United States v. Mitchell

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 94-1188

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  JAMES L. MITCHELL,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Mark L. Wolf, U.S. District Judge]
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                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Selya and Boudin, Circuit Judges.
                                            ______________

                                 ____________________

            Walter B. Prince and  Peckham, Lobel, Casey, Prince & Tye on brief
            ________________      ___________________________________
        for appellant.
            Donald  K. Stern,  United  States Attorney,  Sheila W.  Sawyer and
            ________________                             _________________
        Kevin J.  Cloherty, Assistant  United States Attorneys,  on brief  for
        __________________
        appellee.

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                                    April 13, 1994
                                 ____________________

Per  Curiam.   Following  his conviction  on two  arson-
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            related  offenses,  defendant  James  Mitchell   was  ordered

            detained  pending   sentencing  pursuant  to   18  U.S.C.    

            3143(a)(2).  He  now appeals from  this order, alleging  that

            the district court improperly  characterized his offenses  as

            "crimes of  violence" within the  meaning of the  Bail Reform

            Act.  For the reasons that follow, we affirm.

                 The  facts  giving  rise  to  these  convictions,  which

            defendant  does  not  dispute  for purposes  of  the  instant

            appeal,  can be summarized as follows.  Defendant was the co-

            owner  and operator of a  private club in  Boston named "Club

            297."   In January 1989, city officials ordered that the club

            be  closed  because  of  various  health  and  building  code

            violations.   Believing that there was  no realistic prospect

            of obtaining  approval to reopen, defendant  devised a scheme

            to burn the  building in order to collect insurance proceeds.

            In return for a promised $11,000 payment, defendant persuaded

            codefendant Ronald Wallace (a club employee) to set the fire.

            On  the  evening  of February  6,  1989,  in accordance  with

            defendant's  instructions,   Wallace   ignited  a   pile   of

            mattresses soaked  with kerosene.   The ensuing  blaze caused

            over  $500,000 in damages.  At least three other persons were

            in the  building at the time, one of whom had to be evacuated

            by the police.

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After a  14-day jury  trial, defendant was  convicted of

            conspiracy  to commit arson (in violation of 18 U.S.C.   371)

            and aiding and abetting  arson (in violation of 18  U.S.C.   

            844(i)  and  2).   Deeming these  offenses  to be  "crimes of

            violence"  as  defined  in   18  U.S.C.     3156(a)(4),1  the

            district court found that  defendant was subject to mandatory

            detention pending sentencing pursuant  to   3143(a)(2).2  The

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            1.  Section 3156(a)(4) reads as follows:

                 [T]he 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  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.

            2.  This provision, with its cross-reference to   3142(f)(1),
            provides in relevant part as follows:

                 The judicial officer shall  order that a person who
                 has been found guilty of  [a crime of violence] 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 the
                 community.

            18  U.S.C.    3143(a)(2).   While  the  court here  found  no
            likelihood of flight or danger under subsection (B),  it also
            found  pursuant to subsection (A) that a motion for new trial
            was unlikely to  be granted and that  a prison term  would be

                                         -3-

court thereafter postponed defendant's reporting date for two

            weeks  due   to   family  considerations,   relying  on   the

            "exceptional reasons" provision in   3145(c).  

                 On  appeal,  defendant's   sole  challenge  is   to  the

            determination   that  his  offenses   constituted  crimes  of

            violence.  He does  not dispute (as he apparently  did below)

            that the substantive crime of arson set forth in 18 U.S.C.   

            844(i)  is  embraced  by   this  term.3    Rather,  defendant

            contends  that  conspiring to  commit  arson  and aiding  and
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            abetting the  commission thereof--the crimes of  which he was
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            convicted--are  sufficiently  distinct  from  the  underlying

            substantive offense,  and are  sufficiently less culpable  in

            nature,  so as  to fall  outside the  definition of  crime of

            violence.   Defendant has  cited no  authority in  support of

            these assertions, and we find them unpersuasive.  

                 We  turn to  the aiding  and abetting  charge  first, as

            defendant's argument  in this regard  merits scant attention.

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            recommended. 

            3.  Any  such argument  would have  been  plainly unavailing.
            See,  e.g., United States v. Marzullo, 780 F. Supp. 658, 662-
            ___   ____  _____________    ________
            65 (W.D. Mo. 1991)  (finding arson to be an offense  that "by
            its nature  involves a  substantial risk that  physical force
            against  the person or  property of another  would be used");
            United States v. Shaker, 665 F. Supp. 698, 702 n.4 (N.D. Ind.
            _____________    ______
            1987) (same); cf.  United States  v. Lee, 726  F.2d 128,  131
                          ___  _____________     ___
            (4th  Cir.) (noting that arson was crime of violence under 18
            U.S.C.    1952(a)(2)),  cert. denied,  467 U.S.  1253 (1984);
                                    ____________
            U.S.S.G.   4B1.2(1)(ii)  (explicitly including "arson" within
            definition of "crime of  violence" for purposes of sentencing
            guidelines). 

                                         -4-

Defendant suggests that, because he did  not actually set the

            fire, he was  merely a "culpable intermediary" whose  role in

            the offense was  less flagrant  than that of  Wallace.   This

            contention, of course, flies in the face of the evidence that

            defendant initiated  and orchestrated the entire  scheme.  In

            any event,  the precise nature of  defendant's involvement is

            of  little  relevance,4 for  aiding  and abetting  "is  not a

            separate  offense"  from  the  underlying  substantive crime.

            United  States v. Sanchez, 917 F.2d 607, 611 (1st Cir. 1990),
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            cert. denied, 499 U.S. 977 (1991).  One who aids and abets an
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            offense  "is punishable as a  principal," 18 U.S.C.    2, and

            "the  acts of  the principal  become those  of the  aider and
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            abetter as a matter of  law."  United States v.  Simpson, 979
                                           _____________     _______

            F.2d 1282, 1285 (8th Cir. 1992) (emphasis in original), cert.
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            denied, 113 S. Ct. 1345 (1993).  Accordingly, as other courts
            ______

            have held in analogous circumstances, aiding and abetting the

            commission  of a  crime of  violence is  a crime  of violence

            itself.   See, e.g., United  States v. Groce,  999 F.2d 1189,
                      ___  ____  ______________    _____

            1191-92  (7th Cir.  1993)  (aiding and  abetting burglary  is

            "violent felony" under Armed Career Criminal Act, 18 U.S.C.  

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            4.  His conviction  on the aiding and  abetting charge means,
            at  a  minimum, that  defendant  "in  some sort  associate[d]
            himself  with the venture, that he participate[d] in it as in
            something that he  wishe[d] to bring about,  that he [sought]
            by  his action to  make it succeed."   United States v. Lema,
                                                   _____________    ____
            909 F.2d 561,  569 (1st Cir.  1990) (quoting Nye &  Nissen v.
                                                         _____________
            United States,  336 U.S. 613, 619  (1949) (internal quotation
            _____________
            omitted).  

                                         -5-

924(e)(1)); Simpson, 979  F.2d at 1285-86 (defendant,  having
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            aided  and abetted  bank robbery,  was subject  to sentencing

            enhancement under 18 U.S.C.    924(c)(1) for having aided and

            abetted  use of  firearm  during crime  of violence);  United
                                                                   ______

            States v. Hathaway,  949 F.2d  609, 610 (2d  Cir. 1991)  (per
            ______    ________

            curiam) (Vermont crime of third-degree arson, which prohibits

            "secondary acts  such as counseling, aiding  or procuring the

            burning," falls within "generic definition"  of arson offense

            and  so is "violent felony"),  cert. denied, 112  S. Ct. 1237
                                           ____________

            (1992). 

                 We  likewise  agree  with  the  district  court  that  a

            conspiracy to commit a crime of violence is itself a crime of

            violence.   As the Second Circuit explained  in United States
                                                            _____________

            v. Chimurenga, 760 F.2d 400 (2d Cir. 1985): "The existence of
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            a criminal  grouping increases  the chances that  the planned

            crime will be  committed beyond that  of a mere  possibility.

            Because  the conspiracy  itself  provides a  focal point  for

            collective criminal  action, attainment of  the conspirators'

            objectives becomes instead a  significant probability."   Id.
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            at 404  (emphasis in  original).  The  court therefore  found

            that  conspiracy  to commit  armed  robbery,  even though  an

            inchoate  crime,  was   nonetheless  an  act  "involving   'a

            substantial risk' of violence" and  so constituted a crime of

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violence  under the Bail Reform Act.5  Id. (quoting 18 U.S.C.
                                                   ___

              3156(a)(4)(B)); accord, e.g., United States v. DiSomma, 951
                              ______  ____  _____________    _______

            F.2d  494, 496 (2d Cir. 1991) (same); United States v. Dodge,
                                                  _____________    _____

            ___  F. Supp.  ___,  1994  WL  37960  (Mag.  D.  Conn.  1994)

            (conspiracy to possess silencer).

                 Under  analogous   provisions  of  the   criminal  code,

            numerous courts have employed the same reasoning to reach the

            same  result.6   See, e.g.,  United States  v. Kern,  12 F.3d
                             ___  ____   _____________     ____

            122, 126 (8th Cir.  1993) (conspiracy to commit bank  robbery

            is  crime of violence as  defined in 18  U.S.C.   16); United
                                                                   ______

            States  v.   Mendez,  992  F.2d  1488,   1491-92  (9th  Cir.)
            ______       ______

            (conspiracy to rob  is crime  of violence under  18 U.S.C.   

            924(c)(3)) (collecting  cases), cert. denied, 114  S. Ct. 262
                                            ____________

            (1993); United States v. Johnson, 962 F.2d 1308, 1311-12 (8th
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            Cir.) (   924(c); conspiracy  to commit bank  robbery), cert.
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            denied, 113 S. Ct.  358 (1992); United States v.  Patino, 962
            ______                          _____________     ______

            F.2d 263,  267  (2d Cir.)  (   924(c); conspiracy  to  commit

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            5.  The   Chimurenga  court  further   noted  that  pertinent
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            provisions of  the District  of Columbia Criminal  Code (upon
            which  the  Bail  Reform  Act  was  based)  define crimes  of
            violence  to include conspiracies.  760 F.2d at 404; see also
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            United  States v. Marzullo, 780  F. Supp. 658,  664 (W.D. Mo.
            ______________    ________
            1991). 

            6.  The definitions of crime  of violence in 18 U.S.C.     16
            and  924(c)(3), to which reference  is here made,  are in all
            relevant  respects identical  to that  in    3156(a)(4).   In
            particular, all three include the provision  relied on by the
            Chimurenga  court--i.e., an  offense  "that,  by its  nature,
            __________
            involves a  substantial risk that physical  force against the
            person or property of another may be used."   

                                         -7-

kidnapping),  cert. denied,  113  S. Ct.  354 (1992);  United
                          ____________                             ______

            States  v.  Greer, 939  F.2d 1076,  1099  (5th Cir.  1991) ( 
            ______      _____

            924(c);  conspiracy to  deprive  citizens of  civil  rights),

            aff'd  en banc, 968 F.2d  433 (5th Cir.  1992), cert. denied,
            ______________                                  ____________

            113 S. Ct. 1390 (1993); see  also United States v. Cruz,  805
                                    _________ _____________    ____

            F.2d 1464,  1474 n.11 (11th  Cir. 1986)  ("any conspiracy  to

            commit  a crime of violence"  would, by its  nature, create a

            "substantial risk of  violence") (dicta),  cert. denied,  481
                                                       ____________

            U.S.  1006 (1987).   But cf. United States  v. King, 979 F.2d
                                 _______ _____________     ____

            801 (10th Cir. 1992) (holding that conspiracy to commit armed

            robbery under  New Mexico  law was not  "violent felony"  for

            purposes of   924(e)). 

                 For these reasons, we  conclude that both of defendant's

            convictions--conspiracy  to  commit  arson  and   aiding  and

            abetting   the   commission  thereof--constitute   crimes  of

            violence  within the meaning of    3156(a)(4).7  As defendant

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            7.  We  note   that  a  similar  result   obtains  under  the
            sentencing guidelines, which specifically include both aiding
            and abetting and conspiracy within the definition of crime of
            violence.  See  U.S.S.G.   4B1.2  comment. (n.1); see,  e.g.,
                       ___                                    ___   ____
            United States  v. Carpenter, 11  F.3d 788,  790-91 (8th  Cir.
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            1993)  (conspiracy  to  commit  burglary);  United States  v.
                                                        _____________
            Fiore, 983 F.2d 1, 4 (1st Cir. 1992) ("conspiracy convictions
            _____
            can  serve as  predicate offenses  under the  career offender
            provisions"), cert.  denied, 113  S. Ct. 1830  (1993); United
                          _____________                            ______
            States v. Morrison, 972 F.2d 269, 270-71 (9th Cir. 1992) (per
            ______    ________
            curiam)  (aiding   and  abetting  malicious   destruction  of
            property).   Compare United States v. Innie, 7 F.3d 840, 848-
                         _______ _____________    _____
            52 (9th Cir. 1993)  (holding that offense of  being accessory
            after the fact is  not a crime of violence  under guidelines;
            distinguishing  aiding and  abetting  and conspiracy  in this
            regard).

                                         -8-

has advanced no  other challenge to  the detention order,  we

            affirm the district court's decision. 

                 Affirmed.
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