Opinion
Case No. 01-40084-01-RDR.
September 5, 2001.
ORDER
This matter is presently before the court upon the government's appeal of the magistrate's decision to release the defendant pending trial. The court has conducted a hearing and is now prepared to rule.
The defendant is charged with one count, felon in possession of a firearm in violation of 18 U.S.C. § 922(g). On September 4, 2001, a detention hearing was held before the magistrate. At the conclusion of the hearing, she denied the government's motion for detention. She allowed the defendant released upon an unsecured $50,000 bond. She imposed a number of conditions upon the defendant. The government then requested a stay of that order. This motion was denied. The government filed a motion for stay with this court and we granted it.
The defendant is 23 years old. He has a common-law wife and five children. He has lived in Topeka all of his life. His parents reside in Topeka, as do two sisters and two half-sisters. He has a minimal history of employment. He was not working at the time of his arrest. He has three prior felonies (one for sale of marijuana, one for possession of drugs, and one for driving while a habitual violator) and one prior misdemeanor (eluding police). He also has several prior arrests, including several that occurred while he was on bond or on probation.
The charge in this case arises from an incident on February 13, 2001. It is alleged that on that date, at approximately 1:30 a.m., the police received a report that someone was throwing snowballs at an apartment complex. The police arrived at the scene and found the defendant who matched the description of the person identified by the caller. For their own security, the police patted down the defendant. In his pocket, they found a firearm. He was then arrested and charged in state court. He has been on bond on this charge since his arrest. He was indicted in federal court on August 15, 2001.
The government may seek review of a defendant released by the magistrate. 18 U.S.C. § 3145(a). The district court conducts a de novo review of the magistrate judge's order. United States v. Carlos, 777 F. Supp. 858, 859 (Kan. 1991). The district court must make its own de novo determination of the facts with no deference to the magistrate judge's findings. United States v. Koenig, 912 F.2d 1190, 1192 (9th Cir. 1990). De novo review does not require a de novo evidentiary hearing. United States v. Alonso, 832 F. Supp. 503, 504 (Puerto Rico 1993); United States v. Bergner, 800 F. Supp. 659, 661 (N.D.Ind. 1992). The district court may elect to "start from scratch" and follow the procedures for taking relevant evidence. United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991). The district court may also incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted there.United States v. Chagra, 850 F. Supp. 354, 357 (W.D. Pa. 1994);see United States v. Messino, 842 F. Supp. 1107, 1109 (N.D.Ill. 1994). Finally, the district court may conduct evidentiary hearings if "necessary or desirable," and the hearings are not limited to situations where new evidence is being offered. Koenig, 912 F.2d at 1193. These matters are left to the district court's sound discretion. Id.; Bergner, 800 F. Supp. at 661.
The court shall consider the evidence that was presented to the magistrate and the additional evidence that was presented during the hearing before this court.
The Bail Reform Act of 1984 mandates a detention hearing before a judicial officer for a defendant falling into any of six categories. 18 U.S.C. § 3142(f). Three of those categories, subparagraphs (f)(1)(A) — (C), are based on the nature of the offense charged; one, subparagraph (f)(1)(D), on the defendant's prior record; and two, subparagraphs (f)(2)(A) — (B), on the risk that the defendant will either flee, or obstruct justice or threaten a witness or juror. The government has suggested that (f)(1)(A) ["a case that involves a crime of violence"], (f)(2)(A) ["a serious risk that such person shall flee"], and (f)(2)(B) ["a serious risk that such person obstruct or attempt to obstruct justice . . ."] are applicable here. The defendant suggests that the government has not demonstrated the application of any of these categories and therefore he must be released pending trial.
The court recognizes that whether the instant offense is a crime of violence is the key issue here. The court finds no merit to the other contentions raised by the government. The court does not find that the government has sufficiently demonstrated that the defendant is a serious risk to flee. He has missed several court dates in prior cases, but he has always eventually appeared. He has been a lifelong resident of Topeka, and he has a common-law wife and five children that reside in Topeka. We find insufficient evidence to support any contention that the defendant will flee. The court also finds no merit to the government's suggestion that the defendant will obstruct justice if released. The court finds no evidence to support this argument. With that said, we turn to the issue of whether the crime of felon in possession of a firearm is a crime of violence under the Bail Reform Act.
A "crime of violence" is defined in the Bail Reform Act as follows:
(A) an offense that has an element of the offense the use, attempted use, or threatened 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; or
(C) any felony under chapter 109A . . ., 110 . . ., or 117.18 U.S.C. § 3156(a)(4).
The relevant portion of the above mentioned definition is subparagraph (B), i.e., whether the crime of felon in possession of a firearm, 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. The Tenth Circuit has not decided this issue and the other circuits are split. Compare United States v. Dillard, 214 F.3d 88 (2nd Cir. 2000) (felon in possession of firearm is a crime of violence under the Bail Reform Act) with United States v. Lane, 252 F.3d 905 (7th Cir. 2001) (felon in possession of firearm is not a crime of violence under the Bail Reform Act) and United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999) (same).
The court has carefully reviewed the cases that have discussed this issue. The court has determined that the offense of felon in possession of a firearm is not a crime of violence under the Bail Reform Act. The court believes that Judge Posner in Lane properly analyzed and decided the issue. This court is in agreement with the following comments by Judge Posner:
The Second Circuit in Dillard asked whether felons do a lot of violence with the weapons they possess illegally, and answered "yes," leading to the conclusion that the risk of violence created by being a felon in possession of a firearm is substantial. But the statute asks whether there is a "substantial risk that physical force against the person or property of another may be used in the course of committing the offense," and the offense is possession of a firearm. People who commit that offense may end up committing another, and violent, offense, such as robbing a bank at gunpoint, but that doesn't make the possession offense violent. Otherwise we would have to say that the offense of driving a car without a license is a crime of violence because people who commit that offense are likely to drive when drunk, or to speed, or drive recklessly, or attempt to evade arrest. For that matter, the illegal sale of a gun, or perhaps of a knife or burglar tools, would on that analysis be a crime of violence. A crime that increases the likelihood of a crime of violence need not itself be a crime of violence. Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), is suggestive. The Supreme Court distinguished simple possession of a weapon from use in the sense of active use, limiting the statutory term "use" to the active variety. The active use of a gun is a crime of violence in a way that mere possession of it, even if criminal, is not. Dillard bespeaks a pre-Bailey understanding of possession and use as being essentially identical crimes.Lane, 252 F.3d at 907-08.
With the aforementioned decisions, the court finds that the defendant must be released pending trial. Accordingly, the decision of the magistrate shall be affirmed. The defendant shall be released pending trial subject to all of the conditions established by the magistrate.
IT IS THEREFORE ORDERED that the government's motion to review the decision of the magistrate denying detention be hereby denied. The magistrate's ruling is hereby affirmed. The defendant shall be released pending trial subject to all of the conditions established by the magistrate.