United States v. Newman ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 1 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-1294
(D.C. No. 97-CR-270-S)
KIMBERLY A. NEWMAN, (D. Colo.)
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-1295
(D.C. No. 97-CR-270-S)
THOMAS J. NEWMAN, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, EBEL, and MURPHY, Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are
therefore ordered submitted without oral argument.
We have consolidated these appeals on our own motion. See Fed. R. App.
p. 3(b). Defendants/appellants Kimberly A. and Thomas J. Newman appeal from
the district court’s order requiring their pretrial detention. We review de novo the
district court’s determination of mixed questions of law and fact concerning the
detention decision, while accepting its findings of historical fact in support of the
decision, unless they are clearly erroneous. See United States v. Kinslow, 105
F.3d 555, 557 (10th Cir. 1997).
A defendant is generally entitled to pretrial release, unless his crime falls
within one of the categories enumerated in 18 U.S.C. § 3142(f)(1), or unless there
is a serious risk that he will flee, obstruct justice or tamper with witnesses or the
jury, see § 3142(f)(2). The district court determined that defendants were charged
with a “crime of violence.” See 18 U.S.C. § 3142(f)(1)(A). Having made this
determination, the district court further determined that no conditions or
combination of conditions would reasonably assure defendants’ appearance as
required and the safety of other persons and the community, See 18 U.S.C.
§ 3142(f).
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Defendants first attack the finding that they are charged with a “crime of
violence.” Defendants are each charged with ten counts of possession of an
unregistered firearm. See 26 U.S.C. §§ 5861. The firearms in question are ten
fully functional pipe bombs, each containing powder, match heads and two-inch
nails or screws. See Appellant’s App. (Thomas Newman) at 93. Defendant
Thomas Newman allegedly delivered the pipe bombs to undercover Missouri state
troopers posing as members of a militia organization.
Defendants contend that mere possession of the pipe bombs cannot be
considered a “crime of violence” within the meaning of § 3142(f)(1). A “crime of
violence” for purposes of this statute, 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;
(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 U.S.C. § 3156(a)(4).
The district court concluded that possession of the pipe bombs satisfied the
criteria of either subsection (A) or subsection (B) of § 3156(a)(4). We are
satisfied that the offense here meets the criteria of subsection (B). Possession of
unregistered pipe bombs, by its very nature, involves a substantial risk of injury to
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the person or property of another. Pipe bombs are “inherently dangerous weapons
for which no peaceful purpose can be seriously suggested, regardless of whether
the weapons actually are used.” United States v. Dodge, 846 F. Supp. 181, 184
(D. Conn. 1994). 1
Having concluded that defendants are indeed charged with a “crime of
violence,” we move on to their challenge to the district court’s finding that no
condition or combination of conditions would reasonably assure the safety of any
other person or the community if they were released. By statute, the facts used to
underlie this finding must be supported by clear and convincing evidence. See
18 U.S.C. § 3142(f). Having reviewed the record, we conclude that the district
court correctly determined that no condition or combination of conditions would
reasonably assure the safety of the community if the Newmans were released
pending trial.
1
We are not otherwise persuaded by defendants’ cite to Stinson v. United
States, 508 U.S. 36 (1993), a case dealing with an analogous definition for “crime
of violence” in the sentencing guideline context. See United States Sentencing
Guidelines § 4B1.2. Although the Supreme Court required the district court to
give authoritative weight to commentary to the guidelines excluding the crime of
felon-in-possession from the definition of a “crime of violence,” see id., comment
n.2, the Court acknowledged that the gloss placed by the commentary might “not
be compelled by the guideline text.” Stinson, 508 U.S. at 47. Thus, Stinson
provides little or no guidance concerning application of the § 3156(a)(4)
definition at issue here.
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The judgments of the United States District Court for the District of
Colorado are therefore AFFIRMED.
ENTERED FOR THE COURT
PER CURIAM
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