US v. Marzullo, 91-00097-01-CR-W-3

• Decision Date: 10 December 1991
• Docket Number: No. 91-00097-01-CR-W-3,91-00097-02-CR-W-3.,91-00097-01-CR-W-3
• Citation: 780 F. Supp. 658
• Parties: UNITED STATES of America, Plaintiff, v. Richard MARZULLO, and Donald Lee Sollars, Defendants.
• Court: U.S. District Court — Western District of Missouri

780 F. Supp. 658

UNITED STATES of America, Plaintiff, v. Richard MARZULLO, and Donald Lee Sollars, Defendants.

Nos. 91-00097-01-CR-W-3, 91-00097-02-CR-W-3.

United States District Court, W.D. Missouri, W.D.

December 10, 1991.

James A. Nadolski, St. Joseph, Mo., for Richard Marzullo.

Michael D. Gibbons, Kansas City, Mo., for Donald Lee Sollars.

Thomas H. Newton, U.S. Attorney's Office, Kansas City, Mo., for the U.S.

MEMORANDUM OPINION AND ORDER

ELMO B. HUNTER, Senior District Judge.

Defendants in the above-styled matter have, by separate filings,¹ challenged a prior finding by the Magistrate that defendants are ineligible to be released on bond pending sentencing. Both Defendants raise precisely the same question: Whether "arson" is a "crime of violence" under 18 U.S.C. §§ 3142, 3143 and 3156. This matter is a question of first impression in this Circuit.² This Court

CONCLUDES that the crime of "arson," as set forth in 18 U.S.C. § 844, amounts to a "crime of violence" for the purposes of 18 U.S.C. §§ 3142, 3143 and 3156.

BACKGROUND

On November 1, 1991, a jury found defendants Marzullo and Sollars guilty, inter alia, of one count of unlawfully destroying by fire a building used in an activity affecting interstate commerce in violation of 18 U.S.C. § 844(i). At the close of the trial, this Court directed the parties to appear before the United States Magistrate for consideration of pre-sentencing release on bond.

The applicable statute, and the one applied by the Magistrate, is 18 U.S.C. § 3143, which addresses conditions for release or detention of a defendant pending sentencing or appeal. The statute reads in pertinent part that:

(2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless —

(A)(i) the judicial officer finds that there is a substantial likelihood that a motion for acquittal or new trial will be granted; or

(ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and

(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or community.

18 U.S.C. § 3143(a)(2) (emphasis added). Since the additional conditions specified in sub-sections (2)(A) and (2)(B) do not apply in the present case, the Magistrate was bound to detain defendants if they had been found guilty of an offense described in sub-sections (A), (B) or (C) of 18 U.S.C. § 3142(f)(1). The offenses listed in those sub-sections include:

(A) a crime of violence;

(B) an offense for which the maximum sentence is life imprisonment or death; or

(C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act, ... the Controlled Import and Export Act, ... or the Maritime Drug Law Enforcement Act.

18 U.S.C. § 3142(f)(1) (emphasis added). The Magistrate found that "both defendants must be detained since they were found guilty of a crime of violence, namely arson." Mag's. Ord. (Doc. # 116), Nov. 13, 1991 at 2. The Magistrate buttressed this finding with the fact that the Sentencing Guidelines define arson as a crime of violence. Id.

Both defendants challenge the Magistrate's findings on the ground that, under 18 U.S.C. § 3143, arson, of the type for which they were charged, does not amount to a "crime of violence." As such, defendants urge that the Magistrate's Order be reversed and pre-sentencing bond set. This Court disagrees. Accordingly, Defendant Sollars' Objections to the Magistrate's Detention Order and Defendant Marzullo's Motion for Review are hereby DENIED as lacking merit.

ANALYSIS

A. Standard of Review

Section 3145 provides that when detention is ordered "by a magistrate, or by a person other than a judge of a court having original jurisdiction over the offense ..., the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order." 18 U.S.C. § 3145(b). This court reads the combined language indicating that a motion for "revocation or amendment" may be filed "with the court having original jurisdiction" to mean the district court should make a de novo review of the issue presented to the Magistrate. United States v. Koenig, 912 F.2d 1190 (9th Cir. 1990); see generally United States v. Maull, 773 F.2d 1479 (8th Cir.1985) (en banc). That is, this Court should thoroughly review the record before the Magistrate and make its own non-deferential determination as to whether the Magistrate's findings are correct.³ Accordingly, this Court will independently examine the issues raised by Defendants in their motions.

B. The Magistrate's Order

Defendant Marzullo argues that the Magistrate's determination that arson amounted to a crime of violence under 18 U.S.C. § 3142(f)(1) is error because the "legislative intent of the statute was to prevent the release of any individuals who have been convicted of a crime of a violent nature against individuals." Def. Marzullo's Mot.Rev. (Doc. # 115) at 3. Defendant Sollars further argues that the Magistrate "misapplied the law ... by relying on the sentencing guidelines' definition of `crime of violence' rather than the definition ... specifically set out in the statute." Def. Sollars' Objs. Det. Ord. (Doc. # 118) at 1-2. Sollars' reference is to the definition set forth at 18 U.S.C. § 3156, which states in pertinent part:

(a) As used in sections 3141-3150 of this chapter —

. . . . .

(4) the term "crime of violence" means —

(A) an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) any other offense that is a felon 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). Sollars' argument, by implication, is that the definition of "crime of violence" established by the sentencing guidelines (which the Magistrate relied on) is inconsistent with the statutory definition of "crime of violence" as found at 18 U.S.C. § 3156(a). We shall take these arguments up in order.

Defendant Marzullo, without the benefit of authority,⁴ asserts that the legislative intent of 18 U.S.C. § 3143(a)(2) indicates that the statute was aimed at individuals convicted of a crime of a violent nature against individuals. This argument must fail when one examines the statutory language itself. 18 U.S.C. § 3156 defines a "crime of violence" to include a felony involving a substantial risk that physical force will be used against the person or property of another. 18 U.S.C. § 3156 (emphasis added). The statute's own reference to "property of another" necessarily extends its sweep beyond just crimes of "a violent nature against individuals" as urged by Defendant Marzullo.

Defendant Sollars argues that the Magistrate erred in relying upon the definition of "crime of violence" contained in the sentencing guidelines, because § 3156 specifically sets forth the definition for "crime of violence" to be used in applying §§ 3142 and 3143 to determine if a particular defendant should be released on bond pending sentencing.

Implicitly, this argument requires the Court to find that the two definitions — the guidelines' definition and the definition in § 3156 — are inconsistent. Quite to the contrary, careful examination indicates that the guidelines' definition of "crime of violence" and § 3156's definition of "crime of violence" are joined at the root. In earlier incantations, the sentencing guidelines stated: "`crime of violence' as used in this provision is defined under 18 U.S.C. § 16." U.S.S.G. § 4B1.2(1) (1988). The Court notes that the definition of "crime of violence" set forth at 18 U.S.C. § 16 states, inter alia, that a "crime of violence" is "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 its commission and is in all pertinent parts identical to the definition set forth for "crime of violence" in 18 U.S.C. § 3156.⁵ The "Application Notes" under the Commentary goes on to interpret "Crime of Violence" as defined by 18 U.S.C. § 16 to include: "murder, manslaughter, kidnapping, aggravated assault, extortionate extension of credit, forcible sex offenses, arson, or robbery." U.S.S.G. § 4B1.2 Commentary (1988) (emphasis added). To this point, it would appear that the Magistrate's reliance upon the guideline definition is appropriate. Certainly, it is reasonable to conclude that Congress, in choosing to use the same language in enacting 18 U.S.C. § 16 and 18 U.S.C. § 3156 and choosing to enact them as part of the same bill on the same day, intended that both sections would mean the same thing. Accordingly, if arson is viewed as a "crime of violence" under § 16, it would seem appropriate to conclude that it is a "crime of violence" under § 3156.

Subsequent amendments to the guidelines do nothing to undo the above reasoning. Effective November 1, 1989, § 4B1.2(1), and its Commentary, were amended for the purpose of further clarification. U.S.S.G.App.C. at 110-11 (Nov. 1991) (emphasis added). The amendments deleted the reference to 18 U.S.C. § 16 and replaced it with the following:

(1) The term "crime of violence" means any offense under federal or state law punishable by imprisonment for a term exceeding one year that —

(i) has an element, the use, attempted use, or threatened use of physical force against the person of another, or

(ii) is burglary of a dwelling, arson, or extortion, involves use of explosives or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(1) and App.C. at...