Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 Cr 370 -- Susan Getzendanner, Judge.
Before PELL and CUDAHY, Circuit Judges, and BONSAL, Senior District Judge.*fn*
PELL, Circuit Judge. Defendants appeal convictions on charges stemming from a fire that destroyed their downtown Chicago restaurant. Sadik "Sonny" Xheka and Beha "Billy" Xheka were found guilty by a jury in interstate commerce by means of an explosive in violation of 18 U.S.C. §§ 371, 844(i). Sonny was also convicted of the substantive offense of violation of section 844(i), while codefendant Chris Callas was acquitted on both counts. Because of the nature of the case, and the plethora of claims advanced by defendants, we will review the facts in some detail.
We must view the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942). The evidence presented at trial, if believed by the jury, proved that the following events took place.On July 1, 1976, Wadie Howard, a well-known arsonist, met with Chris Callas in a bar. Howard and Callas had been acquainted for many years. Callas told Howard that he had a friend, named Sonny, who had a problem that Howard could probably solve. Callas asked Howard to pass along some money if he were rewarded for his efforts. Callas did not tell Howard what the nature of Sonny's problem was, but did give him the address of the Bull-n-Bear Restaurant, the restaurant owned by the Xheka brothers.
Two days after this conversation Howard drove to the Bull-n-Bear and asked the bar maid for Sonny. Sadik Xheka appeared and Howard introduced himself and explained that he had been sent by Callas. Before talking with Howard Sonny made a brief telephone call. After the call Sonny offered Howard a drink and showed him around the restaurant. Sonny and Howard proceeded to the lower level cooking area where they met Sonny's brother, Billy. Sonny asked Howard to name a price for destroying the premises. Billy and a cook were standing a few feet away during this conversation. Howard said that he would burn the restaurant for $5,000 and expenses. Sonny accepted the offer, stating that "I can afford that because I have a good insurance policy plus an interruption clause in my insurance policy." Howard was given $400 for expenses and agreed to return at a later date to collect the first payment of the $5,000. Billy, who understood and spoke English, said nothing throughout this discussion.
On July 10 Howard returned to the Bull-n-Bear and entered the lower level office with Sonny and Billy. Sonny gave him an envelope containing $2,500 in cash and said that the restaurant had to be totally destroyed by the first of the month. Once again Billy did not participate in the conversation. On July 21 Howard returned to receive the final $2,500. Billy and the cook were present when Howard counted the money. Billy said nothing during the transaction.
The following day Howard went to a junk-yard and purchased two 55-gallon drums, which fortuitously were labeled as fruit juice concentrate. On July 23 Howard filled the drums with gasoline and then drove to the Bull-n-Bear. The maintenance staff at the receiving dock would not allow Howard to deliver the drums to the restaurant, so he enlisted Sonny's aid. The two men obtained a cart and wheeled the containers into the cooking area. Billy and the cook were in the kitchen, and the cook joked that he had never seen cooking oil delivered in that fashion before. On Sonny's instructions Howard placed the drums in the wine cellar.
Howard returned to the Bull-n-Bear Saturday night, July 24, and met with Sonny. Sonny gave Howard a key to the restaurant and left. On direct examination Howard testified that he also left, but on cross-examination Howard stated that he had entered the Bull-n-Bear and removed twelve cases of liquor, apparently on the belief that it would be put to better use if he took it than if it were destroyed along with the restaurant.
On July 25, at approximately 10:30 p.m., Howard returned to burn the restaurant. He had not informed Sonny or Billy that this was the date he had chosen for the fire. A few minutes after Howard entered the restaurant the building engineer arrived. Howard let him in and explained that he was the "clean-up man." The engineer examined the air-conditioning and left. Howard spread hand-towels throughout the restaurant and poured out the gasoline. While Howard was preparing the fire, Sonny, Billy, and a white-haired man were sitting in the office playing cards. When Howard finished pouring out the gasoline Sonny suggested to his fellow cardplayers that they leave. Sonny removed some money and insurance papers from the safe, and the three men left the building. Howard then placed one of the gas-soaked towels next to the door, lit the end of the towel and stepped out into the street. As Howard walked toward his car he heard an explosion and breaking glass.
A woman parked across the street from the Bull-n-Bear saw Howard leave the restaurant, and then heard an explosion and saw flames coming from the building. The building engineer testified that he had entered the restaurant twice that night and had seen Howard.*fn1 The engineer spotted the fire at 12:30 a.m. and pulled the fire alarm.
The fire investigators determined that the fire had been purposely set. Howard was immediately suspected when his description was given by the engineer and the woman who had seen him leave the fire. When interviewed Sonny denied any knowledge of Howard or of the 55-gallon drums found in the restaurant. After Howard was arrested, however, Sonny refused to sign a complaint.
Howard was arrested on July 26. He called his wife, Barbara Jackson, and told her to call Sonny and arrange a meeting. Jackson was to bring a photograph of Howard as identification and obtain money for bail and attorney's fees from Sonny. Jackson, accompanied by a friend, Jean Thompson, met with Sonny. Because of some confusion regarding the amount of money Howard needed, Jackson and Thompson met with Sonny on two more occasions.
Howard was released on bond on July 28. Shortly thereafter he met with Sonny at a restaurant owned by Shaban Islami. Howard asked for an additional $2,000 for attorney's fees. Islami gave Sonny a bundle of cash from which Sonny gave Howard the needed money. This scenario was repeated a week later when Howard extracted $750 from Sonny for "pocket money."
In December of 1976 the Xhekas filed suit against their insurance company to obtain over $800,000 in compensatory damages. That suit was still pending at the time of trial. Records from the Bull-n-Bear revealed that the restaurant had suffered an actual operating loss of almost $25,000 between March and June of 1976.
The final piece of evidence offered by the Government was a tape recording of a conversation that took place in 1979 between Chris Callas and Howard, who was cooperating with the Government. The gist of the conversation, which will be discussed in detail later, was that Callas thought that the Xhekas should cooperate with Howard so that they could obtain the insurance payment.
Defendants did not testify, but they did present several witnesses. Imaculotta Baki, bookkeeper at the Bull-n-Bear, testified that she had been in the restaurant when the meetings allegedly took place and that Howard had never been in the restaurant. As Callas was acquitted we need not discuss his witnesses, other than to note that one witness testified that the bar in which Howard claimed to have met with Callas had been demolished before July of 1976.
Defendants' first contention is that 18 U.S.C. § 844(i) is inapplicable to the facts of this case. In pertinent part section 844(i) provides punishment for "[w]hoever maliciously damages or destroys . . . by means of an explosive, any building . . . used in interstate or foreign commerce." "Explosive" is defined in section 844(j) as:
gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuzes . . . detonators, and other detonating agents, smokeless powders, other explosive or incendiary devices within the meaning of paragraph (5) of section 232 of this title, and any chemical compounds, mechanical mixture, or device that contains any oxidizing and combustible units, or other ingredients, in such proportions, quantities, or packing that ignition by fire . . . may cause an explosion. (emphasis added)
The Government proceeded under the theory that the gasoline spread throughout the restaurant, and the fumes it produced, constituted a chemical compound or mechanical mixture possessing the requisite characteristics under paragraph (j). In support of this theory the Government presented expert testimony, by stipulation, that "gasoline is a chemical compound, mechanical mixture or device that contains combustible units or other ingredients in such proportions, quantities or packing that ignition by fire . . . may cause an explosion." Evidence was also presented to prove that ignition of the gasoline-soaked trailers had in fact caused an explosion.
Defendants argue that, while their actions may constitute arson in violation of state law, gasoline poured throughout a building does not fall within the statutory definition of "explosive." A similar contention was rejected by this court in United States v. Agrillo-Ladlad, 675 F.2d 905 (7th Cir. 1982). In Agrillo-Ladlad defendants had destroyed a commercial printing company by spreading naptha-soaked newspaper throughout the building.The process of preparing the fire took two hours, allowing the building to fill with naptha fumes. When ignited the fumes exploded. At trial the Government presented expert testimony that naptha vapors and air form a potentially explosive mixture. After analyzing the history and language of the statute we concluded that this situation was covered by section 844(j).
The legislative history indicates that Congress intended to define broadly the term "explosive" for purposes of the malicious use of explosives section of the Organized Crime Control Act; that Congress realized that state and federal jurisdiction would overlap in certain instances, such as arson cases; and that simple devices using common substances could be used to create an explosive within the meaning of the Act. 675 F.2d at 911.
The Eighth, Tenth and Eleventh Circuits have reached the same conclusion when confronted with facts almost identical to those before us today. United States v. Hepp, 656 F.2d 350 (8th Cir. 1981) (mixture of methane, a natural gas, and air held to be mechanical mixture within the scope of section 844(j)); United States v. Poulos, 667 F.2d 939, 942 (10th Cir. 1982) ("any person would conclude that the pouring of gasoline around a room with the intention of igniting it or the fumes with an incendiary device was prohibited by sections 844(i) and (j)"); United States v. Hewitt, 663 F.2d 1381 (11th Cir. 1981) (10 gallons of gasoline poured down a chimney and ignited is a chemical compound under section 844(j)). In United States v. Gere, 662 F.2d 1291 (9th Cir. 1981), the Ninth Circuit rejected this broad interpretation of the term "explosive." In Gere the court had not been presented with any expert testimony and did not analyze the legislative history of sections 844(i) and (j). For these reasons we found Gere unpersuasive when we decided Agrillo-Ladlad, and we find it unpersuasive now. Similarly, we reject the reasoning of United States v. Birchfield, 486 F. Supp. 137 (N.D. Tenn. 1980).
It is clear that the gasoline poured throughout the Bull-n-Bear was an explosive within the meaning of section 844(j). Wadie Howard testified that preparing the fire took several hours, providing plenty of time for the gasoline fumes to mix with the air and form an explosive mixture. As the court noted in United States v. Poulos, 667 F.2d at 942, "It is common knowledge that gasoline is highly combustible and capable of exploding. The government's expert witness testified to the fact that gasoline can be an explosive, and it does fit under this statute." We hold that the gasoline and gasoline-soaked towels, which exploded when ignited, fall within the proscription of 844(i).*fn2
Defendants argue that they were denied a fair trial due to prosecutorial misconduct, bias on the part of the trial judge and undue limitations placed upon their cross-examination of ...