vapor explosions depends upon the nature of the vapors as well as on the quantity of vapor-air mixture and the enclosure containing the mixture....

Gasoline is the most widely used flammable liquid. Its generation of flammable vapors at ambient temperatures is common knowledge.

National Fire Protection Association, Fire Protection Handbook 4-26 (15th ed. 1981); see also 13 National Fire Protection Association, National Fire Codes 328-17, 329-8, 329-9 (1981).

That gasoline placed in an enclosed area may result in an explosion is a fact familiar to any reader of negligence eases. See e.g., Commercial Ins. Co. v. Ferguson, 285 F.2d 527 (5th Cir.1961); Home Ins. Co. v. Hamilton, 253 F.Supp. 752 (E.D.Ky.1966), rev’d, 395 F.2d 108 (6th Cir.1968); Jenkins v. 313-321 West 37th St. Corp., 284 N.Y. 397, 31 N.E.2d 503 (1940); Daggett v. Keshner, 6. A.D.2d 503,179 N.Y.S.2d 428 (1958), aff’d, 7 N.Y.2d 981,199 N.Y.S.2d 41,166 N.E.2d 324 (1960). It is not surprising, therefore, that legislative and administrative bodies, and lexicographers have defined gasoline for many years as an explosive. Huckleberry v. Mo. Pacific R. Co., 324 Mo. 1025, 26 S.W.2d 980, 986 (1930). To reverse appellant’s conviction, we must conclude of necessity that, when Congress enacted section 844(j), it either rejected this universally accepted definition or, for some reason, deliberately excluded malicious users of this explosive from prosecution. I believe that it did neither.

To resolve an issue of statutory analysis, we must start with the words of the statute itself, Ernst & Ernst v. Hochfelder, 425 U.S. 185,197, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976), and “[ajbsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive”, Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). Under the clear language of section 844(j), any chemical compound that may cause an explosion when ignited by fire is an explosive. The Treasury Department’s Bureau of Alcohol, Tobacco and Firearms, which is charged by Congress with investigating and enforcing the provisions of section 844, see 18 U.S.C. §§ 846, 847, and whose interpretation therefore must be given “great deference”, Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), believes that section 844(j) means exactly what it says:

Under Title XI of the Organized Crime Control Act of 1970 (Title 18 U.S.C., chapter 40, section 844(j), the definition of an “EXPLOSIVE” covers generic explosive materials (i.e. dynamite), certain incendiary devices, AND any chemical compound (such as gasoline), combined with oxidizing units (air) that causes (or may cause) an EXPLOSION if ignited by fire or some other means of detonation. The additional element required by this statute is that the TARGET of the arson (explosives) related incident must be connected with INTERSTATE or foreign commerce. Hence, if such “EXPLOSIVES” are used to perpetrate an arson, and the interstate or foreign commerce element exists, then ATF’s jurisdiction under the statute (especially section 844(i)) can be applied.

Department of the Treasury, 1979 Annual Report of the Bureau of Alcohol, Tobacco and Firearms 41; 1980 Report 35.

According to the Bureau’s 1980 Report, during that year it investigated 603 “Arson Incidents”, which resulted in property damage exceeding $152,000,000. Gasoline made up 74.3% of the known accelerants involved. A substantial number of indictments have been secured, many of which unfortunately may be invalidated by my colleagues’ interpretation of the statute. ■

When a statute is clear and unambiguous, as I believe section 844(j) is, there is little reasons to delve into its legislative history. Wirtz v. Local 191, International Brotherhood of Teamsters, Chauffeurs, Warehouse-men and Helpers, 321 F.2d 445, 448 (2d Cir.1963). Moreover, judicial wisdom has long dictated that comments by individual congressmen, other than the sponsors of the legislation in question, are not appropriate sources of information from which to discover over-all legislative intent. United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 318, 17 S.Ct. 540, 550, 41 L.Ed. 1007 (1897); Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384, 395-96, 71 S.Ct. 745, 751,95 L.Ed. 1035 (1951) (Jackson, J. concurring). This is particularly true when the comments in question are of the flag-waving type which appear to be intended primarily for publication in hometown newspapers. To the extent that legislative history is relied upon, my view of the history of section 844(j) accords with that of the Seventh Circuit as expressed in United States v. Agrillo-Ladlad, 675 F.2d 905, 907-11 (7th Cir.) cert. denied, - U.S. -, 103 S.Ct. 66, 74 L.Ed.2d 67 (1982).

The Explosive Control Act of 1970, Pub.L. No. 91-452, Title XI, § 1102(a), 84 Stat. 922, 952 (1970) (codified at 18 U.S.C. §§ 841-48 (1976)), was the successor to the Civil Rights Act of 1960, Pub.L. No. 86-449, 74 Stat. 86, 87, which it repealed. The Civil Rights Act dealt with the interstate transportation of explosives with knowledge or intent that they would be used to damage or destroy a building, and the interstate flight from prosecution or confinement after conviction for unlawfully damaging or destroying a building by fire or explosive. Although the 1960 Act became effective long before “the rash of ‘political bombings’ by subversive groups in the late 1960s”, upon which my colleagues place great emphasis, the 1960 Act defined “explosives” in pertinent part in the same language as did the 1970 Act, i.e., “any chemical compounds ... that contains any oxidizing and combustible units ... in such proportions .. . that ignition by fire ... may cause an explosion.” When Congress enacted the 1970 Act, it intended to strengthen and expand the criminal prohibitions that applied to the intentional use of explosives, not to weaken them. See H.R.Rep. No. 1549, 91st Cong.2d Sess., reprinted in 1970 U.S.Code Cong. & Ad.News 4007, 4013.

The provisions of section 844 were derived from a bill submitted by the administration, H.R. 16699, and a bill introduced by Congressman Celler, H.R. 17154. Congressman Celler’s bill contained the broad definition of “explosives” that was incorporated in section 844(j). In response to an inquiry from the House Committee on the Judiciary which was considering the several bills, Assistant Secretary of the Interior Hollis Dole informed the Committee that “explosives” as defined in Congressman Celler’s bill would “include any highly flammable substance such as gasoline, cleaning fluids and many other commercial solvents.” H.R. 17154, Explosives Control 157.

The administration’s bill, which contained a narrower definition of “explosives” became section 841(d), the regulatory provision of the 1970 Act. The House Judiciary Committee took pains to note that the term “explosives”, as used in section 841(d), does not include gasoline. 1970 U.S.Code Cong. & Ad.News at 4041. The Bureau of Alcohol, Tobacco and Firearms followed suit by providing that its licensing and use regulations do not apply to gasoline manufactured, imported, or distributed for its “intended purposes”. 27 C.F.R. § 55.141. Because the exceptions applicable to the regulatory provisions are inapplicable to section 844(j), 1970 U.S.Code Cong. & Ad.News at 4047, these specific references to gasoline must be deemed significant when consideration is being given to the latter section.

My colleagues’ reliance upon the passage of the Anti-Arson Act of 1982 to support their holding that appellant did not violate section 844(j) is, I suggest, misplace;!. The 1982 Act was passed because (1) it was difficult to prove that arson damage was caused by means of an explosive, and (2) the courts that decided United States v. Gere, 662 F.2d 1291 (9th Cir.1981) and United States v. Birchfield, 486 F.Supp. 137 (N.D.Tenn.1980) had refused to treat gasoline as a “mechanical mixture ... that contains any oxidizing and combustible units ... in such proportions ... that ignition by fire ... may cause an explosion.” H.R. No. 678, 97th Cong., 2d Sess., reprinted in 1982 U.S.Code Cong. & Ad.News, 2631, 2632. In enacting the Anti-Arson Act, Congress reworded subdivisions (e), (f), (h), and (i) of section 844 so that no court thereafter could misinterpret them.

I would affirm appellant’s conviction on all counts.