
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1188                                    UNITED STATES,                                      Appellee,                                          v.                                  JAMES L. MITCHELL,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        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.                                 ____________________                                    April 13, 1994                                 ____________________                 Per  Curiam.   Following  his conviction  on two  arson-                 ___________            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.                                         -2-                 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                                            ____________________            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                            __________                        ___________            abetting the  commission thereof--the crimes of  which he was            ________            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.                                            ____________________            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),            ______________    _______            cert. denied, 499 U.S. 977 (1991).  One who aids and abets an            ____________            offense  "is punishable as a  principal," 18 U.S.C.    2, and            "the  acts of  the principal  become those  of the  aider and                  ____            abetter as a matter of  law."  United States v.  Simpson, 979                                           _____________     _______            F.2d 1282, 1285 (8th Cir. 1992) (emphasis in original), cert.                                                                    _____            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.                                              ____________________            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                        _______            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               __________            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.                                                      ___________     ___            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                                         -6-            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                    _____________    _______            Cir.) (   924(c); conspiracy  to commit bank  robbery), cert.                                                                    _____            denied, 113 S. Ct.  358 (1992); United States v.  Patino, 962            ______                          _____________     ______            F.2d 263,  267  (2d Cir.)  (   924(c); conspiracy  to  commit                                            ____________________            5.  The   Chimurenga  court  further   noted  that  pertinent                      __________            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                                                                 ________            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                                            ____________________            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.            _____________     _________            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.                 _________                                         -9-
