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UNITED STATES v. WASHINGTON

November 16, 1995

UNITED STATES OF AMERICA,
v.
DAVID L. WASHINGTON, Defendant.



The opinion of the court was delivered by: HOGAN

 Pending before the Court is defendant David L. Washington's Motion For Revocation of Detention Order by Magistrate. This case comes to this Court following the determination by Magistrate Judge Kay that defendant's pretrial release would constitute an unreasonable risk of danger to the community and risk of flight. The defendant now seeks review of that Order. After careful consideration of the arguments presented by counsel as well as the evidence presented at the hearing and in the record, for the reasons set forth below, the Court will deny the defendant's motion.

 I. Background

 On August 22, 1995, police acting on information provided by a "concerned citizen," stopped defendant to determine if, as they had been told, the defendant was carrying a gun. The defendant had previously been convicted of, among other things, robbery a felony with a term of imprisonment in excess of one year. When the police searched the defendant, they discovered a Lorcin model L-9 9mm semi-automatic pistol in the waistband area of his blue shorts.

 Defendant appeared before Magistrate Judge Kay on August 23, 1995, at which time a preliminary hearing and a detention hearing were scheduled. The government had moved for pretrial detention on the basis that possession of a firearm by a convicted felon is a crime of violence. *fn1" On August 25, 1995, the defendant again appeared before the Magistrate Judge, at which time a hearing on both issues was conducted. On August 31, 1995, the defendant was formally charged in a five count indictment with a number of weapons charges, including unlawful possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). On September 1, 1995, the Magistrate Judge issued a written opinion finding first, that there existed probable cause to believe that on August 22, 1995, the defendant possessed firearms after having been convicted of a felony, and was then a felon in unlawful possession of a firearm in violation of 18 U.S.C. § 922(g). The Magistrate then held that the defendant was not entitled to be released on bond.

 The Magistrate Judge first considered whether a felon in possession of a firearm constituted a crime of violence. The term "crime of violence" is defined under the Bail Reform Act to mean --

 
(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; or
 
(C) any felony under chapter 109A or chapter 110 [ 18 USCS §§ 2241 et seq. or 2251 et seq.].

 18 U.S.C. § 3156(a)(4). The Magistrate Judge, relying on authority from other jurisdictions, found that possession by a felon of a firearm is a crime of violence justifying a pretrial detention hearing. See United States v. Aiken, 775 F. Supp. 855 (D.Md. 1991); United States v. Spires, 755 F. Supp. 890 (M.D.Cal. 1991); United States v. Johnson, 704 F. Supp. 1398 (E.D. Mich. 1988), and United States v. Phillips, 732 F. Supp. 255 (D.Mass. 1990).

 After making a finding that possession by a felon of a fully loaded handgun is a crime of violence for purposes of 18 U.S.C. § 3142(f)(1)(A), the Magistrate proceeded to consider the factors for consideration in determining whether release or detention is appropriate:

 
(g) Factors to be considered. The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning --
 
(1) the nature and the circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
 
(2) the weight of the evidence against the person;
 
(3) the history and characteristics of the person, including --
 
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug and alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
 
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing appeal, or completion of a sentence . . . ; and
 
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. . . .

 18 U.S.C. § 3142(g).

 The Magistrate Judge found that consideration of all four factors weighed in favor of detention. As to the first factor, the nature and circumstances of the offense, the Magistrate Judge found that the defendant was a convicted felon in possession of a semi-automatic pistol and thirteen rounds of ammunition. As to the second factor, the weight of evidence, the Magistrate Judge noted that the police found the pistol in defendant's waistband. As to the third factor, the defendant's history and characteristics, according to the Magistrate Judge, this defendant had a history of "drug-related, robbery, armed robbery, CDW felony, Bail Reform Act convictions," and from 1976 through May 1993 was convicted 11 times on various charges. Finally, as to the fourth factor, the nature and seriousness of the danger to any person, the Magistrate Judge found the defendant to be a ...


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