Opinion
Case No. 03-M-3114-01,02
November 26, 2003
DETENTION ORDER
THIS CAUSE is before the Court upon the government's motion to detain the Defendants pursuant to 18 U.S.C. § 3142(f). The Defendants are charged in a criminal complaint with manufacture and possession of an unregistered destructive device in violation of 26 U.S.C. § 5861 (d), (f). I found probable cause to believe that the Defendants violated section 5861. After conducting a hearing pursuant to section 3142(f), I find that no conditions or combination of conditions of release can reasonably protect other persons and the safety of the community.
Inspector John E. Tucker of the Postal Inspection Service testified about his investigation of the Defendants. In summary, the Defendants admitted, and circumstantial evidence confirms, that they constructed explosive devices that they placed in an automobile and in a post office mail collection box on September 11, 2003. Tucker testified that the Defendants stated that they took this action in an attempt to implicate Alex Gonzalez, a person with whom they had previously worked, as the person who committed these crimes. Among other things, Dawn Jay stated that she gathered hair samples from Gonzalez's car and placed them under the tape used when making the devices to make it appear that Gonzalez had made the devices. Michael Jay stated that he made an anonymous call to the local postmaster stating that the package in the mail collection box was placed there by someone in a car bearing the license plate number of the car driven by Gonzalez.
An expert with Brevard County Sheriff's Office who responded to the scene when the explosive devices were located testified that each device consisted of a pipe filled with explosive powder, end caps and a fuse. He testified that the devices could be denoted by lighting the fuse, but that the devices could also accidentally detonate in many ways.
Several people appeared in Court who agreed to serve as third-party custodians for one or the other of the Defendants. Neither Defendant has a prior criminal history. Both are employed and live in Central Florida.
The Bail Reform Act Permits the Court to Conduct a Detention Hearing in this Case.
The Bail Reform Act specifies six instances in which a court must conduct a detention hearing. 18 U.S.C. § 3142(e), (f). Several courts have found that the United States must present evidence establishing that one of these bases for detention applies before a defendant can be detained. See, e.g., United States v. Singleton, 182 F.3d 7, 9 (D.C. Cir. 1999); United States v. Byrd, 969 F.2d 106, 109 (5th Cir. 1992); United States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988); United States v. Friedman, 837 F.2d 48, 49 (2nd Cir. 1988); United States v. Himler, 797 F.2d 156, 160 (3rd Cir. 1986). I find that this is a reasonable interpretation of the Bail Reform Act.
In this case, the United States bases its request for detention on 18 U.S.C. § 3142(f)(1), which permits detention in a case that involves a crime of violence. For purposes of section 3142, a "crime of violence" means, among other things, an 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." 18 U.S.C. § 3156(a)(4). Several courts have found that possession of a destructive device in violation of section 5861(d) is a crime of violence as defined in section 3156(a)(4). See United States v. Newman, No. 97-1294, 97-1295, 125 F.3d 863 (10th Cir. Oct. 1, 1997) (unpublished opinion); United States v. Dodge, 846 F. Supp. 181 (D. Conn. 1994); United States v. Kruszewski, No. 91-0031, 1991 WL 268684 (N.D. Ind. Dec. 10, 1991). These cases reasoned that "[p]ipe bombs are inherently dangerous weapons for which no peaceful purpose can be seriously suggested, regardless of whether the weapons actually are used.'" Newman, 125 F.3d at** 1 (quoting Dodge, 846 F. Supp. at 184); see also United States v. Jennings, 195 F.3d 795, 798 (5th Cir. 1999) and cases cited therein.
I find the reasoning of these courts to be persuasive. I know from my experience in criminal cases that destructive devices such as pipe bombs often explode during the attempt to make them, injuring the maker and persons and property within the range of the explosion. As such, manufacture or possession of a destructive device involves a substantial risk that physical force will occur against the person or property of another during the commission of the offense. Therefore, I find that manufacture or possession of a unregistered destructive device is a crime of violence as that term is used in section 3142(f)(1).
Because one of the factors permitting detention exists here, I must next determine whether any condition or combination of conditions of release will reasonably assure the safety of others and of the community.
The United States did not argue that the Defendants are a risk of flight.
Factors to be Considered In Evaluating Conditions of Release.
The Bail Reform Act sets forth factors that a court must consider in determining whether conditions of release can be set. 18 U.S.C. § 3142(g). In this case, the offense charged is a crime of violence, and the weight of the evidence is strong. The Defendants' history and characteristics show that neither of them had ever been involved in criminal activity. Indeed, nothing in their history would suggest that they would be involved in the activity at issue in this case. Yet, the evidence supports a conclusion each of them engaged in a deliberate attempt to implicate another person with criminal activity, in the process of which they manufactured dangerous explosive devices the mere possession of which risked injury to themselves and to others. Moreover, they chose September 11 as the date to carry out their plan. Nothing indicates that the choice of the date was mere fortuity. Rather, it is reasonable to infer that they knew that any reports of possible dangerous activity would be treated with considerable care on the anniversary of the terrorist attacks on the United States.
After reviewing the memoranda filed by counsel, listening to their arguments, and considering the facts before me, I find by clear and convincing evidence that the Defendants' release would pose a significant danger to persons or the community. The allegedly premeditated actions of the Defendants to implicate another in a crime raise serious concerns about what additional steps they might take to avoid conviction in this case, including the possibility of retaliation against prospective witnesses. The evidence suggests that they are willing and able to cany out any plans they formulate. Third-party custodians could not monitor the Defendants' activities at all times. For all of these reasons, I find that there are no conditions or combinations of conditions of release I could set that would reasonably protect the safety of the community if the Defendants are released.
It is, therefore, ORDERED as follows:
(1) The Defendants shall be detained pending trial and committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal;
(2) The Defendants shall be afforded reasonable opportunity for private consultation with counsel;
(3) On order of the United States or on request of an attorney for the Government, the person in charge of the corrections facility in which a Defendant is confined shall deliver the Defendant to a United States Marshal for the purpose of an appearance in connection with a court proceeding.