Appeal from judgments entered in the United States District Court for the Eastern District of New York, Mishler, J., convicting appellants of mail fraud, 18 U.S.C. §§ 1341-42 (1976), conspiracy, 18 U.S.C. § 371 (1976), and use of an explosive to destroy a commerical building, 18 U.S.C. § 844 (1976).
Mansfield, Meskill and Newman, Circuit Judges.
John Katsougrakis and John Hiotis appeal from judgments entered in the United States District Court for the Eastern District of New York, Mishler, J., after a jury trial convicting them of (1) conspiracy to commit mail fraud and to maliciously destroy a business premises by means of an explosive, 18 U.S.C. § 371 (1976) (Count I); (2) aiding, abetting and procuring persons to maliciously damage and destroy a business premises by means of an explosive, 18 U.S.C. § 844(i) (1976) (Count II); (3) two counts of mail fraud, 18 U.S.C. §§ 1341-42 (1976) (Counts III & IV); and (4) aiding, abetting and inducing persons to commit a felony (mail fraud) by means of an explosive, 18 U.S.C. § 844(h) (1976) (Count V).
The convictions obtained under the Explosive Control Act, specifically Counts II and V of the indictment, are reversed in light of our decision in United States v. Gelb, 700 F.2d 875 (2d Cir. 1983). The convictions on the remaining counts are affirmed.
Katsougrakis and Hiotis were co-owners of the stock in Mousaka Trading Corporation (MTC). MTC owned and operated two New York restaurants, one located in Great Neck and the other in Westbury, both under the trade name "Kings Villa Diner." The Westbury diner operated at a profit whereas the Great Neck diner sustained serious losses during 1979-81.*fn1 In fact, tax records introduced at trial revealed that liens had been levied against the Great Neck Kings Villa by the State Tax Commission, the New York State Unemployment Insurance Division and the federal government to recover substantial unpaid tax liability. When appellants were unable to sell the Great Neck diner, they resorted to arson.
Steven Karagiannis, who worked as a cook at the Westbury Kings Villa for five or six months during 1981, testified at trial that Katsougrakis and Hiotis approached him in July 1981 and inquired whether he knew any individuals who would be willing to set fire to the Great Neck diner. Although Karagiannis was unable to help them and in fact refused to discuss the scheme further, appellants ultimately did locate two individuals -- Kyriakos "Charlie" Chrisanthou and John Kynegos -- who were willing and able to carry out the arson. After several meetings, the conspirators planned the arson for the early morning hours of October 4, 1981. Appellants agreed to pay Chrisanthou and Kynegos $3,000 each for their efforts, with $800 to be paid in advance.
On October 4, Chrisanthou and Kynegos arrived at the diner at approximately 3:00 a.m., entered through the back door using a key provided by appellants and spread uncontained gasoline throughout the diner. After igniting the gasoline, Chrisanthou and Kynegos were unable to escape the inferno. Although flames were doused shortly thereafter by Nassau County firemen, the damage had already been done -- both men died several days later in the Nassau County Hospital.
Subsequent investigations by the Nassau County Fire Marshal's office, the Nassau County Police Department and a private firm commissioned by the insurer of the Kings Villa Diner confirmed that the fire was intentionally set by use of uncontained gasoline. The police also obtained a statement from Chrisanthou's wife Rose Marie in which she related that (1) Chrisanthou told her two weeks before the fire that he had agreed to set fire to a diner and that he showed her the Kings Villa business card; (2) two days before the fire, October 2, 1981, she drove her husband and Kynegos to a coffee shop in Astoria where they met with appellant Katsougrakis; and (3) on October 3, 1981, less than one day before the arson, Chrisanthou stated to her that he had just returned from a diner on Old Country Road (where Kings Villa is located) and had received the $800 advance.
Katsougrakis and Hiotis were indicted and, after a jury trial, were convicted on each count in the indictment. Judge Mishler sentenced appellants to five year terms of imprisonment on Counts I and V, sentences to run concurrently. They were sentenced to a fifteen year prison term on Count II and to five year terms on both Counts III and IV, sentences also to run concurrently. Execution of sentence was suspended on Counts II, III and IV and appellants were placed on probation for a term of five years, with the probationary period scheduled to commence after appellants had served prison terms imposed on Counts I and V. This appeal followed.
Section 1102 of the Explosive Control Act, 18 U.S.C. § 844 (1976) (Act),*fn2 makes it unlawful to maliciously damage or destroy a commercial premises by means of an "explosive." "Explosive" is defined in the penal section of the Act to include:
Gunpowders, powders used for blasting, all forms of high explosives, blasting materials, 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, 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.
18 U.S.C. § 844(j) (1976) (emphasis added). An explosive is further defined as:
(5) The term "explosive or incendiary device" means (A) dynamite and all other forms of high explosives, (B) any explosive bomb, grenade, missile, or similar device, and (C) any incendiary bomb or grenade, fire bomb, or similar device, including any device which (i) consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and (ii) can be carried or thrown by one individual acting alone.
18 U.S.C. § 232(5) (1976). Appellants claim that the substance used to set fire to the Kings Villa Diner -- uncontained gasoline -- is not an "explosive" within the meaning of the Act and cite as support for that proposition our recent decision in United States v. Gelb, 700 F.2d 875 (2d Cir. 1983), which was decided after these convictions.
In Gelb, we decided that arson committed by use of uncontained gasoline is not punishable under the Explosive Control Act. We observed that the Act was intended to accomplish an important, albeit limited, purpose:
The legislative history of the Act speaks of the dangers posed by subversive groups in the society. The perceived threat lay not so much in ideology or political objective, but rather focused on the alarming trend during the late 1960's when "selective bombing" ...