US v. Sloan, IP 93-0050M-01.

Citation820 F. Supp. 1133
Decision Date06 May 1993
Docket NumberNo. IP 93-0050M-01.,IP 93-0050M-01.
PartiesUNITED STATES of America, Plaintiff, v. Sam SLOAN, Defendant.
CourtUnited States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)

Timothy Morrison, Asst. U.S. Atty., Office of U.S. Atty., Indianapolis, IN, for plaintiff.

Timothy O'Connor, Indianapolis, IN, for defendant.

ENTRY AND ORDER DETERMINING MENTAL COMPETENCY AND ORDER OF DETENTION

FOSTER, United States Magistrate Judge.

PROCEDURAL STATEMENT

This cause came before the Court for hearing on April 28, 1993 upon the defendant's return to this Court's jurisdiction following completion of a forensic report pursuant to this Court's order for determination of mental competency entered on March 3, 1993. Depending on the outcome of the hearing to determine mental competency, the Court intended to, and did, continue into a detention hearing. The Court now makes its findings and enters its Orders.

DETERMINATION OF MENTAL COMPETENCY

During the probable cause hearing held on February 19, 1993, the Court committed the defendant, Sam C. Sloan, to the custody of the Attorney General for the purpose of an examination and evaluation to be conducted pursuant to Title 18, U.S.C. §§ 4241, 4242 and 4247. Pursuant to the Court's order Mr. Sloan was transported to the Federal Correctional Institution at Milan, Michigan for examination and evaluation. On April 20, 1993 the Warden of that institution, by letter, notified the Court that the examination and evaluation of Mr. Sloan was concluded and enclosed a six-page written report of forensic evaluation ordered by the Court.

The Defendant appeared in person with his court appointed counsel, Mr. Timothy O'Connor; the Government was represented by Mr. Tim Morrison, Assistant U.S. Attorney, Special Agent Dwight Rapp, ATF, appeared as the agency representative; and Mr. Thomas Parker, U.S. Probation, also appeared. The Court took judicial notice of all prior pleadings and record of proceedings before the Court prior to the date of this proceeding. The Court marked the Warden's letter dated April 20, 1993 as Court's Exhibit 1 for April 28, 1993 and the six-page forensic report was marked as Court's Exhibit 2 for April 28, 1993. By those references the Court's Exhibits 1 and 2 for April 28, 1993 were admitted in evidence without objection by either the defendant or the United States.

The issue for determination is whether the defendant, Sam C. Sloan, was at the time of his first appearance and may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. The Court, after full review of the Court's prior pleadings and record of proceedings, the Warden's letter and the contents of the forensic report, requested whether the United States or the defendant had additional evidence to submit. Neither the United States nor the defendant submitted any additional evidence and both rested upon the submission of the record before the Court.

The Court, now on consideration of the submitted record finds by a preponderance of the evidence that the defendant is mentally competent to the extent that he is able to understand the nature and the consequences of the proceedings against him and to assist properly in his defense.

On March 3, 1993 the Court also ordered the examination and evaluation to determine whether the defendant was insane at the time of the alleged offenses charged in the complaint. The report additionally deduced that Mr. Sloan was sane at the time of the alleged offenses. Neither the finding of competency or of sanity herein shall, pursuant to Title 18, U.S.C. § 4241(f), prejudice the defendant in raising the issue of his sanity as a defense to the charged offenses. Likewise, the Court's findings regarding competency and sanity shall not be admissible as evidence in the trial, if any, for the offenses charged in the Complaint. Should an indictment be returned charging the defendant with offenses identical to, or anyway related with, those contained in the Complaint in this matter, the undersigned United States Magistrate Judge recommends to the District Judge upon whose docket and calendar that case is randomly drawn, the adoption of this Entry.

DETENTION

The Court, having found the defendant competent as previously set forth in this Entry, proceeded to consider the issue of detention or release in accordance with Title 18, U.S.C. § 3141 et seq. For purposes of the detention hearing the Court restated that it was considering as the submitted record all pleadings, exhibits, entries, testimony, and papers contained in the Clerk's file and the Court's record. The Government then rested as did the defendant without the submission of any additional evidence or proffer. The defendant is charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and with possessing an unregistered firearm, namely a "sawed-off" shotgun, in violation of 26 U.S.C. § 5861(d).

The Bail Reform Act of 1984, Pub.L. 98-473, Title II, § 203(a), 98 Stat. 1976, as amended, 18 U.S.C. § 3141 et seq., makes pretrial detention available in six circumstances: (1) when the defendant is charged with a crime of violence, 18 U.S.C. § 3142(f)(1)(A); (2) when the defendant is charged with a crime for which the maximum sentence is life imprisonment or death, § 3142(f)(1)(B); (3) when the defendant is charged with an offense for which a maximum term of imprisonment of ten years or more is prescribed under the Controlled Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App. § 1901 et seq.), § 3142(f)(1)(C); (4) when the defendant is charged with any felony and he has been convicted of at least two offenses listed above (§ 3142(f)(1)(A) through (C)) or at least two State or local offenses which would have constituted those offenses if federal jurisdiction existed, or a combination of these offenses, § 3142(f)(1)(D); (5) there is a serious risk that the defendant will flee, § 3142(f)(2)(A); or (6) there is a serious risk that the defendant will, or will attempt to, obstruct justice or threaten, injure, or intimidate a prospective witness or juror, § 3142(f)(2)(B). The United States moved for pretrial detention under the first and fifth circumstances (§ 3142(f)(1)(A) and (f)(2)(A)), asserting that the charged offenses are crimes of violence and there is a serious risk that the defendant will flee. For the reasons given below, I find that being a felon in possession of an unregistered sawed-off shotgun are crimes of violence and that there is a serious risk that the defendant will flee. I further find that pretrial detention is available in this case under § 3142(f)(1)(D) as well in that the defendant is charged with a felony and has a record of at least two prior State convictions for crimes of violence.1

During these proceedings, the Court orally reviewed the case law and made findings of facts and conclusions of law regarding the legal definition of a crime of violence as found in Title 18, U.S.C. §§ 16, 924(c)(3), and 3156(a)(4). The Court incorporates its oral statements as if set forth here in support of this finding.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The Court has found that there is probable cause to believe that the defendant, Sam C. Sloan, possessed an unregistered sawed-off, 12 gauge shotgun after being convicted of felonies, in violation of Title 18, U.S.C. § 922(g) and Title 26, U.S.C. § 5861(d).

2. The prior State convictions which serve as the prerequisites for the 18 U.S.C. § 922(g) (felon in possession) complaint against the defendant are criminal recklessness and dealing in a sawed-off shotgun, both Class D felonies in Indiana. These convictions were entered in Marion County, Indiana on October 10, 1991.

3. The Court concludes that both of the charges against the defendant, viz. being a felon in possession of an unregistered sawed-off shotgun, are, under the facts of this case, crimes of violence.

4. A "crime of violence", for the purposes of § 3142, is defined as:

(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 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.

18 U.S.C. § 3156(a)(4). Since neither the offense of being a felon in possession of a firearm nor the offense of being in possession of an unregistered firearm includes an element of physical force, these offenses may constitute crimes of violence only if, by their nature, they involve a "substantial risk that physical force against the person or property of another may be used." 18 U.S.C. § 3142(a)(4)(B).

In United States v. Chapple, 942 F.2d 439 (7th Cir.1991), the Seventh Circuit addressed the definition of a "crime of violence." The defendant in Chapple was charged under 18 U.S.C. § 922(g) for being a felon and having a loaded handgun tucked into the waistband of his trousers while riding in a taxi. The Court declined to follow decisions holding that possession alone constitutes a crime of violence and refused to extend the definition beyond "the general rule" that "possession of a weapon plus some overt action implying or indicating its use is a crime of violence." Id. at 441. Even given Chapple's broad interpretation of "overt action",2 there is no evidence or allegation in this case that the defendant made any overt act implying or indicating use of the subject sawed-off shotgun.3 I conclude, however, that Chapple is distinguishable from this case.

a. The Court in Chapple was interpreting the definition of a "crime of violence"...

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