U.S. v. Powers

• Decision Date: 16 April 2004
• Docket Number: No. CIV.A. 704CR34.,CIV.A. 704CR34.
• Citation: 318 F.Supp.2d 339
• Parties: UNITED STATES of America, Plaintiff v. Joseph Francis POWERS, Defendant
• Court: U.S. District Court — Western District of Virginia

Page 339

318 F.Supp.2d 339

UNITED STATES of America, Plaintiff v. Joseph Francis POWERS, Defendant

No. CIV.A. 704CR34.

United States District Court, W.D. Virginia, Roanoke Division.

April 16, 2004.

Ronald Andrew Bassford, United States Attorneys Office, Roanoke, VA, Counsel for Plaintiff.

Edward Scott Austin, Gentry Locke Rakes & Moore, Roanoke, VA, Counsel for Defendant.

MEMORANDUM OPINION

URBANSKI, United States Magistrate Judge.

I. OVERVIEW

Joseph Francis Powers, a convicted felon, is charged in a four count indictment for possessing at his residence in Union Hall, Virginia more than sixty (60) firearms, many lacking serial numbers, large quantities of ammunition and a package of military grade C-4 plastic explosives. Powers seeks pretrial release but, as yet, the court is left with nothing but questions as to the possession by a felon of such large quantities of firearms, ammunition and military grade explosives.

II. PROCEDURAL AND FACTUAL BACKGROUND

At the hearing conducted on April 2, 2004, the question was raised whether it is appropriate to hold a detention hearing in this case given the nature of the charges in the criminal complaint. At the time of the hearing, Powers was charged in a criminal complaint with violations of 18 U.S.C. § 922(g), commonly known as the felon in possession statute, and 18 U.S.C. 842(i)(1), concerning unlawful possession of explosives.¹

In 1976, Powers was convicted in the United States District Court for the Southern District of New York of two felonies concerning violations of the federal firearms laws: 1) a violation of the gun control act, and 2) possession of an unregistered weapon.

On March 15, 2004, a search warrant was issued to search Powers' residence in Union Hall, Virginia. Upon execution of the search warrant on March 16, 2004, five firearms were found in Powers home, and 56 firearms were found in a conex storage trailer on Powers' property. Many of these firearms bore no serial numbers. Also located in the conex storage trailer were some containers of ammunition and a block of C-4 military grade plastic explosive.

At Powers' initial appearance on March 17, 2004, the United States moved to detain Powers based largely on the danger to the community posed by the unexplained presence of large numbers of firearms and military grade plastic explosives. ATF Agent J.D. Underwood testified regarding execution of the search warrant and the location of and condition of the firearms, ammunition and military grade plastic explosives. Underwood testified that the search revealed no militia-type materials, but noted that papers were found concerning efforts by Powers to restore his ability to own and possess firearms.

Powers called no witnesses or presented any evidence at the initial appearance, but his counsel suggested that the firearms were in the nature of Powers' retirement investment, and that certain of the items in the container may have at one time belonged to Powers' father, who was reported to have had some sort of demolition or explosives experience. At the initial appearance, the United States indicated that it was investigating the origin of the C-4 military grade plastic explosives. The initial pretrial services report indicated that some conditions of release were possible, but the probation officer indicated that the report was prepared before he became aware of the large quantities of firearms, ammunition and C-4 military grade plastic explosives on Powers' premises.

Because of the unexplained presence of dozens of firearms, many without serial numbers, large containers of ammunition, and C-4 military grade plastic explosives at the residence of a convicted felon, the court detained Powers, finding that there were no conditions or combinations of conditions that would adequately assure that Powers would appear at trial or pose no danger to any other person or the community. A written detention order was entered on March 22, 2004.

At the subsequent April 2, 2004 bail review hearing requested by Powers, scant evidence was presented. Powers provided written information regarding his honorable discharge from the Army National Guard and Reserves in 1965 and regarding his claimed medical disability. For its part, the government reported that the C-4 military grade plastic explosives dated from the late 1970s and were last traced to a United States military installation. No information was provided as to how the C-4, manufactured for the exclusive use of the United States military, came into Powers' possession. At the April 2, 2004 hearing, Powers was given an opportunity to put on evidence regarding conditions of pretrial release, but Powers requested that he be allowed to put on such evidence at a date in the future.

Also at the April 2, 2004 hearing, at the court's request, oral argument was heard on the issue of whether a person charged under the felon in possession statute constitutes a crime of violence for the purposes of conducting a detention hearing under 18 U.S.C. § 3142(f). The court requested post argument briefs which were submitted on April 7, 2004.

III. LEGAL ANALYSIS

A. Statutory Bases for Holding Detention Hearings.

Both the United States and Powers accurately recognize that under the Bail Reform Act of 1984 a detention hearing is authorized only under one of the six statutory bases set out in 18 U.S.C. § 3142(f). Absent application of one of these statutory bases for holding a detention hearing, pretrial detention is not warranted.

Note that a case is not necessarily eligible for a detention hearing merely because defendant is generally a risk to other persons or to the community. The case must fit one of the six eligibility categories. "Congress did not intend to authorize preventive detention unless the judicial officer first finds that one of the § 3142(f) conditions for holding a detention hearing exists." U.S. v. Ploof, 851 F.2d 7, 11 (1st Cir.1988). Accord U.S. v. Friedman, 837 F.2d 48, 49 (2d Cir.1988); U.S. v. Byrd, 969 F.2d 106 (5th Cir.1992).

Weinberg, Federal Bail and Detention Handbook, § 7.04, at 7-12 (PLI, Rel. No. 16, 2004).

After initially contending that a detention hearing may be held for any person posing a danger to the community, the United States now asserts that a detention hearing is appropriate in this case because a felon in possession is a crime of violence under 18 U.S.C. § 3142(f)(1)(A). Powers contends that detention is not appropriate because the crime charged is not a crime of violence, and thus there is no basis for a detention hearing under § 3142(f).

In fact, two prongs of § 3142(f) are in play as regards Powers. First, under § 3142(f)(1)(A), a detention hearing may be held if the crime charged is a crime of violence. Powers and the United States disagree as to whether the crimes charged fall within this category, and the court will address those arguments herein. Second, a detention hearing may be held if either the United States or the court believes there is a serious risk of flight. 18 U.S.C. § 3142(f)(2)(A). The detention order entered on March 22, 2004 expressly recognized that a risk of flight existed in this case. Powers has indicated that he intends to present evidence to rebut this finding at a hearing to be held in the future. A serious risk of flight always justifies the holding of a detention hearing, allowing both parties an opportunity to present evidence on the factors to be considered under § 3142(g). For this reason alone, a detention hearing is warranted in this case, and Powers will be given an opportunity to demonstrate that his pretrial release does not pose such a risk.

B. Appropriateness of Detention Hearing Under § 3142(f)(1)(A).

Certainly, the focus of the government's case is the danger to the community posed by a felon in possession of large quantities of firearms, ammunition and C-4 military grade plastic explosives. The government now contends that a felon in possession charge categorically authorizes a detention hearing.

There is a split of authority on this issue. The Second Circuit has held that a felon in possession charge authorizes a detention hearing, United States v. Dillard, 214 F.3d 88 (2nd Cir.2000), while the D.C. Circuit, Seventh Circuit and Ninth Circuits do not. See United States v. Singleton, 182 F.3d 7 (D.C.Cir.1999); United States v. Lane, 252 F.3d 905 (7th Cir.2001); United States v. Twine, 344 F.3d 987 (9th Cir.2003). The court finds the reasoning and analysis of the Second Circuit in Dillard more persuasive than the Singleton line of cases. To follow the Singleton approach would not allow the court to hold a detention hearing "no matter how obviously dangerous or how bent on committing an act of violence or terrorism the felon in possession may be ... unless some other statutory basis for detention can be found." Dillard, 214 F.3d at 96. The Second Circuit reasoned further as follows:

We believe that had Congress explicitly focused on the issue it would have by far preferred the construction that subjects the felon illegally in possession to a detention hearing, following which he will be released if not found to be dangerous, than the construction that would mandate the release of all felons in possession regardless how clearly they endanger the community.

Our consideration of the precise words of the Act, coupled with the legislative history to aid in the interpretation of ambiguous provisions, leads us to the conclusion that the crime of felon-in-possession under section 922(g)(1) falls within section 3156(a)(4)(B); "by its nature," the offense of illegal gun possession by a person previously convicted of a felony offense (not including business-regulating offenses), "involves a substantial risk that physical force ... may be used in the course of committing the offense." The vast majority of courts that have considered the question have agreed with this interpretation.

Id. at 97 (internal footnote citations omitted).

As the...