Opinion
Case No. 2:10-mj-0156.
March 11, 2010
ORDER
The United States has charged defendant Scott Lape with the crime of possession of a firearm by a convicted felon. Mr. Lape and his counsel appeared for a preliminary hearing and detention hearing on March 10, 2010. After taking testimony, the Court found probable cause to believe that Mr. Lape had committed the charged offense. The remaining question is whether Mr. Lape is entitled to be released on conditions in accordance with 18 U.S.C. § 3142. For the following reasons, the Court concludes that he is.
The United States' case for detention rested almost exclusively on the testimony of Task Force Officer Jerry Orick. The Court will summarize that testimony in some detail.
First, Officer Orick testified about the events which relate to the current charge. According to reports from the files of the Columbus Police Department (Officer Orick did not investigate these events himself), in the early morning hours of June 7, 2009, someone called the police with a report of "shots fired." Some time thereafter (but the record is silent as to how long after), policemen were dispatched to the scene. On the way there, they saw a car or minivan leaving the area at a high rate of speed. Its rear license plate was bent, making it impossible for officers to see the plate number. The car was stopped for that reason.
Mr. Lape was the driver. He could not produce a license. He was asked to step out of the car so he could be identified. When he did so, one of the officers saw the handle of a handgun in an area near the driver's seat. It was removed as well. Mr. Lape was then charged with improper handling of a firearm in a vehicle. The charge in this case involves his unlawful possession of that same firearm.
Police went to the scene of where the shots had been fired and spoke to a resident of a home into which some or all of those shots had bee fired. That gentleman told officers that he was awakened in the middle of the night by the sound of gunfire and that one bullet passed near his head as he lay in bed. Twelve shell casings were found at the scene and two bullets were recovered. The house had been shot into numerous times. The victim speculated that the shooting might have been related to his previous involvement in the crack cocaine trade, and he named an individual (not Mr. Lape) who might have wanted to harm him.
Officer Orick read from a report that the shell casings were matched to Mr. Lape's pistol based on the strike marks made by the hammer. He did not know if any ballistic tests had been run on the bullets which were recovered. He was not aware of any evidence showing that Mr. Lape's pistol had been fired that day, whether Mr. Lape had fired a gun, or whether the gun was loaded, unloaded, or partially loaded when seized. No one has been charged with a crime related to the home shooting.
Officer Orick also testified that Mr. Lape's name appears in Columbus Police reports in connection with four other incidents. In May, 2000, someone told police that Mr. Lape had punched him several times and thrown a brick through his car window. Mr. Lape was never charged with this crime. In 2002 or 2003, Patrick Grambo was killed in an apparent home invasion robbery. Recently, a cold case investigator interviewed a person named Ronnie Hall in connection with this murder. Although it is not exactly clear why, Mr. Lape is considered a suspect in that case, but neither he nor anyone else has been charged. In 2007, someone fired shots into a car and may have burned it. Mr. Lape is a "person of interest" in the investigation of that incident, but Officer Orick did not say why. In 2009, an individual was robbed and shot in the leg. Mr. Lape is listed as a witness to that shooting.
Officer Orick also testified that early this year, the Columbus Police received a call from DEA agents in Brownsville, Texas about Mr. Lape. The agents reported information (although Officer Orick did not know how they got this information) that Mr. Lape and a woman from North Carolina were on their way to Columbus in a rented vehicle and had several kilograms of cocaine with them. Records confirmed that Mr. Lape had crossed the border from Mexico on foot in Brownsville on January 3, 2010. There was no other evidence about this incident.
Officer Orick also testified that two different sources may have told Columbus Police officers that Mr. Lape knew he would be facing federal charges in Columbus and wanted to move to California. He did drive by one of Mr. Lape's properties earlier this month and it did not look like anyone was living there. Mr. Lape initially told Officer Orick, on the date of arrest, that he lived on Burgess Avenue in Columbus. He then amended that answer and said he lived in a condominium on Woodbrooke Circle. Officer Orick ran "intel" on that residence but did not know if it was furnished or if Mr. Lape and his family had been living there. Finally, he testified to the substance of a conversation between Mr. Lape and the Marshal's office to the effect that Mr. Lape was prone to either violent behavior or violent outbursts. During cross-examination, he conceded that these statements could have been made in the context of a question about Mr. Lape's criminal record, which does contain several convictions for assaultive behavior.
The Pretrial Services Report provides additional relevant information. Mr. Lape is a life-long resident of central Ohio and has been married since 2004. He and his wife have three children. He is self-employed and owns a number of rental properties in Franklin County. One of them, the residence on Pontius Road that Officer Orick observed, is in foreclosure. Mr. Lape used marijuana when he was younger but has not done so in the last seven years. He attended anger management programs once or twice because of court orders to do so.
As far as his criminal record is concerned, aside from a number of minor offenses, he was convicted of negligent assault in 2001 (his wife was apparently the victim) and of attempted felonious assault in both 2003 and 2004. He received a one-year sentence for the first conviction and was given five years of community control for the second. He was successfully discharged from probation in 2009, and no probation violations appear in the record. Two charges were filed against him in state court concerning the June 7, 2009 possession of a firearm. One was dismissed on June 8, 2009, and the other was nolled on November 4, 2009. There is no indication of what bond, if any, was set on these charges, but there is also no indication of any bond violations. Further, it does not appear that he was held in jail for any appreciable time, if at all, on either charge. He is 30 years old.
Under 18 U.S.C. § 3142(f), a detention hearing may be held in a case involving, inter alia, a serious risk that the person to be detained will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror. Such a hearing may also be held if there is a serious risk that the person sought to be detained will flee. At the hearing, it is the task of the presiding judicial officer to determine whether any condition or combination of conditions of release "will reasonably assure the appearance of the person as required and the safety of any other person and the community. . . ."
Following the hearing, "if the judicial officer determines that no such conditions exists, such judicial officer shall order the detention of the person before trial." Id. If detention is based upon a finding that no condition or combination of conditions will reasonably assure the safety of any other person in the community, such a finding must be supported by clear and convincing evidence. Proof that the person sought to be detained is a serious risk of flight must be by a preponderance of the evidence.
18 U.S.C. § 3142(g) requires the judicial officer to consider available information concerning (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. See, e.g.. United States v. Arvanitis, 667 F. Supp. 693 (N.D.Ill. 1987). Detention may be ordered based upon a finding that the defendant is likely to continue to engage in criminal activity which poses a threat either to the community or to the safety of particular persons, and such circumstances are not limited to proof that the defendant poses a serious risk either to obstruct justice or to intimidate or injure a prospective witness or juror. See, e.g., United States v. Daniels, 772 F.2d 382 (7th Cir. 1985); United States v. Yeaple, 605 F.Supp. 85 (M.D.Pa. 1985).
With respect to any risk of flight, the United States' proof consists of no more than second-hand hearsay statements to the effect that Mr. Lape might be moving to California. No evidence was presented that he had done anything to carry out such a plan. All of his family and his business properties are in Franklin County. He has been aware of the possibility of federal charges since his initial arrest some nine months ago, but has not fled. To the extent that he poses any risk of flight or non-appearance, electronic monitoring should suffice to guard against that risk.
With respect to danger to the community, the United States appeared to concede at the hearing that none of the evidence about each specific crime that Mr. Lape may have been involved in rose to the required level of proof. However, the United States argued that, cumulatively, this evidence did present clear and convincing proof both that Mr. Lape is a danger to the community and that there are no bond conditions that could adequately assure the community's safety were he to be released. The Court disagrees.
At least three of the incidents which Officer Orick testified to have no probative value at all concerning whether Mr. Lape is a danger to the community. His being named in police reports as a witness to a crime, as a suspect, or as a person of interest, without any facts suggesting why he has been so labeled, is simply not evidence that he engaged in any criminal or dangerous behavior. The evidence of his crossing the Mexican border and allegedly being involved in the transportation of cocaine cannot be assigned much weight because the source of the DEA's information is unknown and no corroborating evidence, apart from Mr. Lape's unexplained presence in Brownsville, Texas, has been developed. The evidence of the 2000 assault should be given some weight, although the fact that the victim's credibility cannot be evaluated, that the crime happened ten years ago, and that the police apparently decided not to charge Mr. Lape with a crime, all dilute its probative value concerning whether Mr. Lape is currently a danger to the community. These five matters, as well as his ambiguous statement to the Marshals at the time of his booking, whether they are considered separately or cumulatively, carry almost no weight in the Court's analysis.
The two attempted felonious assault convictions do provide some basis for concluding that Mr. Lape has violent tendencies. However, there was no evidence presented about either crime. Further, the crimes are both more than five years old, and Mr. Lape completed a five-year term of supervision after the second crime without incident. This is fairly strong evidence that whatever danger he posed to the community from the 2003 and 2004 crimes can be addressed with appropriate court supervision.
Most troubling is the evidence that Mr. Lape not only possessed a firearm on June 7, 2009 — something no convicted felon is allowed to do — but that he used it to put someone's life in danger. Although there was no evidence concerning what motive Mr. Lape may have had to shoot into the victims' home, the report that matches the shell casings to his gun is relevant to some degree in determining whether he was the shooter. There are, of course, many details about the shooting that are lacking, such as how long after the shooting Mr. Lape was stopped and whether he was the one who fired the weapon, but it can certainly be inferred that he was involved in this event in some fashion. The Court is aware, however, that the "science" of matching toolmarks to shell casings and excluding all other weapons but the one tested as possibly having made those marks is not without its critics. See, e.g., United States v. Green, 405 F.Supp. 2d 104 (D. Mass. 2005); see also United States v. Mouzone, 2009 WL 3617748, *20 (D. Md. October 29, 2009) (listing five specific criteria that must be satisfied before such evidence can be admitted at trial). Without further evidence, the Court is unable to determine if the report to which Officer Orick referred would even be admissible were Mr. Lape to be tried for having fired his gun into the home in question. Certainly, on the record before the Court, there is no clear and convincing evidence that he committed that crime. Of course, the United States need not prove the commission of a specific crime by clear and convincing evidence in order to meet that same standard of proof with respect to whether the defendant is a danger to the community, but the strength of the underlying evidence is a factor to be considered.
Other factors to be considered under 18 U.S.C. § 3142(g) include whether the charge which the defendant faces in federal court involves narcotics or is a crime of violence. The current charge meets neither of these criteria. There is also the issue of the amount of time the defendant has spent in the community unsupervised between the date of the crime and the date of arrest. Here, that time lapse is nine months, during which neither the state nor federal governments apparently considered Mr. Lape dangerous enough to seek his detention. Other than the trip to Brownsville, Texas, in early 2010, all of the evidence concerning his alleged dangerousness existed in June, 2009. He did not suddenly become a danger to the community when arrested on March 5, 2010. For all of the reasons given here, the Court cannot find proof by clear and convincing evidence that Mr. Lape poses such a danger to the community that no set of conditions could adequately guard against that risk.
Of course, the availability of adequate release conditions is a major part of the equation. Here, Mr. Lape can be placed under pretrial supervision. He can be placed on house arrest. He can be screened for drug or alcohol use or abuse and referred to treatment if needed. He can be referred to anger management or other mental health counseling if he is still prone to violent outbursts or behavior. The combination of these conditions is reasonably calculated to assure both his appearance in court in the future and protect the community against any risk that might be created by Mr. Lape's release. Therefore, the United States' motion for detention is denied.
The Court intended for its order of release to be effective only when all pre-conditions to establishing electronic monitoring at Mr. Lape's current residence were met. The Pretrial Services office should still advise the Court when that has occurred. However, at the request of the United States, this order is stayed in order to allow the United States to seek review by a United States District Judge. If an appeal of this order is not filed by the close of business on March 12, 2010, the stay will expire.