Commonwealth v. Aldana, 477 Mass. 790

Background

Worcester police executed a default-warrant arrest at Aldana's apartment and forced entry after hearing movement and breaking glass; officers observed three bags of powders in the kitchen: one labeled “aluminum powder,” one labeled “red iron oxide,” and one unlabeled containing a red‑brown powder.
An officer performed an Internet search and reported that aluminum plus red iron oxide can produce thermite; police contacted ATF, state bomb squad, and fire department; samples were taken and remaining powders were later combined and burned remotely.
State crime lab testing showed the three samples were aluminum, red iron oxide, and a mixture; experts agreed thermite can be made from those powders, burns at very high temperature, is difficult to ignite, and is not explosive but an incendiary/pyrotechnic-style composition.
Fire department lieutenant testified that permitting/licensing authority derived from fire code regulations governing explosives (527 C.M.R. §13.00) and asserted no city permit existed for Aldana; he did not identify a regulatory provision specifically applying to thermite or its components.
Trial judge convicted Aldana on two counts under G. L. c. 266, § 102(a) (possession of ingredients to make incendiary device with intent) but acquitted on § 102(c); judge did not make findings that Aldana lacked lawful authority to possess the powders or thermite.
Supreme Judicial Court held the evidence was insufficient to prove Aldana lacked lawful authority to possess the powders/thermite because the Commonwealth failed to prove a required permit/license applied or that exempt quantity limits were exceeded; convictions vacated and remanded for findings of not guilty.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence established absence of lawful authority to possess powders/thermite under G. L. c. 266, § 102(a)	Commonwealth: thermite and its components are regulated by fire/explosives rules; Aldana lacked permits	Aldana: Commonwealth failed to prove a permit/license was required or that exempt quantity limits were exceeded	Held: Insufficient evidence to prove absence of lawful authority; Commonwealth failed to show applicable regulatory requirement or that exemption limits were exceeded
Whether thermite is an “explosive” subject to §13 regulations	Commonwealth: fire dept testimony tied regulation §13 to thermite via incorporated federal list	Defense: experts showed thermite is incendiary/inflammable, not explosive; §13 definitions therefore inapplicable	Held: Thermite is not proven to be an “explosive” under the regulations; §13 did not demonstrably apply
Whether inflammable/inflammables regulations (§14.00) would require a permit	Commonwealth: could rely on inflammables rules (pyrotechnic/inflammable solids)	Defense: §14.00 was not introduced at trial; no proof thermite met "flammable solid" definition or that amounts exceeded exemption	Held: Even assuming §14.00 applied, trial evidence did not prove thermite met definition or that amounts exceeded the 100‑lb exemption
Whether thermite/mixture was ignitable (relevance to device definition)	Commonwealth: combined powders burned when later mixed and ignited	Defense: mixture as seized may not have had correct ratios/contacts; lab Bunsen burner test did not ignite; judge acquitted on §102(c) for lack of proof of ignitability	Held: Judge reasonably found mixture’s ignitability in the kitchen was not proven beyond a reasonable doubt (acquittal on §102(c)), but main reversal rested on lack of proof of unlawful possession

Key Cases Cited

Commonwealth v. Cabral, 443 Mass. 171 (establishing Commonwealth must prove absence of lawful authority beyond a reasonable doubt)
Commonwealth v. Ferola, 72 Mass. App. Ct. 170 (party must actually prove regulatory designation when relied on at trial)
Commonwealth v. Loadholt, 456 Mass. 411 (distinguishing items designed as weapons from items that merely function as such)
Commonwealth v. Mendes, 44 Mass. App. Ct. 903 (distinguishing design-purpose from functional outcome)
United States v. Hammond, 371 F.3d 776 (federal analogy on requiring a "plus" factor to show an object is a weapon/destructive device)
United States v. York, 600 F.3d 347 (contrast where item like a Molotov cocktail was deemed designed as weapon)
Commonwealth v. Finegan, 45 Mass. App. Ct. 921 (procedural requirement for judicial notice at trial)
Ivey v. Commissioner of Correction, 88 Mass. App. Ct. 18 (interpretation of regulations is a question of law reviewed de novo)
Town Fair Tire Ctrs., Inc. v. Commissioner of Revenue, 454 Mass. 601 (deference and construction rules for regulations)
Borden, Inc. v. Commissioner of Public Health, 388 Mass. 707 (regulation has force of law; interpretive principles)