Massachusetts Supreme Judicial Court Reverses Man’s Conviction for Possessing Ingredients to Manufacture an Incendiary Device

The Massachusetts Supreme Judicial Court yesterday reversed the convictions of a Worcester man who was accused of possessing ingredients with the intent to manufacture an incendiary device.  The name of the case is Commonwealth v. Aldana. 

On October 15, 2013, Worcester police officers traveled to the defendant’s apartment to arrest him on a warrant charging disorderly conduct.  When the cops arrived, they knocked on the defendant’s door and received no answer.  However, they could hear movement inside of the apartment along with the sounds of breaking glass, and as a result decided to break down the door and force entry.  [As an aside, the cops’ decision to break down the door in this situation seems insane.  The defendant argued in the trial court and again at the Supreme Judicial Court that the cops’ entry into his apartment was unlawful but the SJC didn’t decide the issue given that the defendant’s convictions were being reversed anyway.]  The police officers immediately arrested the defendant and looked into the kitchen, where they saw two labeled bags of powder and a third unlabeled bag of powder.  One bag was labeled “aluminum powder” and the other was labeled “red iron oxide.”  Not knowing whether the powders were dangerous, the cops sought assistance from a state police bomb squad technician, who arrived and took custody of the substances.  The technician destroyed the majority of the powders by burning them but kept large enough samples to confirm they were, in fact, aluminum powder, red iron oxide, and a mixture of the two substances.  When aluminum powder and iron oxide are combined, they can create a substance called thermite.  Thermite is a powder that, when ignited, will burn at an extremely high temperature.  It is used by the military to destroy old equipment and can also be used to cut metal and for welding purposes (including underwater welding, as the flame cannot be extinguished by water).  Once the state police confirmed the nature of the powders, the defendant was indicted.  The defendant waived his right to a jury trial and a superior court judge found him guilty of two counts of possessing substances with intent to make an incendiary device.  The SJC reversed.

Although the fact pattern was interesting, the Court’s decision was a boring examination of the various licensing requirements that the defendant would have needed in order to possess the substances in his apartment.  One of the elements of the indictments was that the defendant lacked the legal authority to possess the substances.  It appears from the SJC’s opinion that the prosecution confused “explosive device” with “incendiary device.”  An incendiary device creates fire, whereas an explosive device creates an explosion.  The SJC pointed out that all of the regulations that were addressed during the defendant’s trial dealt with explosive devices, not incendiary devices.  Ultimately, the Court concluded the Commonwealth failed to prove the defendant needed to have obtained a permit to possess the powders that were found in his kitchen.  Accordingly, the defendant’s convictions will be vacated and not guilty findings will be entered.