United States v. Stratton, CR 00-0431 PHX SMM), CR 01-0152 PHX SMM (D. Ariz. 4/24/2001)
| Decision Date | 24 April 2001 |
| Docket Number | CR 00-0431 PHX SMM), CR 01-0152 PHX SMM. |
| Parties | United States of America, Plaintiff, v. Earl B. Stratton, Defendant. |
| Court | U.S. District Court — District of Arizona |
Counsel for the Government and defense counsel make strong arguments, respectively, for the continued detention or release of the Defendant. The Government argues, among other things, that, if released, the Defendant, now diagnosed with a terminal disease, "has nothing to lose by settling any old grudges, or if medical treatment becomes too painful or difficult that he would prefer to exit this world by use of a firearm at his own hand or engage in `suicide by cop.'"1 The prosecutor argues that, given his history of illegal possession of firearms, until such time as a medical professional indicates that the Defendant's medical condition is such that he is physically incapable of handling a firearm, he should remain detained as a danger to the community and Deputy Sheriff Glass.2 The Government has also sought the detention of the Defendant on the grounds that he is a serious flight risk.
Defense counsel, on the other hand, argues that the Defendant's sister, Margo Bowman, now willing to care for him and act as third party custodian, has found a place for the Defendant to live out his shortened life expectancy. She has secured an apartment right across the street from her residence which would permit her to provide for his meals and other living needs, to provide him transportation for medical and other legitimate purposes, and to supervise him to ensure compliance with his conditions of release. Counsel argues that his client is a dying man and should be given the normal opportunity to make amends with his family and die in peace rather than in a federal detention facility when he is harmless and a danger to no one.
After considering all the evidence, the arguments of counsel, the controlling and persuasive authorities on the issues sub judice and all the factors set forth in 18 U.S.C. § 3142(g), the Court FINDS the following to be true by a preponderance of the evidence:
1. Since the Defendant was initially indicted in CR00 — 0431 PHX SMM on May 2, 2000 and the first detention hearing held before the undersigned on July 13, 2000, the Defendant has been charged by Superseding Indictment3 with, among others, three counts of Possession of a Firearm by a Convicted Felon [18 U.S.C. § 922 (g)(1)]. A single count Indictment of Possession of an Unregistered Firearm, to wit: a sawed-off shotgun [26 U.S.C. § 5861(d)] was also returned against the Defendant on February 22, 2001 in CR 01-0152 PHX SMM. All of these charges are felonies.
2. That the Government agrees, and this Court concurs, that there has been a material change in circumstances since Defendant's detention hearing on July 13, 2000 to warrant reconsideration of detention4 in CR00 — 0431 PHX SMM which hearing the Court has combined with Defendant's detention hearing on the more recent Indictment. Specifically, Defendant has been diagnosed with terminal cancer5 for which he underwent surgical resection of a mass in the left temporal area. He is actively undergoing medical treatment at the Tucson Medical Center in Tucson, Arizona while in custody. This disease was not known to the Defendant at the time of the first detention hearing herein and has a material bearing on the issue of release.
3. Although not specifically addressed by the Ninth Circuit to date, the language of the Bail Reform Act,6 and persuasive authority from the 5th Circuit,7 do not permit the Government to seek detention on the sole basis that a defendant is a danger to the safety of any other person or the community unless the crime charged is a "crime of violence" as technically defined in the Bail Reform Act. See, 18 U.S.C. § 3142 (f).
4. A "crime of violence" is defined in 18 U.S.C. § 3156(a)(4) for purposes of the Bail Reform Act as follows:
(A) an offense that has an element of the offense the use, attempted use, or threated 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;
(C) any other felony under chapter 109A [18 U.S.C.A § 2241 et seq.] 110 [18 U.S.C.A § 2251 et seq.], or 117 [18 U.S.C.A. § 2421 et seq.]" (Emphasis added).
5. The Ninth Circuit Court of Appeals has consistently held that the crime of Unlawful Possession of a Firearm by a Felon is not a "crime of violence" for purposes of sentencing. See, United States v. Sahakian, 965 F.2d 740 (9th Cir. 1992); United States v. Canon, 993 F.2d 1439 (9th Cir. 1993); United States v. Cantu, 12 F.3d 1506 (9th Cir. 1993); United States v. Stephens, 237 F.3d 1031 (9th Cir. 2001).8
6. The Ninth Circuit Court of Appeals has yet to establish or consider whether the crimes of Unlawful Possession of a Firearm by a Felon and/or Possession of an Unregistered Firearm, to wit: a sawed-off shotgun, are "crimes of violence" for purposes of release or detention pursuant to the Bail Reform Act (18 U.S.C. § 3142).
7. At least one District Court in the Ninth Circuit has held that for purposes of the Bail Reform Act, the crime of possession of an unregistered firearm is, by its very nature, so inherently dangerous as to qualify as a "crime of violence." See, United States v. Spires, 755 F. Supp. 890 (D.C. Cal. 1991).
8. The Ninth Circuit has held that possession of an unregistered sawed-off shotgun is a "crime of violence" for purposes of sentencing. In United States v. Hayes, 7 F.3d 144, 145 (9th Cir. 1993), the Court stated:
". . . Because the statutory definition of Hayes' unregistered shotgun conviction does not involve the use, attempted use or threatened use of physical force against another, we focus solely on whether the charged conduct presented a serious potential risk of physical injury to another. See [United States v.]Young, 990 F.2d [469, 471, 9 Cir. 1993].
We conclude that in Hayes' case it does. As we said in United States v. Dunn, 946 F.2d 615, 621 (9th Cir.), cert. denied, 502 U.S. 950, 112 S.Ct. 401, 116 L.Ed.2d 350 (1991), and United States v. Huffhines, 967 F.2d 314, 321 (9th Cir. 1992); sawed-off shotguns are inherently dangerous, lack usefulness except for violent and criminal purposes and their possession involves the substantial risk of improper physical force. These attributes led Congress to require registration of these weapons. Huffhines, 967 F.2d at 321.
We hold that the conduct charged in the unregistered shotgun count of Hayes' indictment "presents a serious potential risk of physical injury to another." The district court found correctly that Hayes was convicted of a crime of violence for career offender purposes." (Emphasis added).
9. This Court adopts, as if fully set forth herein, the rational as the better-reasoned decision and slim majority rule9 that the crime of Possession of a Firearm by a Convicted Felon for purposes of the Bail Reform Act is a "crime of violence" as held and discussed in United States v. Dillard, 214 F.3d 88 (2d Cir. 2000). The Court hereby expressly rejects the minority view10 found in United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999) and other cases outside the Ninth Circuit.
In addition to the other reasons outlined in Dillard, supra, which will not be repeated herein, the term "crime of violence" should have a broader scope for public policy purposes in the pretrial detention context than it does with respect to sentencing issues because 1) there may be a greater risk to the community at the detention or beginning stage of the criminal process than at the sentencing stage as less is usually known about a defendant at this time, and 2) the Government is precluded by the language of 18 U.S.C. § 3142 from seeking detention on the basis that a defendant is a danger unless the charged crime is a "crime of violence" as defined in 18 U.S.C. § 3156(a)(4). In other words, absent this broader meaning of "crime of violence" or another reason existing to detain a defendant, i.e. a serious flight risk, the crime charged carries a maximum sentence of life imprisonment or death, the defendant has been convicted of two or more crimes of violence, or that the defendant will obstruct justice or threaten, injure or intimidate a prospective witness or juror, a defendant must be released no matter how dangerous that defendant is or may be. If a broader scope is permitted, the Court can then proceed with a detention hearing, requiring the Government to prove on a case-by-case basis by a clear and convincing standard whether the particular person before it is a danger to the community or a particular individual.
10. The Court concludes that the crime of Possession of an Unregistered Fiearm, to wit: a sawed-off shotgun, is also a "crime of violence" for purposes of the Bail Reform Act. See, United States v. Hayes, 7 F.3d 144, 145 (9th Cir. 1993).
11. That the Defendant is 64 years old, a resident of Arizona since 1964, has resided at one address (1026 So. 29 Ave, Phoenix) for approximately 20 years, is hearing impaired, is receiving Social Security Disability payments, has significant family ties to the Phoenix community and is dying of cancer.
12. That the Defendant is not likely physically able to flee and become a fugitive from justice but he does currently have the strength and mental capacity to physically possess and discharge a firearm.
13. That there is no evidence presented that the Defendant voluntarily failed to appear for any of his prior criminal court proceedings except for some failures to appear on traffic matters over thirty (30) years ago.
14. That prior to his arrest on the subject charges on June 19, 2000 and...
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