Opinion
CR 00-0431 PHX SMM), CR 01-0152 PHX SMM
April 24, 2001.
ORDER
Counsel for the Government and defense counsel make strong arguments, respectively, for the continued detention or release of the Defendant. The Government argues, among other things, that, if released, the Defendant, now diagnosed with a terminal disease, "has nothing to lose by settling any old grudges, or if medical treatment becomes too painful or difficult that he would prefer to exit this world by use of a firearm at his own hand or engage in `suicide by cop.'" The prosecutor argues that, given his history of illegal possession of firearms, until such time as a medical professional indicates that the Defendant's medical condition is such that he is physically incapable of handling a firearm, he should remain detained as a danger to the community and Deputy Sheriff Glass. The Government has also sought the detention of the Defendant on the grounds that he is a serious flight risk.
See, page 9, Government's Memorandum of Law Regarding Detention, filed April 16, 2001.
The Court notes in passing that the Government has not argued that a basis exists to detain the Defendant due to his courtroom threat and/or intimidation of Deputy Sheriff Glass who may be a prospective witness. See, 18 U.S.C. §(f)(2)(B).
Defense counsel, on the other hand, argues that the Defendant's sister, Margo Bowman, now willing to care for him and act as third party custodian, has found a place for the Defendant to live out his shortened life expectancy. She has secured an apartment right across the street from her residence which would permit her to provide for his meals and other living needs, to provide him transportation for medical and other legitimate purposes, and to supervise him to ensure compliance with his conditions of release. Counsel argues that his client is a dying man and should be given the normal opportunity to make amends with his family and die in peace rather than in a federal detention facility when he is harmless and a danger to no one.
After considering all the evidence, the arguments of counsel, the controlling and persuasive authorities on the issues sub judice and all the factors set forth in 18 U.S.C. § 3142(g), the Court FINDS the following to be true by a preponderance of the evidence:
1. Since the Defendant was initially indicted in CR00 — 0431 PHX SMM on May 2, 2000 and the first detention hearing held before the undersigned on July 13, 2000, the Defendant has been charged by Superseding Indictment with, among others, three counts of Possession of a Firearm by a Convicted Felon [ 18 U.S.C. § 922 (g)(1)]. A single count Indictment of Possession of an Unregistered Firearm, to wit: a sawed-off shotgun [ 26 U.S.C. § 5861(d)] was also returned against the Defendant on February 22, 2001 in CR 01-0152 PHX SMM. All of these charges are felonies.
The initial Indictment was returned on two Counts of Possession of a Firearm by a Convicted Felon [ 18 U.S.C. § 922(g)(1)].
2. That the Government agrees, and this Court concurs, that there has been a material change in circumstances since Defendant's detention hearing on July 13, 2000 to warrant reconsideration of detention in CR00 — 0431 PHX SMM which hearing the Court has combined with Defendant's detention hearing on the more recent Indictment. Specifically, Defendant has been diagnosed with terminal cancer for which he underwent surgical resection of a mass in the left temporal area. He is actively undergoing medical treatment at the Tucson Medical Center in Tucson, Arizona while in custody. This disease was not known to the Defendant at the time of the first detention hearing herein and has a material bearing on the issue of release.
Title 18 U.S.C. § 3142(f) provides in part: "The [detention] hearing may be reopened . . . at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community."
Per the medical oncology consultation report by Don W. Hill, dated March 23, 2001, Defendant has "a high grade malignant fibrous histiocytoma, which is an aggressive sarcoma." Dr. Hill also indicates in his report that Defendant "has a lethal disease. He will relapse and die from systemic disease, probably in the very near future."
3. Although not specifically addressed by the Ninth Circuit to date, the language of the Bail Reform Act, and persuasive authority from the 5th Circuit, do not permit the Government to seek detention on the sole basis that a defendant is a danger to the safety of any other person or the community unless the crime charged is a "crime of violence" as technically defined in the Bail Reform Act. See, 18 U.S.C. § 3142 (f).
Title 18 U.S.C. § 3142(f) provides:
"Detention hearing — The judicial officer shall hold a hearing to determine whether any condition . . . will reasonably assure the appearance of the person as required and the safety of any other person and the community —
(1) upon motion of the attorney for the Government, in a case that involves —
(A) a crime of violence;" (Emphasis added).
See, United States v. Byrd, 969 F.2d 106 (1992).
4. A "crime of violence" is defined in 18 U.S.C. § 3156(a)(4) for purposes of the Bail Reform Act as follows:
(a) As used in sections 3141 — 3150 of this chapter —
* * * * *
"(4) the term crime of violence means —
(A) an offense that has an element of the offense the use, attempted use, or threated use of physical force against the person or property of another;
(B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense;
(C) any other felony under chapter 109A [ 18 U.S.C.A § 2241 et seq.] 110 [ 18 U.S.C.A § 2251 et seq.], or 117 [ 18 U.S.C.A. § 2421 et seq.]" (Emphasis added).
5. The Ninth Circuit Court of Appeals has consistently held that the crime of Unlawful Possession of a Firearm by a Felon is not a "crime of violence" for purposes of sentencing. See, United States v. Sahakian, 965 F.2d 740 (9th Cir. 1992); United States v. Canon, 993 F.2d 1439 (9th Cir. 1993); United States v. Cantu, 12 F.3d 1506 (9th Cir. 1993); United States v. Stephens, 237 F.3d 1031 (9th Cir. 2001).
Defense counsel did not cite any of these 9th Circuit cases to the Court at the prior hearing. In fact, he erroneously advised the Court that the 9th Circuit "has not ruled on the issue." See, page 6, line 11, transcript of 6/22/00. He did, however, direct the Court to an unpublished 6th Circuit opinion, United States v. Hardon, 149 F.3d 1185 (6th Cir. 1998) (Possession of a firearm and ammunition by a felon in violation of 18 U.S.C. § 922(g)(1), by their nature, do not involve a substantial risk; therefore, it is not a crime of violence).
6. The Ninth Circuit Court of Appeals has yet to establish or consider whether the crimes of Unlawful Possession of a Firearm by a Felon and/or Possession of an Unregistered Firearm, to wit: a sawed-off shotgun, are "crimes of violence" for purposes of release or detention pursuant to the Bail Reform Act ( 18 U.S.C. § 3142).
7. At least one District Court in the Ninth Circuit has held that for purposes of the Bail Reform Act, the crime of possession of an unregistered firearm is, by its very nature, so inherently dangerous as to qualify as a "crime of violence." See, United States v. Spires, 755 F. Supp. 890 (D.C. Cal. 1991).
8. The Ninth Circuit has held that possession of an unregistered sawed-off shotgun is a "crime of violence" for purposes of sentencing. In United States v. Hayes, 7 F.3d 144, 145 (9th Cir. 1993), the Court stated:
". . . Because the statutory definition of Hayes' unregistered shotgun conviction does not involve the use, attempted use or threatened use of physical force against another, we focus solely on whether the charged conduct presented a serious potential risk of physical injury to another. See [United States v.]Young, 990 F.2d [469, 471, 9 Cir. 1993].
We conclude that in Hayes' case it does. As we said in United States v. Dunn, 946 F.2d 615, 621 (9th Cir.), cert. denied, 502 U.S. 950, 112 S.Ct. 401, 116 L.Ed.2d 350 (1991), and United States v. Huffhines, 967 F.2d 314, 321 (9th Cir. 1992); sawed-off shotguns are inherently dangerous, lack usefulness except for violent and criminal purposes and their possession involves the substantial risk of improper physical force. These attributes led Congress to require registration of these weapons. Huffhines, 967 F.2d at 321.
We hold that the conduct charged in the unregistered shotgun count of Hayes' indictment "presents a serious potential risk of physical injury to another." The district court found correctly that Hayes was convicted of a crime of violence for career offender purposes." (Emphasis added).
9. This Court adopts, as if fully set forth herein, the rational as the better-reasoned decision and slim majority rule that the crime of Possession of a Firearm by a Convicted Felon for purposes of the Bail Reform Act is a "crime of violence" as held and discussed in United States v. Dillard, 214 F.3d 88 (2d Cir. 2000). The Court hereby expressly rejects the minority view found in United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999) and other cases outside the Ninth Circuit.
See, United States v. Spry, 76 F. Supp.2d 719, 720-722(S.D.W. Va. 1999); United States v. Kirkland, 1999 WL 329702, at 2-3 (E.D.La. 1999); United States v. Chappelle, 51 F. Supp.2d 703, 704-05 (E.D.Va. 1999); United States v. Butler, 165 F.R.D. 68, 71-72 (N.D.Ohio. 1996); United States v. Trammel, 922 F. Supp. 527, 530-31 (N.D.Okla. 1995); United States v. Sloan, 820 F. Supp. 1133, 1138-41(S.D.Ind. 1993); United States v. Aiken, 775 F. Supp. 855, 856-57 (D.Md. 1991); United States v. Phillips, 732 F. Supp. 255, 262-63 (D.Mass. 1990); United States v. Johnson, 704 F. Supp. 1398, 1399-1401 (E.D.Mich. 1988).
See, United States v. Shano, 955 F.2d 291, 295 (5th Cir. 1992); United States v. Johnson, 953 F.2d 110 (4th Cir. 1992); United States v. Hardon, 6 F. Supp.2d 673, 676 (W.D.Mich.), rev'd, 149 F.3d 1185 (6th Cir. 1998) (unpublished).
In addition to the other reasons outlined in Dillard, supra, which will not be repeated herein, the term "crime of violence" should have a broader scope for public policy purposes in the pretrial detention context than it does with respect to sentencing issues because 1) there may be a greater risk to the community at the detention or beginning stage of the criminal process than at the sentencing stage as less is usually known about a defendant at this time, and 2) the Government is precluded by the language of 18 U.S.C. § 3142 from seeking detention on the basis that a defendant is a danger unless the charged crime is a "crime of violence" as defined in 18 U.S.C. § 3156(a)(4). In other words, absent this broader meaning of "crime of violence" or another reason existing to detain a defendant, i.e. a serious flight risk, the crime charged carries a maximum sentence of life imprisonment or death, the defendant has been convicted of two or more crimes of violence, or that the defendant will obstruct justice or threaten, injure or intimidate a prospective witness or juror, a defendant must be released no matter how dangerous that defendant is or may be. If a broader scope is permitted, the Court can then proceed with a detention hearing, requiring the Government to prove on a case-by-case basis by a clear and convincing standard whether the particular person before it is a danger to the community or a particular individual.
10. The Court concludes that the crime of Possession of an Unregistered Fiearm, to wit: a sawed-off shotgun, is also a "crime of violence" for purposes of the Bail Reform Act. See, United States v. Hayes, 7 F.3d 144, 145 (9th Cir. 1993).
11. That the Defendant is 64 years old, a resident of Arizona since 1964, has resided at one address (1026 So. 29 Ave, Phoenix) for approximately 20 years, is hearing impaired, is receiving Social Security Disability payments, has significant family ties to the Phoenix community and is dying of cancer.
12. That the Defendant is not likely physically able to flee and become a fugitive from justice but he does currently have the strength and mental capacity to physically possess and discharge a firearm.
13. That there is no evidence presented that the Defendant voluntarily failed to appear for any of his prior criminal court proceedings except for some failures to appear on traffic matters over thirty (30) years ago.
14. That prior to his arrest on the subject charges on June 19, 2000 and subsequent detention, Defendant had a significant illicit drug addiction as he "consumes methamphetamine daily or whenever it can be obtained" which makes the Defendant likely more unreliable and more untrustworthy. Defendant does not appear to be an abuser of alcohol.
See, U.S. Pretrial Services' Supplemental Report, dated June 21, 2000.
15. That the Defendant was convicted in 1990 after a jury trial in state court of Aggravated Assault, a Class 3 Felony and dangerous offense, and served a prison term in the Arizona Department of Corrections.
According to the state's presentence report (Exhibit 1), "[o]n January 4, 1990, at approximately 12:35 p.m., Officer Kohl of the Phoenix Police Department responded to an emergency call of a man with a gun at 6400 W. Van Buren. There he was contacted by witness Larry Dees and suspect Earl Stratton. Stratton was upset because his daughter, Crystal, was missing. Stratton was accusing Dees and victim Adam Brady of hiding her. Brady and Dees were riding their bikes while Stratton started chasing them on his motorcycle. The boys sought refuge on private property off of Van Buren and Stratton followed. Stratton told Dees to call the police, but Dees said there was no phone there. Dees said that Stratton reached down and took a pistol out of his waistband. Stratton pointed the pistol at Brady and said, `If you take one more step, I'm going to kill you.' Stratton also said, `I'm going to kill you if you don't tell me where by (sic) daughter is.' Dees went to the phone at a nearby Circle K where the police came and arrested suspect Stratton."
This crime is a "crime of violence" under federal law.
16. That Defendant was involved in a confrontation on April 13, 1999 in his mobile home in Phoenix that led to the fatal shooting of Pete Rocha by the Defendant, who was obviously in possession of a firearm at the time. The decedent, who was shot five times by the Defendant, was in possession of a .30-.30 cal. rifle and allegedly raised it to his shoulder and pointed the rifle at the Defendant when the Defendant commenced firing. The Maricopa County Attorney's Office declined to prosecute the Defendant for this incident for the likely reason of justification (self-defense) for the use of deadly force by the Defendant.
See, Government's proffer at June 22, 2000 hearing.
17. That Defendant was acquitted by jury trial of the crimes of Attempted Homicide and Aggravated Assault in the Maricopa County Superior Court, State of Arizona, for the May 19, 1999, .22 cal. rifle shooting of Jerry Glass, a deputy sheriff with the Maricopa County Sheriff's Office. Deputy Glass was shot in the jaw and seriously injured while he and another deputy sheriff were conducting surveillance of the Defendant and others who were living in the desert north of Phoenix. Obviously, Defendant illegally possessed a firearm at the time of this shooting.
Id., at page 14.
18. Although acquitted of the state crimes charged, the Defendant's behavior of using deadly force by shooting into the dark, towards the sounds of voices without the apparent use or threatened use of immediate deadly force against himself or others, shows, at a minimum, a reckless disregard for the health and safety of others.
19. That at the detention hearing before the undersigned on April 19, 2001, Deputy Sheriff Glass testified that when the Defendant first appeared for his initial appearance in the U.S. District Court in Phoenix on June 19, 2000, the Defendant mouthed these words directly to Deputy Glass, who was sitting near the front of the courtroom's spectator section with his wife: "I'll get you" and "You're next." The Defendant also used derogatory, vulgar language towards Deputy Glass at a chance encounter while in the hallway of the courthouse and to his wife when they were in the courtroom. None of these alleged statements were heard by the Court nor contradicted by Defendant.
20. That although he has a motive to ensure that the Defendant is not released, the Court finds the testimony of Deputy Sheriff Glass is credible and reliable.
21. That the Court personally observed the Defendant and his demeanor during the testimony of Deputy Sheriff Glass on April 19, 2001. Although usually quiet and sedate during court proceedings, the Defendant became emotional and animated in his communications with his lawyer and showed outward signs of anger toward Deputy Sheriff Glass when Deputy Sheriff Glass took the witness stand. The Court wishes to make clear, however, that the Defendant did not do or say anything out loud during the hearing that was inappropriate or disrespectful to the witness or the Court.
22. That despite his serious medical condition, the Defendant likely still harbors strong emotional feelings of ill will toward, and feelings of persecution by, Deputy Sheriff Glass for which the Defendant likely needs anger control counseling.
23. That although justification may be a defense to a felon's possession of a firearm, Defendant has demonstrated a history of disregarding the law, a history of illegally possessing firearms, and has shown little reluctance in using deadly force with or without justification.
See, United States v. Gomez, 92 F.3d 770 (9th Cir. 1996).
24. That there is no evidence that Defendant has ever had, or has now, any suicidal ideations.
25. That all of the Defendant's reasonable, necessary and specialized medical needs are being timely met at the present time by CCA, his current detention facility in Florence, Arizona, and the U.S. Marshal Service.
See, testimony taken at OSC hearing before the undersigned on April 9, 2001.
Based upon all of the foregoing and the evidence presented at the subject detention hearings,
The Court FINDS that the Government has failed to sustain its burden of proof that the Defendant is a serious flight risk.
The Court FURTHER FINDS that the Government has sustained its burden of proof by clear and convincing evidence that the Defendant is, and remains, a danger to Deputy Sheriff Jerry Glass and that no condition or combination of conditions would reasonably assure the safety of Deputy Sheriff Jerry Glass were the Defendant to be released. Accordingly,
IT IS ORDERED that the Defendant shall remain detained in both CR 01 — 152 PHX SMM and CR00 — 431 PHX SMM until further order of the Court.
DATED this 24th day of April, 2001.
Lawrence O. Anderson United States Magistrate Judge