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United States v. Durham

decided: August 5, 1987.

UNITED STATES OF AMERICA, APPELLEE,
v.
BENJAMIN DURHAM AND WARREN COOK, DEFENDANTS-APPELLANTS



Appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York (Bramwell, J.) convicting appellants after a jury trial of conspiracy to maliciously damage by means of fire a building used in an activity affecting interstate commerce, in violation of 18 U.S.C. § 371.

Oakes, Newman and Pierce, Circuit Judges.

Author: Pierce

PIERCE, Circuit Judge:

Appellants, Benjamin Durham and Warren Cook, appeal from judgments of conviction entered in the United States District Court for the Eastern District of New York, Henry Bramwell, Judge, convicting them, after a jury trial, of conspiracy to maliciously damage by means of fire a building used in an activity affecting interstate commerce, in violation of 18 U.S.C. § 371. Because the district court failed to charge the jury on the defense theory, we reverse and remand for a new trial.

I.

This case involves an agreement reached between appellants and undercover agents to burn down a building in Staten Island, New York. We briefly summarize the evidence pertinent to this appeal.

On January 13, 1986, a confidential informant introduced Agent Kenneth Pribil of the Bureau of Alcohol, Tobacco and Firearms ("BATF") to appellant, Benjamin Durham. Durham, who was under the impression that Agent Pribil was a corrupt attorney for organized crime, pointed to a building on fire across the street and said "if you need anything like that done, I'm your man." Durham added that he and a friend had committed arson in the past and were knowledgeable about various methods used to create fires for insurance purposes, including electrical fires. Pribil responded that he was not sure if he was interested in Durham's offer but would keep it in mind. At the conclusion of the meeting, Pribil and Durham exchanged telephone numbers.

Following a series of telephone conversations between Agent Pribil and Durham, the two met on February 12, 1986 at the Galaxy Diner in Brooklyn. At the meeting, Pribil introduced a BATF agent, Allan MacDonald, who was posing as the owner of a building he wanted burned. MacDonald described his building as one with a wood frame, containing a bar, three rental establishments, and a second story apartment. Responding to MacDonald's questions about his proposed techniques for setting the fire, Durham said that he intended to use seven gallons of paint thinner, poured on the walls and ceiling, as an accelerant. Durham stated that paint thinner was less detectable and less volatile than kerosene. The parties then agreed that if Durham committed the arson, he would be paid $7,000-$2,000 in advance and $5,000 upon completion of the job. Durham stated that he would commit himself to do the job only after he had consulted his partner, whom he identified as "Jessie," and had inspected the premises.

On February 18, Durham informed Agent Pribil by telephone that he had a new partner, whom he identified as appellant Warren Cook, and assured Pribil that Cook had experience in setting fires. Durham also advised Pribil that he was having trouble locating paint thinner.

The next day, February 19, Durham and Cook met with Agent Pribil at the Galaxy Diner in Brooklyn. After some discussion about the job and the price, the three traveled to the proposed arson site, the Main Bar and Grill, on Staten Island. Durham and Cook first inspected the outside of the building and indicated that they would be able to burn it. They then entered the bar and met with Agent MacDonald, who continued to pose as the bar owner. MacDonald took appellants on a tour of the bar, including the top of the building, as well as the boiler room. After this tour, Durham again stated that they would be able to burn the building and discussed the method they intended to use. Specifically, Durham stated that they would apply ten gallons of paint thinner starting at the roof and working down the walls, and would then apply the accelerant from the rear to the front of the bar. Cook explained that paint thinner was preferred as an accelerant over kerosene because the latter was more detectable. For an additional $2,000, appellants agreed to burn the bar while a tenant, whom MacDonald said he wanted killed, was in the upstairs apartment. After some further discussion finalizing the agreement and setting the date for the fire for the next day, MacDonald gave Durham $500 and Cook the key to the bar. As appellants were about to leave, the agents placed them under arrest.

Appellants were charged in a two-count indictment with conspiracy to maliciously damage by means of fire a building used in an activity affecting interstate commerce, in violation of 18 U.S.C. § 371, and with the substantive count of attempt to commit this crime in violation of 18 U.S.C. §§ 844(i) and 2. After a jury trial, appellants were acquitted of the substantive attempt count, but convicted of the conspiracy count. This appeal followed.

II.

Appellants contend that the district court erred by not incorporating the defense theory in its charge to the jury. At trial, appellant Cook testified in his own defense that it was his and Durham's intention to pretend to be arsonists and to "dupe" the agents out of the $2,000 advance money by agreeing to burn down a building. However, according to Cook, both men agreed that they they would not set fire to the building. Cook further explained that the reason they never actually bought paint thinner was because they never intended to commit arson.

At a charge conference and by later written submission, defense counsel requested that the district judge's charge to the jury reflect the defense theory. Specifically, counsel ...


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