Opinion
Cause No. IP01-0060-CR-01-H/F
June 8, 2001
Winfield Ong, United States Attorney's Office, Indianapolis, IN.
Linda M Wagoner Attny at Law, Indianapolis, IN.
ENTRY ON DEFENDANT'S MOTION TO REVOKE DETENTION ORDER
Defendant David E. Francis has been indicted for possession of firearms as a person with a prior felony conviction in violation of 18 U.S.C. § 922(g)(1). The indictment also alleges that Mr. Francis has three previous convictions for violent felonies. Pursuant to 18 U.S.C. § 924(e), which provides for enhanced sentences in such cases, Mr. Francis faces a minimum 15 year prison sentence and a maximum term of life in prison if convicted. Mr. Francis is 55 years old.
On April 17, 2001, Magistrate Judge Foster ordered Mr. Francis detained pending trial in this case. A detailed written entry followed on May 11, 2001.
The federal case against Mr. Francis began with a criminal complaint filed April 11, 2001. The complaint alleged possession of firearms by a felon and possession of a firearm in furtherance of a drug trafficking crime. Because the complaint charged Mr. Francis with possession of a firearm in furtherance of a drug trafficking crime, Magistrate Judge Foster based his detention order in part on the presumption in favor of detention set forth in 18 U.S.C. § 3142(e), which arises from a the charged violation of 18 U.S.C. § 924(c). Magistrate Judge Foster also found that Mr. Francis presented a serious risk of flight.
Magistrate Judge Foster also based his decision on a review of Mr. Francis' extensive criminal history, his history of substance abuse, and the information provided in connection with Mr. Francis' arrest and the searches of his residence and place of business, which turned up about 500 grams of methamphetamine and some 67 firearms. Magistrate Judge Foster noted in particular that when Mr. Francis was arrested on federal charges on April 12, 2001, he was on bond from a state court and still tested positive for cocaine use.
On May 31, 2001, Mr. Francis moved pursuant to 18 U.S.C. § 3145(b) to revoke that detention order so that he might be released on conditions before trial. Section 3145(b) requires that such motions be determined "promptly." The court has listened to the tape of all the proceedings before Magistrate Judge Foster and heard additional evidence and argument on Monday, June 4, 2001.
For the reasons explained in this entry, defendant's motion is denied.
Discussion
This court considers the issue of detention de novo. United States v. Jones, 804 F. Supp. 1081, 1086 (S.D.Ind. 1992); see also United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991) (history of Bail Reform Act supports requirement that district court should review detention order de novo); United States v. Maull, 773 F.2d 1479, 1481-82 (8th Cir. 1985) (en banc) (district judge required to read testimony before magistrate judge or to receive new testimony).
As noted below, some key aspects of the case have changed since Magistrate Judge Foster made his decision. Those changes emphasize the need for de novo review of the decision here. This entry states the court's findings of fact and conclusions of law in compliance with Fed.R.App.P. 9(a). See United States v. Swanquist, 125 F.3d 573, 575-76 (7th Cir. 1997) (noting need for prompt hearings and clear explanations of bail and detention decisions).
The first issue is whether detention is available in this case under 18 U.S.C. § 3142(f). Detention may be available under § 3142(f)(1) if the case involves a crime of violence, an offense for which the maximum sentence is life in prison, certain drug offenses with maximum sentences of ten years or more, or any felony if the defendant has been convicted of two or more offenses in the foregoing categories. Detention requires the government to show that no condition or combination of conditions will reasonably assure the safety of others and the appearance of the defendant in court.
At the hearing before this judge on the motion to revoke the detention order, the defendant came forward with evidence that one of the three prior felony convictions alleged in the indictment was reversed on appeal by the Kentucky Court of Appeals. That evidence has not been rebutted. Thus, under the pending indictment, the case should not be treated as one in which a life sentence is possible.
In addition, this court has previously held that possession of a firearm by a felon is not a "crime of violence" for purposes of the federal Bail Reform Act. United States v. Robinson, 27 F. Supp.2d 1116, 1118-19 (S.D.Ind. 1998). The circuits are divided on this issue. Compare United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999) (felon in possession not a "crime of violence"), with United States v. Dillard, 214 F.3d 88 (2d Cir. 2000) (felon in possession is a "crime of violence," disagreeing with Singleton). For a recent partial survey of the split decisions, including district court decisions, see United States v. Stratton, 2001 WL 527442 (D.Ariz. April 24, 2001); see also United States v. Sloan, 820 F. Supp. 1133 (S.D.Ind. 1993) (Foster, M.J.) (felon in possession is a "crime of violence").
After reviewing the more recent opinions on the issue, including the Second Circuit's contrary view in Dillard, this court respectfully adheres to its holding in Robinson and the D.C. Circuit's view in Singleton. Possession of a firearm by a felon is not a "crime of violence" for purposes of the Bail Reform Act.
The Bail Reform Act also authorizes detention where a defendant faces any felony charge and has previously been convicted of two or more of the offenses described in 18 U.S.C. § 3142(f)(1)(A), (B), or (C), or their state equivalents. See 18 U.S.C. § 3142(f)(1)(D). The court disregards Mr. Francis' reversed conviction for "wanton endangerment" and accepts his testimony that he had only one conviction for escape in 1965. (The Pretrial Services Report indicates two such convictions that were both disposed of on the same day.) The record still includes felony convictions for armed bank robbery in 1972, escape in 1965, and "storehouse breaking" in 1963, when Mr. Francis was a juvenile. (Before Magistrate Judge Foster, Mr. Francis asserted that the 1963 conviction had been nullified in some way; he asserts that a judge in a later case found that the conviction could not be used to enhance punishment because Mr. Francis had not had counsel in the 1963 case.)
The combination of at least one escape conviction and the armed bank robbery conviction still establishes at least two prior felony convictions for crimes of violence. The armed bank robbery obviously qualifies as a crime of violence. Escape following a felony conviction, which was the charge in Kentucky, should also be treated categorically as a crime of violence for purposes of the Bail Reform Act. See United States v. Dickerson, 77 F.3d 774, 777 (4th Cir. 1996) (attempted escape must be treated as "crime of violence" under sentencing guideline provision for career offenders).
Accordingly, detention is available under 18 U.S.C. § 3142(f)(1)(D) if the court determines that no condition or combination of conditions of pretrial release will reasonably assure Mr. Francis' appearance in court and the safety of others and the community. The next question is whether a statutory presumption in favor of detention should apply here.
Sections 3142(e) and (f) of Title 18 work together to create a presumption in favor of detention for safety reasons in cases, among others, that involve:
(A) a crime of violence;
(B) an offense for which the maximum sentence is life imprisonment or death;
(C) a specified drug offense for which the maximum term of imprisonment is ten years or more; or
(D) any felony if the defendant has been convicted of two or more offenses which also are described in (A), (B), or (C) above;
where the charged offense was committed while the defendant was on release pending trial, and where the defendant's qualifying prior conviction or his release from prison occurred within the last five years. Section 3142(e) also raises a rebuttable presumption in favor of detention if the court finds probable cause to believe the defendant has possessed a firearm in furtherance of a crime of violence or a drug trafficking crime, or who uses or carries a firearm during and in relation to such a crime, in violation of 18 U.S.C. § 924(c).
In this regard, the most significant change of circumstance since Magistrate Judge Foster's decision is the indictment, which was returned on May 16, 2001. The indictment is narrower than the complaint that was before Magistrate Judge Foster. The indictment does not charge possession of a firearm in furtherance of a drug trafficking crime, so the presumption under § 3142(e) in favor of detention on that charge is no longer applicable.
There is no other basis in this case for invoking a statutory presumption in favor of detention under § 3142(e). Despite Mr. Francis' long criminal history, he was not on pretrial release at the time of the arrest, and more than five years have passed since his last release from prison. See 18 U.S.C. § 3142(e)(2) (3).
Thus, at this point in the case, the statutory presumption that no condition or combination of conditions will reasonably assure the safety of other person and the community is no longer applicable. Nevertheless, detention may still be justified if no condition or combination of conditions will reasonably assure the safety of others and/or the defendant's appearance in court. On these questions, the burden of proof is on the government.
In favor of Mr. Francis, the record indicates he has had a stable residence in Brown County for eight or nine years. He does not have a stable employment history, but he has worked at home and in his neighborhood repairing cars and farm equipment, and mowing. He has ties with friends and family in the area. Several friends and neighbors are prepared to risk their own money to assure that Mr. Francis appears in court in this case. There is no record that Mr. Francis has ever failed to appear for any of the many court proceedings in his life.
Mr. Francis proposes that standard conditions of pretrial release, supplemented by home detention with electronic monitoring and drug tests, should be sufficient to protect the public and to assure his appearance in court. Mr. Francis testified that he would comply with any conditions the court might set, that he would appear for any court proceedings, and that he had learned his lesson and would not use drugs again. Mr. Francis' wife and a friend also testified that he was not a threat and that he would appear for any court proceedings. The government stipulated that several other friends and family members would have testified to the same effect.
Notwithstanding these factors and the lack of recent criminal convictions, the court must also consider the evidence in the record relating to the pending charge. On March 19, 2001, law enforcement officers executed a search warrant at Greenwood Auto Sales, where Mr. Francis was the manager. Officers found about 500 grams of a substance containing methamphetamine under a couch in the building (though apparently not in Mr. Francis' own office). The officers also found two shotguns without barrels and an electronic scale suitable for drug trafficking. Mr. Francis was carrying about $8,000 in cash, hypodermic needle caps, and about one ounce of a substance containing cocaine. When questioned by officers, Mr. Francis initially denied knowledge of the methamphetamine in the building, but he admitted he had intended to buy methamphetamine from others who had fled. Later, however, he signed a document claiming ownership of the methamphetamine.
Still later that day, law enforcement officers executed a search warrant at Mr. Francis' home in Brown County. Officers found 67 firearms, including an AK 47, rifles, shotguns, and handguns. They also found a small electronic scale suitable for the drug trade, and approximately 30 hypodermic needles. Mr. Francis told officers that he knew he could not possess firearms as a convicted felon. Although he told the officers that many firearms belonged to his wife, he admitted that he had obtained or purchased some of the firearms personally and that he had fired a number of them on his property.
Mr. Francis was arrested on state charges on March 19, 2001. The state court then released him on bond. When Mr. Francis was arrested on federal charges on April 12, 2001, he was given a drug test. He tested positive for cocaine, indicating that he had been using cocaine while released on bond from the state court. That fact is a powerful statement about his ability and/or willingness to comply with conditions of pretrial release.
Mr. Francis has a long criminal history. In addition to the felony convictions noted above (and disregarding two felony convictions that were later reversed on appeal), he has six prior misdemeanor arrests and three convictions, including escaping an officer, promoting professional gambling, and public drunkenness. Mr. Francis also has a substantial record of parole violations under the former federal parole system, including arrests and new criminal violations, and leaving the district without permission. In this case, at the age of 55, he faces the prospect of a long sentence regardless of how the issues under 18 U.S.C. § 924(e) are ultimately resolved.
After considering all this evidence, the court concurs with Magistrate Judge Foster's bottom line in ordering detention before trial. Notwithstanding the testimony from Mr. Francis and his wife and friends to the effect that this time things will be different, his past criminal record and the evidence of continuing criminal conduct in this case, which blends drugs and guns, demonstrate by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of the community or Mr. Francis' appearance at trial.
The court is confident that Mr. Francis assured the state court in March that he would comply with conditions of his bond. Less than a month later, he was using cocaine again. That action speaks much louder than the words of Mr. Francis' testimony. Accordingly, defendant's motion to revoke the detention order is hereby denied.
So ordered.