Commonwealth v. Aldana , 477 Mass. 790 ( 2017 )

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SJC-12258
COMMONWEALTH vs. MARC ALDANA.
Worcester. March 7, 2017. - September 19, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.1
Destructive or Incendiary Device or Substance.
Indictments found and returned in the Superior Court
Department on December 20, 2013.
A pretrial motion to suppress evidence was heard by Daniel
M. Wrenn, J., and the cases were heard by Richard T. Tucker, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Ethan C. Stiles for the defendant.
Joseph A. Simmons, Assistant District Attorney, for the
Commonwealth.
LENK, J. In the course of arresting the defendant at his
apartment on a default warrant, Worcester police officers saw in
his kitchen three bags containing unknown powders. One of the
1
Justice Hines participated in the deliberation on this
case prior to her retirement.
2
bags was labeled "aluminum powder," another "red iron oxide,"
and one bag was not labeled. An unidentified red-brown powder
was spilled on the counter and the kitchen window sill, and
smudged on the wall around the window. Concerned about the
appearance of the bags of powder, given the other circumstances
in the apartment, one of the officers undertook an Internet
search for information on the labeled substances. On the basis
of information derived from that search, a detective requested
assistance from the Federal Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF), the State police, and the local fire
department. Representatives of these agencies arrived, seized
the bags of powder, and removed them from the apartment.
The defendant thereafter was indicted on two charges of
possession of the ingredients to make an incendiary device or
substance with the intent to do so, in violation of G. L.
c. 266, § 102 (a), and a single charge of possession of an
incendiary device or substance, in violation of G. L. c. 266,
§ 102 (c).
After a jury-waived trial in the Superior Court, the
defendant was convicted of both charges under G. L. c. 266,
§ 102 (a), and acquitted of the charge under G. L. c. 266,
§ 102 (c).2 In this appeal, the defendant argues that the
2
The defendant was not charged under G. L. c. 148, § 12,
3
ingredients seized and observations made by police during the
search of his apartment should have been suppressed, and that
the evidence at trial was in any event insufficient to support
his convictions. In the alternative, the defendant contends
that his convictions are duplicative and that one must be
vacated.
To convict the defendant of a violation of G. L. c. 266,
§ 102 (a), the Commonwealth was required to prove beyond a
reasonable doubt that the defendant had in his possession or
control, without lawful authority to do so, a "substance . . .
which, alone or in combination, could be used to make a
destructive or incendiary device or substance" and that he
intended to "make a destructive or incendiary device or
substance." To prove that what the defendant intended to make
was a violation of the statute, the Commonwealth was required to
establish that the device or substance was "designed or adapted
to cause physical harm to persons or property by means of fire,
explosion, deflagration or detonation and consisting of [a]
substance capable of being ignited, whether or not contrived to
ignite or explode automatically." G. L. c. 266, § 101.
We conclude that the evidence introduced at trial was not
sufficient to establish that the defendant was without lawful
which is applicable to pyrotechnics, e.g., fireworks.
4
authority to possess the powders themselves or the incendiary
substance, thermite, that the Commonwealth asserted he intended
to make. Since the evidence at trial was insufficient to
establish at least one critical element of the Commonwealth's
case, the defendant's convictions cannot stand. Accordingly,
the matter must be remanded to the Superior Court for entry of
required findings of not guilty.
1. Background. After a hearing on the defendant's motion
to suppress, a Superior Court judge denied the motion in a
written decision containing comprehensive findings of fact. The
defendant thereafter was tried, jury-waived, by a different
Superior Court judge. All of the individuals who had testified
at the hearing on the motion to suppress -- officers involved in
the arrest and the building manager -- testified to essentially
the same facts at trial. In addition, testimony was introduced
from another member of the Worcester police department, members
of the State police bomb squad, a chemist and a State police
evidence technician, two Worcester fire department lieutenants,
and a defense expert in chemistry. In announcing his verdicts,
the trial judge issued limited oral findings of fact and a brief
explanation of his reasoning. We recite the facts the trial
judge could have found, reserving some facts for later
discussion.
a. Evidence at trial. On October 15, 2013, officers of
5
the Worcester police departments went to the defendant's
apartment to arrest him on a default warrant for a charge of
disorderly conduct. Detective Sergeant Mark Richardson of the
Worcester police department, and other Worcester police
officers, entered the building and went to the door of the
defendant's apartment. Richardson knocked on the door and
announced the police presence several times without receiving a
response. After the officers heard movement inside the
apartment and the sounds of breaking glass, Richardson ordered
one of them to force entry into the apartment.3
The defendant was arrested almost immediately upon the
police entry. Through the kitchen doorway, officers could see
an open kitchen cabinet and drawers standing open. The officers
saw two foil bags of powder, and one unlabeled plastic bag
containing a reddish-brown powder, on the counter and in the
open kitchen cabinet. One foil bag was labeled "aluminum
powder" and the other was labeled "red iron oxide." The
officers did not recognize the names, and were not familiar with
3
In his motion to suppress, the defendant challenged, among
other things, the propriety of the police entry, as he does
before us. Because of the result we reach, we do not address
the defendant's claims concerning the forced entry, or the other
issues raised in his motion to suppress, including whether it
was immediately apparent that the powders were dangerous, such
that their seizure without a warrant fell within the plain view
exception to the warrant requirement. We also do not reach the
question whether the convictions were duplicative.
6
the appearance of the powders. One of the officers conducted an
Internet search on his cellular telephone and reported to
Richardson that, when mixed together, red iron oxide powder and
aluminum powder produce thermite, a substance Richardson
believed posed a significant public safety concern.
Thereafter, Richardson contacted ATF, the State police, and
the Worcester fire department; at some point, he conducted a
"sweep" of the apartment. State police Trooper Eric Gahagan, a
bomb squad technician, arrived and examined the three bags of
powders. Based on the appearance of the substance, he suspected
that the unlabeled bag contained thermite. He took three
samples from each of the three bags of powder and placed them in
glass vials. Gahagan also performed a "sweep" of the apartment
for signs of other possibly dangerous materials, and any means
for lighting Thermite, and found none. He then took the samples
back to the State police crime laboratory for testing. The
remaining powders were placed in a plastic bin and transported
to a Department of Public Works site to be destroyed by burning.
Gahagan and an ATF agent mixed the three bags of powder
together, at the site, and lit them remotely using a robot with
an ignited road flare. The mixture burned for approximately
five minutes before it consumed all of the aluminum and burned
itself out.
A State police chemist testified regarding the steps he
7
took to determine whether the powders seized from the
defendant's apartment were, indeed, thermite. First, he
examined samples of each of the three powders under a microscope
and confirmed that they were aluminum, red iron oxide, and a
mixture of aluminum and red iron oxide. He then attempted to
ignite the mixture with a Bunsen burner and was not able to do
so; he did not attempt to ignite it with tools that burn at
higher temperatures, such as a road flare or a magnesium strip.
The technical evidence concerning the properties of the
various powders seized and their testing was essentially
undisputed. Experts for both the Commonwealth and the defendant
testified that thermite can be created by combining red iron
oxide and aluminum powder, and that specific ratios are
necessary for it to burn. Neither iron oxide nor aluminum
powder is ignitable individually. The experts agreed that the
only reason to combine red iron oxide and aluminum powder is to
create a thermite mixture that can be ignited. When ignited,
thermite burns at very high temperatures, at approximately 4,000
degrees Fahrenheit. Thermite is not explosive, will not ignite
spontaneously, and, because of the high temperature at which it
burns, cannot be ignited with an ordinary flame, such as a match
or a Bunsen burner. To reach the high temperatures necessary to
ignite thermite requires heat sources such as road flares,
8
firework sparklers, or magnesium strips.4
Thermite is used in military operations to dispose of old
equipment or to disable it in the field so that it does not fall
into enemy hands, and in civilian operations for metal salvage.
Thermite also is used for cutting metal, including steel; for
welding or filling in damaged portions of railroad tracks; for
spot welding; for cutting through locks to open doors and safes;
and, because it is not extinguished by water, in underwater
welding.5
The sole evidence as to the licensing and permitting
requirements applicable to thermite was introduced through
Lieutenant Robert Mansfield of the Worcester fire department.
Mansfield testified that he was responsible for fire hazard
identification, inspection, and suppression in Worcester.
Through his testimony, the Commonwealth introduced, and sought
judicial notice of, §§ 9, 12, and 13 of G. L. c. 148, the State
fire prevention act, and 527 Code Mass. Regs. §§ 13.00 (2012), a
4
Both Commonwealth and defense experts indicated that they
believed thermite is relatively safe, is difficult to light, and
is stable when unlit. The experts also stated that, in their
many years of experience, investigations at the State police
crime laboratory involving thermite are quite rare.
5
Testimony at trial also indicated that red iron oxide
(rust) and aluminum powder, individually, have ordinary civilian
uses. One use for red iron oxide is as a pigment.
9
regulation in effect at the time of the defendant's arrest,6
governing storage, use, and permitting of explosives, based on
§ 13 of the statute.7 Mansfield explained that G. L. c. 148,
§ 9,8 authorizes the fire department to require and issue permits
to store and use certain explosive and inflammable substances
and that G. L. c. 148, § 12,9 requires licenses for the use and
6
Effective January 1, 2015, the version of 527 Code Mass.
Regs. in effect at the time of the defendant's arrest was
repealed. The current State comprehensive fire safety code is
found in 527 Code Mass. Regs. §§ 1.00 (2016).
7
Copies of the statutes and regulations Lieutenant Robert
Mansfield discussed were presented to the judge and marked for
identification. The judge did not state explicitly whether he
took judicial notice of them. The parties dispute whether the
judge also implicitly took judicial notice of 527 Code Mass.
Regs. §§ 14.00, which then regulated the use and storage of
certain inflammable solids, liquids, and gases. The transcript
establishes that, at trial, the judge was not presented with 527
Code Mass. Regs. §§ 14.00 nor asked to take notice of it. See
discussion, infra.
8
"The board shall make rules and regulations for the
keeping, storage, use, manufacture, sale, handling,
transportation or other disposition of gunpowder, dynamite,
crude petroleum or any of its products, or explosive or
inflammable fluids or compounds, tablets, torpedoes or any
explosives of a like nature, or any other explosives, fireworks,
firecrackers, or any substance having such properties that it
may spontaneously, or acting under the influence of any
contiguous substance, or of any chemical or physical agency,
ignite, or inflame or generate inflammable or explosive vapors
or gases to a dangerous extent . . . ." G. L. c. 148, § 9.
9
"No building shall be used for the manufacturing of
fireworks or firecrackers without a license from the local
licensing authority. No building or structure shall be used for
the manufacturing or storage of explosive materials without a
permit issued by the marshal." G. L. c. 148, § 12.
10
storage of, inter alia, fireworks and firecrackers. G. L.
c. 148, § 13,10 governs the storage, manufacture, and sale of
explosives. The regulations concerning the manufacture, sale,
and storage of explosives, implementing the provisions of G. L.
c. 148, § 13, were then contained in 527 Code Mass. Regs.
§§ 13.00.
Mansfield testified that the fire department's authority to
regulate the storage of thermite was derived from 527 Code Mass.
Regs. §§ 13.00.11 Although that regulation did not mention
thermite directly, he stated that thermite fell within its
requirements because it explicitly incorporated 27 C.F.R.
§ 55.23, a Federal regulation setting forth a list of explosive
materials.12 To possess thermite in his apartment, the defendant
10
"No building or other structure shall, except as provided
in [§ 14], be used for the keeping, storage, manufacture or sale
of any of the articles named in [§ 9, defining blasting
requirements], unless the local licensing authority shall have
granted a license to use the land on which such building or
other structure is or is to be situated for the aforementioned
uses, after a public hearing . . . ." G. L. c. 148, § 13.
11
Title 527 Code Mass. Regs. §§ 13.00 applied to the use
and storage of "explosives" and "explosive materials," and also
provided that "[t]he term also includes any material determined
to be contained in the list of explosive materials provided for
in 27 [C.F.R. §] 55.23." 527 Code Mass. Regs. § 13.03.
"Explosive" was defined as "any chemical compound, mixture or
device, the primary or common purpose of which is to function by
explosion; i.e., with substantially instantaneous release of gas
and heat." Id. See note 6, 8, supra.
12
Contrary to this testimony, the then-applicable Federal
11
would have been required to have both a license from the State,
after passing an explosives handling course, and a permit from
the city of Worcester. Mansfield had examined the city's
records and found no indication that the defendant had a permit
to possess thermite; he stated also that he would never issue
such a permit to anyone living in a multiunit residential
building. He did not explain which of the statutory or
regulatory definitions pertaining to "explosive," see G. L.
c. 266, § 101 (defining "[e]xplosive" as "any element, compound
or mixture that is manufactured, designed or used to produce an
explosion"), were applicable to thermite.
Mansfield testified on cross-examination, without reference
to any applicable statute or regulation, that possession of
aluminum powder or red iron oxide would require a permit if it
were above "a certain amount" because they are an "inhalation
hazard."13 No permit was required for possession of aluminum
regulation listing specific explosives did not in fact contain
any mention of thermite. See 27 C.F.R. § 55.23; 77 Fed. Reg.
58,410 (Sept. 20, 2012).
13
Gahagan testified that red iron oxide and aluminum powder
can be purchased legally, and stored lawfully in a residence.
He also noted that the recipe for mixing thermite from the
compounds is readily available on the Internet; he did not
mention any requirement of a permit. The defense expert also
testified that these components are legally available, can be
ordered over the Internet, and are shipped by mail; he testified
that the only restriction he was aware of was that certain
companies would not ship them to a college dormitory address.
12
oxide. He also agreed that, under G. L. c. 148, § 13, certain
quantities of explosives could be held without a permit or a
license.
b. Trial proceedings. At the close of the Commonwealth's
case, the judge denied the defendant's motion for required
findings of not guilty. At the close of all the evidence, the
judge found the defendant guilty of two counts of possession of
the ingredients necessary to make a destructive or incendiary
device or substance without lawful authority and with the intent
to make such a device or substance, in violation of G. L.
c. 266, § 102 (a). The defendant was acquitted of possession of
an incendiary device or substance in violation of G. L. c. 266,
§ 102 (c).
The judge found that the evidence proved beyond a
reasonable doubt that "the defendant was in possession of
aluminum powder and red iron oxide," and also in possession of
"a mixture of these two substances." The judge explained that
the defendant's combination of the two substances, and the
absence of evidence that the defendant intended to use thermite
for a legitimate purpose, demonstrated his intent to make
thermite. The judge did not make findings or rulings or explain
his reasoning as to whether the defendant had lawful authority
to possess thermite or its components.
The judge also found that, while the evidence showed that
13
the mixture of the three bags combined by Gahagan and the ATF
agent burned in a manner consistent with thermite, the evidence
did not establish beyond a reasonable doubt that the mixture
found in the defendant's kitchen would have been ignitable. He
noted that, before investigators disposed of the seized powders,
all three of them had been combined into a single mixture,14 and
that the combination burned as thermite would burn. The judge
determined that, because the act of combining the three bags
might itself have created the proper ratio, this did not
establish that the seized mixed powder would have burned in the
same manner, if at all. He noted in this respect that the bags
of powders had not been weighed and the ratio of materials in
the mixed bag had not been determined.15
The defendant appealed, and we transferred the matter from
the Appeals Court on our own motion.
14
According to the ATF agent's report, which was introduced
in evidence and about which Gahagan testified, "The red iron
oxide and aluminum powder were spread in a line along the
pavement with the suspected Thermite spread on top of the
previous two chemicals."
15
The judge explained his decision to acquit the defendant
of the charged violation of G. L. c. 266, § 102 (c), as follows:
"My reasons include among other things the lack of the
weighing or testing or burning of the mixture separately.
I do not find beyond a reasonable doubt that the mixture
would have burned, even with a flare igniter, if done
without the presence of the remaining aluminum powder and
red iron oxide."
14
2. Discussion. On appeal, the defendant argues that it
was error to deny his motion to suppress, the evidence was
insufficient to support his convictions, and the convictions are
duplicative. We agree that the evidence was insufficient to
support the convictions, and therefore do not address the
defendant's other claims.
To convict a defendant of a violation of G. L. c. 266,
§ 102 (a), the Commonwealth must prove that the defendant
(1) possessed or controlled, (2) without lawful authority, (3) a
"substance . . . which, alone or in combination, could be used
to make a destructive or incendiary device or substance," and
(4) the defendant intended to "make a destructive or incendiary
device or substance." To prove that the intended device or
article fell within the meaning of a "destructive or incendiary
device or substance," the Commonwealth was required to prove
that the device or substance was "designed or adapted to cause
physical harm to persons or property by means of fire,
explosion, deflagration or detonation and consisting of [a]
substance capable of being ignited, whether or not contrived to
ignite or explode automatically." G. L. c. 266, § 101.
We conclude that the evidence was not sufficient to
establish that the defendant lacked lawful authority to possess
or control the powders seized, either individually or combined
15
as thermite.16 The Commonwealth offered evidence that thermite,
operating as it does through heat and not explosion, is an
inflammable or incendiary substance, rather than an explosive
substance. The Commonwealth did not offer evidence, through any
witness or otherwise, that the possession of thermite, or, as
here, of its component parts, is subject to regulation as an
inflammable or incendiary substance. Mansfield's testimony did
not bridge the evidentiary gap.17 Because the trial evidence
16
As noted, the Commonwealth was also required to prove
that the defendant intended to make a device or substance
"designed or adapted to cause physical harm to persons or
property by means of fire, explosion, deflagration or
detonation" as defined in G. L. c. 266, § 101. The Commonwealth
proceeded on the theory that the possession of thermite,
standing alone, would suffice to establish such a device or
substance. The issue not having been raised or briefed, we do
not address the question of the sufficiency of the evidence in
this regard. But see Commonwealth v. Loadholt, 456 Mass. 411,
431, vacated on other grounds, 562 U.S. 956 (2010), citing
Commonwealth v. Mendes, 44 Mass. App. Ct. 903, 904 (1997)
(distinguishing object "designed for" given use and object that
"functions as" particular type of thing). "[A] device that
explodes is not covered by [a similar Federal] statute merely
because it explodes." United States v. Hammond, 371 F.3d 776,
780 (11th Cir. 2004) (cardboard tube filled with explosive
powder was not designed as weapon and therefore was not
destructive device under Federal statute; to establish that
explosive is weapon, and therefore prohibited destructive
devices requires "plus" factor). Compare United States v. York,
600 F.3d 347, 354-355 (5th Cir. 2010) (concluding that, under
similar Federal statute, Molotov cocktail is designed as weapon
and therefore is destructive device).
17
Mansfield did not indicate which of the statutory or
regulatory definitions pertaining to "explosives," see G. L.
c. 266, § 101, he believed were applicable to thermite.
16
established that thermite is not an "explosive," but, rather, an
"inflammable" or "incendiary" substance, the regulation as to
explosives has no apparent application to thermite.
a. Sufficiency of the evidence of absence of lawful
authority. In arguing that the evidence was not sufficient to
support a conviction under G L. c. 266, § 102 (a), insofar as
the Commonwealth failed to establish that he lacked lawful
authority to possess thermite, the defendant does not challenge
the testimony that he did not have a permit from the city of
Worcester. Rather, he argues that the Commonwealth failed to
establish that such a permit was necessary. He maintains that
the fire safety regulations of which the judge was asked to take
judicial notice, discussed at trial, concerned the storage of
explosives, and therefore were not applicable to thermite, which
is an inflammable.
The defendant argues further that, even had 527 Code Mass.
Regs. §§ 14.00 (2012), the regulation then governing the storage
of inflammables been introduced and considered, see note 7,
supra, the evidence did not show that thermite was a "flammable
solid,"18 which requires permits for use and storage if the
18
General Laws c. 148, § 9, authorizes the creation of
regulations governing "inflammable fluids or compounds." Title
527 Code Mass. Regs. § 14.03 then established differing storage
and permitting requirements for flammable liquids, gases, and
solids. As thermite is a powder, and a compound, any regulation
17
weight of the material is beyond the amount of a regulatory
exemption.19 Because the weights of the bags were not introduced
at trial, there was no evidence that the powders in the
defendant's possession exceeded the exempt amounts. Had the
limited quantities noted on the labeled bags been an accurate
representation of the weights, moreover, the amounts would have
fallen within the amount allowed by the exemption.
"Because the absence of lawful authority or justification
is an element of each of the crimes charged, the Commonwealth
must prove beyond a reasonable doubt that [the] defendant acted
without lawful authority or justification." Commonwealth v.
Cabral, 443 Mass. 171, 179 (2005).
i. Applicable regulation. All of the regulations of which
the judge was asked to take notice, and all of the testimony
concerning the required permits and licensing, were applicable
applicable to it would have had to fall under the regulations on
"flammable solids," and not under the sections pertaining to
liquids and gases. See id.19
The then fire safety regulations on explosives also
contained such exemptions. See 527 Code Mass. Regs. § 13.04(1)
(in accordance with provisions of G. L. c. 148, § 13, "the
following quantities of explosive materials . . . shall be
exempt from License, Registration, and Permit and may be kept,
or stored in a building or other structure"); 527 Code Mass.
Regs. § 13.04(1)(f) (exempting "[s]pecial industrial explosive
devices when in quantities of less than [fifty] pounds net
weight of explosives" and providing that materials falling under
this exemption "may be kept, or stored in a building or other
structure").
18
to explosives. The expert evidence at trial established that
thermite is an "inflammable" or "incendiary" that operates
through heat; it did not establish that thermite is an
"explosive" as defined in 527 Code Mass. Regs. § 13.03.20
Mansfield, the fire department lieutenant responsible for fire
hazard identification, inspection, and suppression, testified
that the fire department's authority to regulate the storage of
thermite was derived from 527 Code Mass. Regs. §§ 13.00, which
then governed explosives. Neither he nor any other Commonwealth
witness explained which of the statutory or regulatory
definitions pertaining to "explosives" were applicable to
thermite, a substance which the expert evidence at trial
established is an "inflammable" or "incendiary" that operates
through heat.
The Commonwealth argues in its brief that the judge could
also have taken judicial notice, albeit implicitly, of the then
regulation for the use and storage of inflammables, 527 Code
Mass. Regs. §§ 14.00. That regulation was not mentioned at
trial, and no copy of it was introduced; nor was there any
indication at trial or in the judge's reading of the verdicts
20
Gahagan described ignited thermite as undergoing a
chemical reaction which creates a new chemical compound. The
aluminum powder provides the fuel to the iron oxide, and they
burn at a much higher temperature as the reaction occurs. The
resulting reaction produces a "liquid molten metal," which cools
to a slag left behind after the reaction has completed.
19
that the judge had considered it.21 Moreover, we have not
determined that a judge may, sua sponte, take judicial notice of
a regulation or implicitly rely on such a regulation in reaching
a verdict; when a judge takes judicial notice at a jury trial,
he or she must explain that determination to the jury. See
Commonwealth v. Finegan, 45 Mass. App. Ct. 921, 922 (1998);
Mass. G. Evid. §§ 201, 202 (2017), citing Department of Revenue
v. C.M.J., 432 Mass. 69, 76 n.15 (2000) (in criminal case,
"party has right to notice of matters that court will
adjudicate"). In any event, because it was the Commonwealth's
burden to establish that the defendant was without lawful
authority to possess thermite, it was required to prove that a
specific permit or license was necessary. See Commonwealth v.
Ferola, 72 Mass. App. Ct. 170, 174 & n.4 (2008) ("Even if
Klonopin were a substance so designated in the United States
Attorney General's regulations, see 21 C.F.R. § 1308.14 [2006],
no such proof was adduced at trial").
The judge, as fact finder, was entitled to credit
Mansfield's testimony that the defendant did not have a permit
from the city of Worcester, a question of fact. That, however,
does not answer the more fundamental question whether a permit
21
In support of this argument, the Commonwealth notes that
the regulation on inflammables was mentioned in its opposition
to a motion to dismiss. That motion, however, was heard by a
different judge, more than a year before trial.
20
was required in these circumstances. Such a determination is a
question of law -- the applicable regulation and the meaning of
its terms -- which a reviewing court considers de novo. See,
e.g., Ivey v. Commissioner of Correction, 88 Mass. App. Ct. 18,
23 (2015).22 See also Town Fair Tire Ctrs., Inc. v. Commissioner
of Revenue, 454 Mass. 601, 604-605 (2009).
ii. Whether a permit would have been required under 527
Code Mass. Regs. §§ 14.00. The judge did not explain his
determination that the defendant lacked authority to possess
thermite. Had 527 Code Mass. Regs. §§ 14.00 been proffered and
considered, however, the evidence was insufficient in any event
to establish the necessity of a permit. The evidence did not
show that thermite fell within the definition of those
inflammable materials then regulated under 527 Code Mass.
Regs. §§ 14.00. Further, even were we to assume that thermite
did fall within the definition of "flammable solid" in that
regulation, the evidence did not establish that the amount of
the substances the defendant possessed would have exceeded the
22
"'The interpretation of a regulation is a question of law
which we review de novo,' Commonwealth v. Hourican, 85 Mass.
App. Ct. 408, 410 (2014), applying 'the traditional rules of
statutory construction,' Young v. Patukonis, 24 Mass. App. Ct.
907, 908 (1987). 'This is so because a properly promulgated
regulation has the force of law . . . and must be accorded all
the deference due to a statute.' Borden, Inc.[ v. Commissioner
of Pub. Health, 388 Mass. 707, 723, cert. denied, 464 U.S. 936(1983)]." Ivey v. Commissioner of Correction, 88 Mass. App. Ct.
18, 23 (2015).
21
one hundred pound exemption from the permit requirement set
forth in the regulation.
A. Inflammable solid. As stated, had 527 Code Mass.
Regs. §§ 14.00, then regulating the storage and use of
"flammable and combustible liquids, flammable solids or
flammable gases," been considered, the evidence was insufficient
to establish that it would have been applicable to thermite.
There was neither expert testimony nor other evidence introduced
that thermite (a solid, not a liquid or a gas)23 met the
definition of "flammable solid" under 527 Code Mass.
Regs. § 14.02. See Commonwealth v. Green, 408 Mass. 48, 50-51
(1990) ("The Commonwealth could have easily met its burden of
proof that codeine was a derivative of opium by presenting
expert testimony"). The evidence that was introduced as to the
properties of thermite, moreover, shows that it has none of the
qualities set forth in the regulatory definition of "flammable
solid" then applicable.
Pursuant to 527 Code Mass. Regs. § 14.02, a flammable solid
was "[a] solid substance, other than one classified as an
explosive, which is liable to cause fires through friction,
through absorption of moisture, through spontaneous chemical
changes, or as a result of retained heat from manufacturing or
23
The experts testified that thermite is a combination of
very fine powders.
22
processing." Undisputed expert testimony at trial established
that thermite does none of these things. It can be soaked in or
made to float on water without any problem. It does not ignite
through friction or spontaneous chemical changes. The act of
mixing iron oxide and aluminum powder together does not generate
or retain heat. Indeed, expert testimony indicated that it is
very difficult to ignite thermite and that to do so requires a
very particular type of high intensity external source. Even if
poured on top of each other, and then lit, the particles of red
iron oxide and aluminum powder that make up the thermite
compound may not be in close enough contact with each other to
burn.24,25
B. Exemptions for limited amounts. Even if we were to
assume that thermite is an inflammable solid, nothing at trial
suggested that the weight of the powders in the defendant's
kitchen exceeded the regulatory exemption for individuals
24
There was expert testimony that, when using thermite in
the "field" to cut or weld, a binding agent such as clay,
plastic, or putty is generally used to hold the particles
closely together so that they do not separate; if the individual
particles of the two substances become separated, even in the
same bag or pile, the mixture will not burn.
25
We recognize that, in the right circumstances, thermite
could pose a significant hazard once lit. The Legislature is of
course free to modify the relevant statutes to incorporate
thermite should it deem such modification necessary.
23
possessing only limited amounts of an inflammable solid.26
As the fire safety regulations for using and storing both
explosives and inflammable materials then contained exemptions
for limited amounts of the explosives and inflammable materials
that they regulated, and provided that amounts that fell within
these exemptions may be used and stored without a license or
permit, the weight of the substances seized from the defendant's
kitchen was essential to a determination whether a permit was
required or whether the lack of a permit established the absence
of lawful authority.
There was no evidence at trial concerning the weight of any
of the three bags, other than as to the labeled weights on two
of the bags. Even assuming that the open labeled bags contained
the five and two pounds of materials indicated on their labels,
however, and the entire contents of the three bags of powder
were combined, the resulting seven-pound mixture would appear to
be far below the exempted weight of one hundred pounds for an
inflammable solid. The Commonwealth did not prove that the
powders, combined, exceeded the statutory exemption.
b. Pyrotechnics. Finally, as the Commonwealth notes, the
experts at trial agreed that, in chemical terms, thermite is
26
See 527 Code Mass Regs. § 14.03(2) (exempting, at time of
trial, one hundred pounds of flammable solids from any license
or permit requirement).
24
also considered to be a "pyrotechnic compound" or "composition."
Based on this, the Commonwealth argues that the defendant could
have been found guilty under G. L. c. 148, § 12, which prohibits
the manufacturing of fireworks in a building without a license.
There are two flaws in this argument. First, the defendant was
not charged with having violated that statute. Second, insofar
as the Commonwealth now argues that possession of a pyrotechnic
without a license would separately subject the defendant to
criminal penalties under G. L. c. 266, § 102, we note that
pyrotechnics are excluded from the definition of "explosives"
applicable to that statute. See G. L. c. 266, § 101 ("Explosive
shall not include a pyrotechnic . . .").27
27
For purposes of G. L. c. 266, § 101, and G. L. c. 148,
§ 12, a pyrotechnic is "any commercially manufactured
combustible or explosive composition or manufactured article
designed and prepared for the purpose of producing an audible
effect or a visible display and regulated by chapter 148
including, but not limited to: (i) fireworks, firecrackers;
(ii) flares, fuses and torpedoes, so-called, and similar
signaling devices."
Both Commonwealth and defense experts testified that, while
thermite is defined in chemical terms as a "pyrotechnic
compound" or "composition," it is not a pyrotechnic in the
ordinary understanding of a firework or pyrotechnic. It also
does not meet the statutory definition under G. L. c. 266,
§ 101, or G. L. c. 148, § 12. In those definitions, a
pyrotechnic is designed to create a visible and audible effect
by explosive or combustive burning. Thermite does not do
either. Indeed, the Commonwealth's expert testified that
thermite is used by the military to disable equipment precisely
because it is silent and can be used without disclosing one's
position.
25
3. Conclusion. Because the evidence at trial was not
sufficient to establish every element of the Commonwealth's
case, the defendant's convictions cannot stand. The defendant's
convictions are vacated and set aside. The matter is remanded
to the Superior Court for entry of required findings of not
guilty.
So ordered.
We note also that the statutes regulating pyrotechnics
contain another requirement -- that a pyrotechnic be
commercially fabricated -- which makes the definition
inapplicable to the apparently hand-mixed substance found in the
defendant's kitchen. See G. L. c. 266, § 101; G. L. c. 148,
§ 12.