Opinion
Case No. 03-10051-01-WEB.
April 10, 2003.
ORDER OF DETENTION PENDING TRIAL
On April 4, 2003, a detention hearing was conducted in accordance with the Bail Reform Act, 18 U.S.C. § 3142(f). The Government appeared by and through Brent I. Anderson, Assistant United States Attorney. The defendant appeared in person and through court-appointed counsel, Kevin W. Loeffler.
The Government requested a detention hearing because this case involves a crime of violence, 18 U.S.C. § 3142(f)(1)(A); because this case involves a felony, where the defendant has been convicted of two or more crimes of violence under State or local law, id. § 3142(f)(1)(D); and because defendant poses a serious flight risk, id. § 3142(f)(2)(A).
Prior to conducting a detention hearing, the court must find that at least one of the six prerequisites outlined in 18 U.S.C. § 3142(f) has been satisfied. Therefore, the Court must determine whether any of the three grounds for a detention hearing relied upon by the Government are applicable in this case.
BASES FOR DETENTION HEARING
1. Crime of Violence — § 3142(f)(1)(A)
First, the Government relies on the argument that the charged offense, being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1), constitutes a crime of violence. Many courts have grappled with the similar question of whether being a felon in possession of a firearm constitutes a crime of violence for purposes of the Bail Reform Act of 1984. Compare U.S. v. Dillard, 214 F.3d 88, 97 (2nd Cir. 2000), cert. denied 532 U.S. 907 (2001) (felon in possession of a firearm constitutes a crime of violence), with U.S. v. Lane, 252 F.3d 905, 908 (7th Cir. 2001) (felon in possession of a firearm is not a crime of violence), and U.S. v. Singleton, 182 F.3d 7, 16 (D.C. Cir. 1999) (felon in possession of firearm is not a crime of violence). The Tenth Circuit, in an unpublished opinion involving the appeal of an order of pretrial detention, has held that a defendant charged with possession of an unregistered firearm under 26 U.S.C. § 5861, is charged with a crime of violence as defined by 18 U.S.C. § 3156(a)(4)(B). U.S. v. Newman, 125 F.3d 863, 1997 WL 603740 (10th Cir. 1997) (where the unregistered firearms were fully functional pipe bombs, each containing powder, match heads and two-inch nails or screws). One judge in this district has held that a charge of a felon in possession of a firearm under § 922(g), is not a crime of violence. U.S. v. Plaiko, 2001 WL 1167305 (Kan. 2001).
On the other hand, the question of whether a felon in possession of ammunition alone may be considered a crime of violence has been raised less frequently. See U.S. v. Carswell, 144 F. Supp.2d 123, 133 (N.D.N.Y. 2001) (felon in possession of ammunition is a crime of violence under the Bail Reform Act of 1984).
A crime of violence is defined in 18 U.S.C. § 3156(a)(4)(B) to include a felony that involves a "substantial risk that physical force" may be used "against the person or property of another." Id. (emphasis added). While mere possession of ammunition by a felon may pose some risk that the bullets will be fired in a violent manner, this court is uncertain whether that rises to the level of "substantial risk," as required by the statute. Regardless, the court need not decide that matter because § 3142(f)(1) does not expressly limit consideration to the charged offense.
In Newman, the Tenth Circuit concluded that possession of unregistered pipe bombs did involve a substantial risk of injury to the person or property of another, noting that pipe bombs are "inherently dangerous weapons for which no peaceful purpose can be seriously suggested, regardless of whether the weapons actually are used." 1997 WL 603740 at * 1, quoting U.S. v. Dodge, 846 F. Supp. 181, 184 (D. Conn. 1994). In order to be inherently dangerous, ammunition would require the existence of a weapon to fire the ammunition unlike a pipe bomb which can be discharged without use of any other firearm. As the Court noted in Carswell, however, a felon's possession of ammunition can serve as a precursor to his using the ammunition to load a weapon and discharge it into an innocent victim's apartment, therefore demonstrating that ammunition possession by felons carries the same inherent risk as does gun possession. 144 F. Supp.2d at 133.
On the contrary, § 3142(f)(1)(A) focuses on whether the case "involves a crime of violence." Id. (emphasis added). Had Congress intended to limit the court's consideration to the charged offense, it would have said so. See, e.g., 18 U.S.C. § 3142(g)(1) (expressly addressing the "offense charged"). Accordingly, the court may inquire into the circumstances surrounding the charged offense. U.S. v. Byrd, 969 F.2d 106, 110 (5th Cir. 1992). So long as some nexus exists between the charged offense and a crime of violence, the case involves a crime of violence for purposes of § 3142(f)(1)(A). Byrd, 969 F.2d at 110. Here, the Government proffered that:
1. On the night defendant was arrested, police were called to a residential burglary near the defendant's home.
2. The victim indicated that four individuals forcibly entered her home. The perpetrators wore ski masks, and at least some were armed.
3. The assailants bound the victim's ankles with some sort of electrical ties or similar plastic restraining devices.
4. At least one of the assailants struck the victim in the head with a gun.
5. Upon responding to the burglary call, one of the police officers discovered footprints in the snow leading away from the victim's home.
6. The officer followed the footprints to the house where defendant was living.
7. The officer knocked on the door to the residence. The defendant answered the door and claimed that he had been asleep and had no knowledge of the alleged burglary.
8. In plain view inside the residence, the officer saw ski masks, guns, and plastic restraining devices of the same type used to bind the victim.
9. At some point during the encounter, police discovered ammunition in defendant's pocket, which forms the basis for the present charge.
The Byrd approach offers an appealing framework for determining whether a detention hearing is warranted under 18 U.S.C. § 3142(f)(1)(A). Rather than debating about whether the charged offense of felon in possession of a firearm or felon in possession of ammunition amounts to a crime of violence, courts can look to the surrounding circumstances to determine whether each particular case involves a crime of violence. Such an approach appears to hold true to the plain meaning of § 3142(f)(1)(A), without engaging in the linguistic gymnastics necessary to conclude that the actual felon in possession offense amounts to a crime of violence under § 3156(a)(4). Indeed, the language of § 3156(a)(4), defining "crime of violence," suggests a categorical approach where a court looks to an offense in the abstract, without considering the surrounding circumstances. Many courts have so held. See, e.g., U.S. v. Lane, 252 F.3d 905, 907-08 (7th Cir. 2001); U.S. v. Singleton, 182 F.3d 7, 11 (D.C. Cir. 1999); U.S. v. Goba, 240 F. Supp.2d 242, 249 (W.D.N.Y. 2003). On the other hand, § 3142(f)(1)(A) takes this seemingly categorically-defined term, "crime of violence," and states that a detention hearing may be had if the case merely "involves" a crime of violence. Id. Synthesizing § 3156(a)(4) with § 3142(f)(1)(A), a court must consider whether a particular case "involves a crime of violence" by looking to the circumstances surrounding the charged offense and determining whether any of the surrounding conduct amounts to a "crime of violence," as defined under § 3156(a)(4). See Byrd, 969 F.2d at 110.
Virtually all of the proffered information was actually presented in the initial appearance before Judge Karen M. Humphreys on March 31,2003, at which hearing defendant was present with counsel. The court has reviewed the recorded transcript of that prior hearing before issuing this detention order.
During questioning, Defendant stated that he did not know anything about the firearms but noted that a friend of his, Aransak Kesbixay, had left some things at the house. When agents ran the name of Aransak Kesbixay, they found that a person by this name was being sought by authorities on a warrant issued from Dallas, Texas for murder charges.
While the charged offense may or may not constitute a crime of violence, the Government has certainly established the likelihood of a connection between the charged offense and the burglary, which is clearly a crime of violence under 18 U.S.C. § 3156(a)(4). Accordingly, the Government was entitled to demand a detention hearing because this case involves a crime of violence. 18 U.S.C. § 3142(f)(1)(A).
2. Conviction of Two Prior Crimes of Violence — § 3142(f)(1)(D)
The court further finds that the Government appropriately demanded a detention hearing under § 3142(f)(1)(D). That provision allows a detention hearing if the case involves a felony, and if the defendant has previously been convicted of two or more crimes of violence, including state offenses that are crimes of violence. See id. The charge of felon in possession of ammunition under 18 U.S.C. § 922(g)(1) constitutes a felony. See id. § 924(a)(2). Furthermore, the Pretrial Services Report (PSR) indicates that defendant has at least two felony convictions for burglary in state court, as well as one conviction for misdemeanor battery in state court.
Under 18 U.S.C. § 3156(a)(4)(A), a crime of violence is defined to include any offense having as an element the use of physical force. Id. Battery inherently satisfies that definition. See K.S.A. § 21-3412. Also, the offense which is described in § 3156(a)(4)(A), i.e., crime of violence, doesnot have to be a felony. Therefore, the state misdemeanor battery conviction qualifies as a prior crime of violence.
Moreover, 18 U.S.C. § 3156(a)(4)(B) broadens the definition to include any felony that "involves a substantial risk that physical force" may be used against "the person or property of another." Id. The PSR is silent with regard to the details of defendant's burglary convictions, including which specific provisions of the statute formed the basis for conviction. See K.S.A. § 21-3715. While burglary of a dwelling certainly appears to involve a substantial risk that physical force may be used on a person (i.e. due to confrontation with an inhabitant), see K.S.A. § 21-3715(a), some of the other statutory variants of burglary initially suggest less likelihood of violence. See K.S.A. § 21-3715(b) (burglary of a non-dwelling); K.S.A. § 21-3715(c) (burglary of motor vehicles and other conveyances). However, the definition of "crime of violence" encompasses not only risk of physical force against persons, but also use of force against property. 18 U.S.C. § 3156(a)(4)(B). Whether the particular burglary involves either entry into or remaining within an enclosure, and whether the burglary is aimed at harming persons or simply taking property, the fact remains that there is a substantial risk that physical force will be used on people (to obtain property, affect escape, etc.) or property (to obtain entry, affect escape, discover valuables, etc.). Therefore, the court finds that defendant's burglary convictions constitute crimes of violence.
To further the argument for likelihood of physical violence under any variation of statutory burglary, the court notes that K.S.A. § 21-3213 authorizes the use of reasonable force to prevent or terminate an unlawful interference with property. This statute has been interpreted to permit even the use of deadly force, so long as reasonable, to terminate an unlawful interference with personal property. State v. Clothier, 243 Kan. 81, 83, 753 P.2d 1267, 1269 (1988). Accordingly, under Kansas law, any interference with property raises the specter of lawful, forceful resistance by the owner, thereby placing a burglar in a position of choosing between retreat or using force himself. While retreat may be an option, the likelihood of escalation further raises the risk that physical force may be used by the perpetrator.
Considering both the battery and the burglary convictions, a detention hearing was warranted under 18 U.S.C. § 3142(f)(1)(D).
3. Serious Risk of Flight — § 3142(f)(2)(A)
Finally, the Government suggests that a detention hearing was warranted because defendant poses a serious flight risk. 18 U.S.C. § 3142(f)(2)(A). The PSR indicates that the defendant is a resident alien who has previously suffered parole revocation and has been arrested at least three times for failing to appear for scheduled court proceedings. Based on the indications that defendant has a history of failing to comply with court instructions, a detention hearing was warranted based on flight risk.
DETENTION HEARING
Having been satisfied that the prerequisites for a detention hearing were met, the court conducted a detention hearing pursuant to 18 U.S.C. § 3142(f). In determining whether any conditions of release would reasonably assure the defendant's appearance, as well as ensure the safety of other persons and the community, the court considered the factors under § 3142(g) and makes the following findings:
These findings are based on the PSR, the detention hearing held on April 4, 2003 and the initial appearance held before Judge Karen M. Humphreys on March 31, 2003. The court reviewed the recorded transcript of the March 31, 2003 hearing which included a lengthy proffer by the Government.
1. The circumstances surrounding the charged offense suggest that defendant poses a risk to the burglary victim and the community at large. 18 U.S.C. § 3142(g)(1). Although the charged offense may not be considered a crime of violence, see id., the statute directs the court to consider the circumstances surrounding the charge, which includes the alleged burglary. Id. In this case, the burglary involved multiple armed assailants, as well as striking a bound victim with a weapon. The victim lives in close proximity to the defendant, thus suggesting a risk of further encounters between the defendant and victim. Furthermore, the defendant has been identified as a known gang-member, indicating that his involvement in this type of violent activity may be habitual.
2. The defendant has some family and community ties that militate in favor of release. He has a mother, sister and child who all live in the area. Additionally, defendant has resided in the Wichita-area for over ten years.
3. The defendant has not been employed since 1999. He appears to rely on his mother for subsistence. This factor weighs against release in that he has no job to keep him in the area and he must rely on other means to supplement the assistance provided by his mother. His alleged connection to gang activity also suggests that defendant may be relying on criminal activities as a means of support.
4. The defendant has no property or other assets that may be relied upon to assure his appearance in future proceedings.
5. Defendant has a substantial criminal history, including conviction on two counts of felony burglary in 1997, a felony conviction in Johnson County, Kansas, in 1995, a misdemeanor battery conviction in 1997, and a misdemeanor conviction in 1995 for tampering with an automobile. This habitual involvement in criminal activity supports detention in order to protect the community.
6. Defendant has a history of failing to comply with court directives. In 1999, his probation was revoked and he was ordered to serve the original sentence arising from his 1997 burglary conviction. Additionally, on at least three occasions, defendant has failed to appear for scheduled proceedings. These failures resulted in warrants being issued for his arrest. These facts strongly suggest that defendant refuses to comply with the courts' supervisory requirements when he is released from custody, and this history shows that Defendant is a flight risk.
7. The Court has reviewed and incorporates the PSR for defendant dated April 1, 2003, and the earlier PSR for defendant in an earlier case dated May 18, 1999.
Therefore, the court finds that the Government has shown by clear and convincing evidence that no conditions may be imposed that would reasonably assure the safety of the burglary victim or the community. Furthermore, the court finds that the Government has shown by a preponderance of the evidence that no conditions may be imposed that would reasonably assure defendant's appearance at future proceedings.
The Government's motion for detention is GRANTED. Defendant is advised that he has the right to have this Order of Detention reviewed by the District Judge to whom the case is assigned pursuant to 18 U.S.C. § 3145(b).
IT IS THEREFORE ORDERED that the defendant be committed to the custody of the Attorney General or his designated representative for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. The defendant shall be afforded a reasonable opportunity for private consultation with defense counsel. On order of a court of the United States or on request of an attorney for the Government, the person in charge of the corrections facility shall deliver the defendant to a United States marshal for the purpose of an appearance in connection with a court proceeding.
IT IS SO ORDERED.