US v. Powell, 92-108-J.

• Decision Date: 25 November 1992
• Docket Number: No. 92-108-J.,92-108-J.
• Citation: 813 F. Supp. 903
• Parties: UNITED STATES of America v. Charles POWELL.
• Court: U.S. District Court — District of Massachusetts

813 F. Supp. 903

UNITED STATES of America v. Charles POWELL.

No. 92-108-J.

United States District Court, D. Massachusetts.

November 25, 1992.

Asst. U.S. Atty. Ralph Boyd, for U.S.

Norman Zalkind, Zalkind Rodriguez Lunt & Duncan, Boston, MA, for Powell.

ORDER ON DETENTION

ALEXANDER, United States Magistrate Judge.

The defendant was arrested on November 3, 1992, pursuant to a warrant issued subsequent to a complaint charging that he violated 18 U.S.C. § 922(g)(1) (felon in possession of a firearm). That day, the defendant had his initial appearance before this Court. Assistant United States Attorney Ralph Boyd represented the government. The government stated the charges and noted that the defendant faces a maximum penalty of ten years of incarceration, a $250,000 fine and a $50 special assessment, but that he would also be eligible for enhancement as a career criminal to a maximum term of lifetime incarceration. The government moved to detain the defendant pursuant to 18 U.S.C. § 3142(e), requesting a hearing pursuant to § 3142(f)(1)(A) (crime of violence), § 3142(f)(1)(D) (recidivist offender), § 3142(f)(2)(A) (risk of flight) and § 3142(f)(2)(B) (danger of obstruction of justice).¹ This Court appointed counsel for the defendant, and the government moved for a continuance, which this Court granted.

This Court reconvened on November 6, 1992, to conduct a detention and probable cause hearing. The defendant was represented by Attorney Norman Zalkind. Assistant United States Attorney Ralph Boyd again represented the government.

The government called as its only witness Special Agent Daniel E. Campbell of the Bureau of Alcohol, Tobacco and Firearms ("ATF"), who had written the affidavit accompanying the complaint. The substance of his credible testimony is as follows.

On October 7, 1992, at approximately 2:35 p.m., Boston Police officers for Area B responded to reports of gunshots being fired in the area of Humbolt Avenue, in Roxbury. Officers discovered three victims who had been shot in the area of 197 to 207 Humbolt Avenue. They found Stanley Owens, lying down in front of 207 Humbolt Avenue, with gunshot wounds to the chest, arm and leg. The wounds, which proved fatal, were incurred from shells discharged by a .44 caliber firearm. The other victims were Victoria Williams and Judith Day. The former had incurred a gun-shot wound to the right foot; the latter had incurred a gunshot wound to the right leg.

Approximately one half hour later, police officers received information that a man of the defendant's description was traveling on Homestead Street near the scene of this crime. The defendant was apprehended in the rear of 111 Homestead Street, near the corner of Humbolt Avenue and Homestead Street. This location was approximately one block from the scene of the shooting. Powell appeared to match a description given by eye witnesses of one of the perpetrators of the shooting. He had suffered a gunshot wound to the left leg and was holding a .44 caliber Charter Arms revolver. Police officers also recovered two discharged .44 caliber casings at the shooting scene.

A police ballistics test compared a bullet fired from the firearm with one taken from the chest of Stanley Owens. The test revealed the two bullets to have been fired from the same firearm—the one recovered from the defendant. Agent Campbell spoke to ATF Agent Al Offringa, who determined that the firearm had travelled in interstate commerce. Agent Campbell conducted a record check. This search revealed that the defendant was convicted in 1986 of conspiracy to distribute cocaine and heroin, a crime punishable by a term of imprisonment exceeding one year. Upon booking and fingerprinting, the defendant gave his name as Charles Powell, with the date of birth of September 18, 1961. Records revealed that, upon the arrest leading to the 1986 conviction of Charles Powell, the defendant in the 1986 case had used the alias of John Williams.

Police officers conducted a search pursuant to a search warrant, of an apartment believed to be that of the defendant. Officers observed the names C. Powell and A. Bodkins on the apartment. The apartment contained two bedrooms. The search revealed a .9mm Taurus semi-automatic pistol bearing an obliterated serial number, a .38 caliber derringer, a magazine (clip) containing .9mm ammunition, fourteen .38 caliber rounds of ammunition and personal papers, photographs and clothing belonging to the defendant. Both weapons were loaded. The derringer was located in the bedroom of an infant.

On cross-examination, Agent Campbell testified that a murder charge against the defendant for the shooting of Stanley Owens was dismissed without prejudice from the Roxbury District Court. He also noted that the weapons are currently undergoing fingerprint analysis and that no results have been received.

The defendant made a proffer to the effect that the defendant was not trying to shoot anyone and that, if he had shot anyone, it was in self defense.

Based on the credible testimony and affidavit of Agent Campbell, this Court finds probable cause to believe that the defendant committed the crime as charged. This Court turns next to the issue of detention. Pursuant to the Bail Reform Act of 1984, this Court shall detain a criminal defendant pending trial upon a determination that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community...." 18 U.S.C. § 3142(e). This determination is predicated upon the government's "showing of dangerousness or risk of flight." United States v. Montalvo-Murillo, 495 U.S. 711, 717, 110 S.Ct. 2072, 2077, 109 L.Ed.2d 720 (1990). Because of the interference of pretrial detention with the "important and fundamental ... right" of liberty, United States v. Salerno, 481 U.S. 739, 750, 107 S.Ct. 2095, 2103, 95 L.Ed.2d 697 (1987), despite the presumption of innocence pending trial, id., 481 U.S. at 762-63, 107 S.Ct. at 2109-10 (Marshall, J., dissenting) (quoting 18 U.S.C. § 3142(j)), this Court will not make such a finding lightly.

As the First Circuit has noted, the Bail Reform Act of 1984's authorization of detention on grounds of dangerousness "represented a watershed in the criminal law." United States v. Tortora, 922 F.2d 880, 884 (1st Cir.1990). In upholding the constitutionality of pretrial detention on grounds of dangerousness, the Supreme Court emphasized that the Bail Reform Act "carefully limits the circumstances under which detention may be sought to the most serious crimes." Salerno, 481 U.S. at 747, 107 S.Ct. at 2101 (citing 18 U.S.C. § 3142(f)). The First Circuit has elaborated on this circumscription, by noting that "release can be denied on dangerousness grounds alone only when a person is charged with one of the crimes enumerated in 18 U.S.C. § 3142(f)(1)(A) through (D)." United States v. Ploof, 851 F.2d 7, 9 (1st Cir.1988) (holding that danger of defendant obstructing unrelated court proceedings and plotting to kill persons unrelated to instant court proceeding are not grounds for pretrial detention); see also United States v. Martorano, No. 92-26-J, Order on Detention, 1992 WL 73558, *2 (D.Mass. March 23, 1992). The other grounds for detaining, expressed in § 3142(f)(2)(A) and (B), address the risk of flight and the risk of obstruction of justice.

In this case, the government moved at the bail hearing for a detention hearing pursuant to § 3142(f)(1)(A), (f)(1)(D), (f)(2)(A) and (f)(2)(B). At the detention hearing, the government withdrew its motion under (f)(1)(D) and declined to present evidence under (f)(2)(B). That leaves this Court to consider risk of flight, pursuant to (f)(2)(A), and danger to the community, insofar as the motion for a detention hearing pursuant to (f)(1)(A) was proper.

Section 3142(f)(1)(A) authorizes holding a detention hearing if the defendant is charged with a crime of violence. To qualify as a crime of violence, a crime must be either (1) a crime involving the use or attempted use of force against the person or property of another; or (2) a felony posing a substantial risk that physical force would be used against the person or property of another. 18 U.S.C. § 3156(a)(4). This Court has noted that "there exists ... a stringent, albeit widely ignored, body of law in this Circuit on what constitutes a crime of violence." Martorano, 1992 WL 73558, at *2. Specifically, this Court has ruled that the felon in possession crime does not constitute a crime of violence. United States v. Whitford, No. 92-73-J, Order on Detention, 1992 WL 188815 (D.Mass. July 27, 1992). The government asks this Court to revisit the issue.

The government's argument is largely based on Judge Keeton's ruling that the felon in possession crime is a crime of violence. United States v. Phillips, 732 F.Supp. 255, 262-63 (D.Mass.1990). In Whitford, this Court provided the following analysis:

The holding of Phillips ... is cast in doubt by a tandem of recent decisions by the First Circuit. In United States v. Doe, 960 F.2d 221 (1st Cir.1992), the First Circuit held that being a felon in possession is not a "violent felony" for purposes of the federal sentencing guidelines. While this case did not involve the Bail Reform Act, in rejecting arguments that being a felon in possession is a violent felony, the court cited Phillips as exemplary of a line of reasoning it was choosing not to follow. Id. at 225 (citing, inter alia, Phillips, 732 F.Supp. at 262-63). More recently, in United States v. Bell, 966 F.2d 703 . . . (1st Cir. . . . 1992), the First Circuit extended this rationale, holding that being a felon in possession is not a crime of violence for purposes of the sentencing guidelines.

This rationale should extend further to cover the Bail Reform Act for two reasons. First, the definitions of the term "crime of violence" are substantially the same under the Bail Reform Act and the

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