U.S. v. Moncrief, CR. 99-137-N.
Decision Date | 22 October 2003 |
Docket Number | No. CR. 99-137-N.,CR. 99-137-N. |
Parties | UNITED STATES of America v. Shirley MONCRIEF |
Court | U.S. District Court — Middle District of Alabama |
Louis V. Franklin, Sr., Terry F. Moorer, U.S. Attorneys, U.S. Attorney's Office, Montgomery, AL, for United States of America.
Barry Elvin Teague, Montgomery, AL, Susan Graham James, Denise Arden Simmons, Susan G. James & Associates, Jason James Baird, Slaten & O'Connor, PC, Montgomery, AL, for Shirley Moncrief.
On February 6, 2003, defendant Shirley Moncrief was convicted by a federal jury of being a felon in possession of a firearm, in violation of 18 U.S.C.A. § 922(g). On July 23, 2003, she was sentenced to a 50-month term of imprisonment, and was instructed to report to the Bureau of Prisons on September 3, 2003. Moncrief surrendered to federal custody on August 1, 2003. Moncrief now requests that she be released on bond pending appeal. For the reasons that follow, Moncrief's motion will be granted.
The Bail Reform Act of 1984, 18 U.S.C.A. § 3143, provides that the district court shall order detention of a person who has been convicted and sentenced to a term of imprisonment. Under § 3143, the court presumes that detention is valid despite a pending appeal, and the defendant bears the burden of overcoming that presumption and proving that release is appropriate. Morison v. United States, 486 U.S. 1306, 108 S.Ct. 1837, 100 L.Ed.2d 594 (1988) (Rehnquist, Circuit Justice); United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985) (per curiam), cert. denied, 479 U.S. 1018, 107 S.Ct. 669, 93 L.Ed.2d 721 (1986). In order to grant a defendant's motion for release pending appeal, the district court must make the following findings:
18 U.S.C.A. § 3143(b)(1). The burden of proving these findings lies with the defendant. Giancola, 754 F.2d at 901.
The Eleventh Circuit Court of Appeals has defined a substantial question of law for purposes of § 3143 in the following manner:
Giancola, 754 F.2d at 901. In order to be released pending her appeal, then, Moncrief would have to show by clear and convincing evidence that she is not a flight risk or a danger to the community or appealing for the sake of delay, and that she is raising a substantial question of law on appeal that is likely to result, for example, in reversal or new trial.
In this case, the court has repeatedly found that Moncrief is not a flight risk or a danger to the community. Moncrief was free on bond pending trial for almost a year, and when her conviction was vacated she was released again pending retrial. This court also found she was not likely to pose a danger or to flee when it ordered her released after her sentencing pending voluntary surrender. Therefore, the court finds by clear and convincing evidence that Moncrief is not a flight risk, nor a danger to society.
The court thus turns to the second question: whether Moncrief's appeal raises a substantial issue or is pursued merely for delay. Moncrief was convicted by a federal jury after a trial lasting 13 days, in which two other defendants were joined. This was the second trial that Moncrief faced; her first trial resulted in a conviction, but that conviction was vacated by this court. To say the least, this second trial was complex and presented thorny legal issues. In an order granting Moncrief's codefendant Clarence Clay's motion to remain on bond pending appeal, this court held that some of the issues Clay raised were "substantial" and presented "close questions."1 Moncrief now raises one of the same issues, and accordingly this court holds again that it is a substantial question. Specifically, Moncrief maintains that the prosecutor improperly informed the grand jury (which issued the superceding indictment on which Moncrief's second trial was based) that Moncrief had been previously indicted and convicted of the charges pending in front of them. The court resolved this issue in the government's favor without the benefit of clear Eleventh Circuit precedent. Therefore, this issue on appeal presents a "substantial" question, as it "could be decided the other way." Giancola, 754 F.2d at 901. Further, if this issue were decided in Moncrief's favor, it would result in her sentence being vacated.
Defendants who are convicted of certain serious crimes cannot be released on appeal unless they make an additional showing. 18 U.S.C.A. § 3145(c) provides that "A person subject to detention pursuant to ... section 3143(b)(2), and who meets the conditions of release set forth in section 3143(a)(1) or (b)(1), may be ordered released, under appropriate conditions, by the judicial officer, if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate." This applies to, among others, a "crime of violence." 18 U.S.C.A. §§ 3143(b)(2), 3142(f)(1)(A). If "felon in possession of a firearm" is a "crime of violence" as the Bail Reform Act defines that term, then, Moncrief would have to show "exceptional reasons" why she should be released.2
The Bail Reform Act, 18 U.S.C.A. § 3156(a)(4), defines a "crime of violence" as follows:
The Eleventh Circuit Court of Appeals has not ruled on this precise issue, but has held, in interpreting a different statute with substantially the same definition of "crime of violence," that "felon in possession of a firearm" was not a "crime of violence." United States v. Flennory, 145 F.3d 1264, 1268 (11th Cir.1998), overruled on other grounds, United States v. Brown, 332 F.3d 1341 (11th Cir.2003). The statute at issue in Flennory, 18 U.S.C.A. § 924(c)(3), defines "crime of violence" thus:
This definition varies slightly from that in § 3156(a)(4). However here, these differences are not relevant to the question of whether "felon in possession of a firearm" is a "crime of violence," because this offense fits only the definitions of § 924(c)(3)(B) and § 3156(a)(4)(B), and these sections contain the same language; they both define a "crime of violence" as a felony 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."
In finding that "felon in possession of a firearm" was not a "crime of violence" within the meaning of § 924(c)(3), the Eleventh Circuit relied upon, and thus appears to have found persuasive the reasoning of, the decision of the Ninth Circuit Court of Appeals in United States v. Canon, 993 F.2d 1439 (9th Cir.1993). In Canon, the Ninth Circuit reasoned that "[c]ommission of the crime [of felon in possession of a firearm] requires no act other than possession of the firearm nor, consistent with interpretations given similar provisions, does it pose a `substantial risk' that physical force may be used against a person or property." Id. at 1441. That reasoning applies with equal force here.
Additionally, the majority of federal courts of appeals to consider whether a conviction for "felon in possession of a firearm" is a "crime of violence" under § 3156(a)(4) have found that it is...
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