Explosion Leads to Unusual Murder Trial

FONTANA —  Dick’s Auto Wreckers is one of a dozen dismantling and scrap metal yards along gritty Whittram Avenue, but it has remained closed for more than a year, ever since Martin Mendoza was killed for just doing his job.

Mendoza, 22, had worked at Dick’s for more than two years--dutifully sending money to his family in Mexico. Last year, he put a blowtorch to what was believed to be scrap metal that came from Ft. Irwin, the Army’s huge desert training base near Barstow.

It turned out to be a live 105-millimeter antitank shell, and its blast--equivalent to more than two pounds of TNT--killed him instantly.

The tragedy has led to a highly unusual murder prosecution, in which a critical ruling is due this week.

The shell, of course, should never have left the military base. It was among 1.4 million pounds of scrap metal that Dick’s had bought from the Department of Defense, so it could separate the aluminum and steel to sell to recyclers.

The 105-millimeter shell wasn’t the only live ordnance found at Dick’s. After the March 18, 1997 incident, state and military investigators cautiously combed through the heap and found 55 more military pieces deemed “explosive,” some capable of causing injury or death. Among the dangerous items was a live 90-millimeter round that Mendoza had not yet gotten to.

How the ordnance, small and large, was able to get off the base has been the subject of military review, civil lawsuits and, in the most dramatic case, the criminal prosecution.

The San Bernardino County district attorney’s office has charged a civilian employee at Ft. Irwin with second-degree murder for Mendoza’s death.

On Thursday, a San Bernardino County judge is scheduled to decide whether the man, Timothy Collister, a Vietnam veteran and explosives expert, should stand trial.

The Army hires civilian companies to scour its live-fire ranges for scrap metal that can be safely sold to salvagers. Collister, 56, was in charge of that operation at Ft. Irwin, and it was allegedly under his watch that the 105-millimeter shell--and the other ordnance--slipped off the base and into Dick’s scrap yard in industrial Fontana.

“We felt that within the management [of scrap metal removal off base], you had one person who had responsibility, one person who was in control of the yard and who signed the certification that the scrap metal was safe,” Deputy Dist. Atty. Charles Umeda said. That man, he said, was Collister, “and the buck stopped with him.”

Collister’s attorney, James Blatt, said his client is being unfairly singled out for a process that failed partly for bureaucratic reasons.

“It’s an outrage that of all the individuals involved in this process, including generals to the top brass at the Department of Defense, Mr. Collister was selected as the scapegoat, to take the fall for this tragic incident,” Blatt said.

“Here’s a man who has served 26 years in the military, had numerous commendations, searched for missing pilots in Laos and Cambodia during the Vietnam War, dismantled mine fields and who has received the highest accolades from every civilian employer,” Blatt said. “It’s a tragedy that Mr. Mendoza is dead, but there are plenty of officials who can share the blame. It’s not second-degree murder.”

Among the issues, Blatt said, is whether Collister was specifically required by contract to personally inspect every piece of scrap metal leaving Ft. Irwin, and whether Collister’s certification that the material is safe is meant to be absolute, or simply reflect the best of his knowledge.

Umeda, the prosecutor, said he may reduce the charge to involuntary manslaughter when he and Blatt go before San Bernardino Superior Court Judge Michael Smith on Thursday. Smith already has conducted the preliminary hearing on whether Collister should be held for trial on second-degree murder charges, but he delayed his decision to consider additional legal arguments.

Attorneys and government agencies say they don’t remember any other case in which a civilian has been killed by military ordnance off a base. They also say that it is extremely rare for second-degree murder charges to be filed in industrial accidents.

The risk of live munitions leaving military bases was not isolated to this incident, it turned out. A subsequent Department of Defense investigation revealed that from 1995 to mid-April 1997, there were 62 cases of explosive or dangerous devices being mistakenly sold to the public, ranging from bombs to bullets.

At issue in this case, said Umeda, is to what degree Collister exhibited negligence in allowing the shell to leave Ft. Irwin. A second-degree murder charge requires a finding that the defendant showed a deliberate and reckless disregard for human life. Involuntary manslaughter is charged when there is a conscious indifference to the consequences of the action.

A second-degree murder conviction carries a prison sentence of 15 years to life; an involuntary manslaughter conviction is punishable by two to four years in prison, or probation.

Mysterious Shell in a Scrap Pile

No one can accurately track the history of the unexploded 105-millimeter antitank round that left the Army’s sprawling combat training center at Ft. Irwin.

The 25-pound, two-foot-long round--a huge black bullet--apparently had been laying on the ground, maybe encrusted in gritty sand, slowly rusting, for perhaps 20 years.

It was fired from an M-48 tank, the army’s main battle wagon until the early 1980s, as it rumbled on maneuvers across the 1,000-square-mile base, the largest in the nation for live-fire exercises.

The shell can travel up to five miles and is supposed to explode on impact. But this one apparently just plowed harmlessly into the desert floor, where it lay dormant but potentially lethal.

Nobody knows how many soldiers trekked near it or how many tanks roared past it over the years. It was finally spotted, sometime between 1993 and 1996, by civilian contractors who are under contract to scour the live-fire ranges, flagging unexploded ordnance for later detonation and retrieving benign, scrap metal--called “range residue” for temporary storage on base.

The material is eventually sold in bulk as military surplus to scrap dealers.

No one knows when this particular round was spotted, or by whom. It should have been identified as unexploded ordnance. And, if there was any question, a second person in the field, more expert on explosives, should have inspected it before it was moved.

In this case, the shell was not recognized for what it was, and was placed aboard a truck--along with thousands of pounds of other scrap--and carried to the storage yard on base, authorities surmise.

Allied Technology Group was the company under contract to clear the ranges, and it subcontracted with Virginia-based Octagon Inc. to assist. Collister was an employee of Octagon.

When the truck--and others like it roaming the ranges--delivered their loads to the storage yard at day’s end, the material was supposed to again be closely inspected before being heaped onto huge, growing piles of scrap.

The last pile was shipped off base in 1993, and a new pile of scrap was started. Collister was hired in mid-1994--after the new pile was established--and by late 1996 it had grown to more than 1 million pounds, according to court documents. Somewhere in the pile rested the 25-pound unexploded shell.

The scrap pile was put up for auction by the military’s surplus sales office, and interested buyers were invited to inspect it at Ft. Irwin.

Harry Hottel, owner of Dick’s Auto Wreckers--a business started by his father, but which he converted to a scrap metal business--liked what he saw and bid $11,495 for the stuff in late 1996. It was the first time Hottel had bought military scrap.

He then spent four hours meeting with Army and civilian officials at Ft. Irwin “to gain an understanding of what he was buying,” said his attorney, Richard Marca. “He was repeatedly reassured of the many safety steps that were put in place so he knew he was truly buying just scrap,” Marca said.

Satisfied, Hottel hired a trucking company to begin shipping the scrap to his small Fontana yard. It would take more than 30 loads. The material was loaded in bulk with a huge magnet.

Collister and other supervisors stood nearby during the loading, but it was unclear what level of attention they were paying, according to court testimony. Collister was available for direct inspection of questionable material, but he had to stand a safe distance from the trucks because of the danger of falling material, his attorney said.

As each truck was loaded, Collister would sign a form that stated: “I certify that the item(s) identified hereon have been inspected by me and, to my knowledge, contain no material of an explosive/dangerous nature.”

Collister had followed the terms of the contract, his attorney said in court briefs. In signing the safety certificate, Collister was relying partly on the range inspections done by his workers, the attorney said. Indeed, Collister may have been sick or on vacation the day the 105-millimeter shell was brought into the yard, the attorney said.

Moreover, Blatt said, the Army was fully aware of how the inspections were conducted--including the bulk loading onto the trucks--and no objections were voiced.

Some employees testified that they previously had found live ordnance in the pile that Hottel was buying, including a live 90-millimeter round--and that although it was removed, there was no search of the pile for other live ordnance. It would have been costly and time-consuming, one employee testified.

Umeda, the prosecutor, bristles at that testimony. “Despite warning signs that live material was getting into the pile,” Umeda said, “it was never reinspected. If it’s your duty to make sure the material is safe, to point the finger at the Army and say, ‘You didn’t tell us to do it’ isn’t much of an excuse.”

Nobody knows what day the load containing the 105-millimeter shell arrived at Dick’s. On March 18, 1997, a worker pulled the round from a pile of scrap and put it in front of Mendoza. He was using a blowtorch to cut the round lengthwise in order to separate the steel body from the aluminum portion, according to court testimony.

Minutes later, there was a horrific bang, and Mendoza was dead. Three other employees were injured and had to be hospitalized.

Search Costs $1 Million

Dick’s Auto Wreckers was closed for months as Army Corps of Engineers technicians searched the scrap from Ft. Irwin, piece by piece, looking for more ordnance. They found at least 55 other explosive devices. The search cost more than $1 million.

The state’s Division of Occupational Safety and Health investigated the death, and concluded that Dick’s Auto Wreckers was not liable for Mendoza’s death.

But the business has remained closed.

Hottel’s customers are wary of doing business with him, said his attorney, Marca. “His business became paralyzed and has not yet been in the position to reopen,” Marca said. “He’s angry that this tragedy happened; it took a life and cost him his livelihood.”

Hottel has filed civil action against Allied Technology Group, Octagon and Collister, and may sue the Department of Defense, Marca said.

Mendoza’s family--his mother and four siblings in Mexico--has filed a wrongful death lawsuit.

The Department of Defense has acknowledged its own role in the tragedy, according to a report by the department’s inspector general, its in-house watchdog.

Department controls for the disposal of explosives and other dangerous items “were ineffective,” the report concluded. “As a result, the public was sold or had access to either discarded live [munitions] or residue that had not been properly certified as inert.”

It blamed inadequate management controls by the department’s Defense Reutilization Marketing Service, which sells military surplus and scrap.

In fact, overall Defense Department policies and procedures for disposal contracts were inadequate, with different levels of safety and oversight at various installations, the investigation found.

The military, according to the inspector general’s review, needs to improve policies and procedures for the cleanup of its ranges. Perhaps, as one military officer suggested to the inspector general, all range residue should be considered dangerous, period, and not sold to the public.