Commonwealth v. Young , 453 Mass. 707 ( 2009 )

Spina, J.

These cases, here on a reservation and report by a single justice of this court, require us to decide whether unlicensed possession of a firearm qualifies as a predicate offense pursuant to G. L. c. 276, § 58A, which allows the Commonwealth to seek pretrial detention of individuals accused of certain serious offenses. We conclude that it does not.²

1. Facts. The defendants, in unrelated cases, were both charged with, inter alla, unlicensed possession of a firearm. See G. L. c. 269, § 10 (a).³ The Commonwealth moved to detain them pursuant to G. L. c. 276, § 58A(§ 5 8 A). A judge in the Superior Court presiding over both § 58A proceedings ruled that unlicensed possession of a firearm was not a predicate offense for purposes of § 58A. We summarize the relevant procedural history with respect to each defendant.⁴

Jermaine Rodrigues. On September 27, 2007, a grand jury in Bristol County indicted Rodrigues for (1) unlawful possession of a large capacity weapon, see G. L. c. 269, § 10 (m); (2) unlawful possession of a large capacity feeding device, see G. L. c. 269, § 10 (m); (3) unlawful possession of a firearm whose serial number had been removed, defaced, altered, obliterated, or mutilated in any manner, see G. L. c. 269, § 11C; (4) unlawful possession of ammunition without a firearm identification (FID) card, see G. L. c. 269, § 10 (h) (1); (5) receiving stolen property, see G. L. c. 266, § 60; (6) unlawful possession of a firearm, see G. L. c. 269, § 10 (a); and (7) unlawful possession of a loaded firearm, see G. L. c. 269, § 10 (n).

On October 30, 2007, the Commonwealth, citing all seven indictments, moved to detain the defendant pursuant to § 58A.⁵ A judge in the Superior Court denied the motion on the ground that “possession without more does not establish clear and convincing evidence of dangerousness” pursuant to G. L. c. 276, § 5 8A.

Thomas Young. On October 22, 2007, a complaint issued in the Taunton Division of the District Court Department charging Thomas Young with (1) two counts of possession of a firearm without an FID card, see G. L. c. 269 § 10 (h); (2) possession of a class D substance, see G. L. c. 94C, § 34; (3) conspiracy to sell drugs, see G. L. c. 94C, § 40; (4) distribution of a class B substance, see G. L. c. 94C, § 32A (a); (5) failure to yield at an intersection, see G. L. c. 89, § 8; (6) failure to wear a seat belt, see G. L. c. 90, § 13A; and (7) receiving stolen property, see G. L. c. 266, § 60. On October 24, 2007, another complaint issued in the District Court charging Young with (1) carrying a firearm without a license, see G. L. c. 269, § 10 (a); (2) possession of a firearm without an FID card, see G. L. c. 269, § 10 (h); and (3) carrying a loaded firearm without a license, see G. L. c. 269, § 10 (n).

After a § 58A hearing on October 26, 2007, a judge in the District Court, citing “firearm w/o license, FID” as predicate offenses, ordered that Young be detained pending trial. Young filed a petition for review of the pretrial detention order in the Superior Court. See § 58A (7). The petition was allowed by the same judge that presided over Rodrigues’s § 58A hearing and bail was set at $7,000 cash.

The Commonwealth subsequently sought relief in both cases from a single justice of this court pursuant to G. L. c. 211, § 3, contending that possessory firearm offenses come within § 58A (1), which permits the Commonwealth to move for pretrial detention if a defendant has been charged with “any other felony that by its nature involves a substantial risk that physical force against the person of another may result.” § 58A (1) (residual clause). The single justice reserved and reported the cases to the full court.

2. Statutory background. Section 58A “sets out a comprehensive scheme of measures available with respect to arrested persons charged with crime.” Mendonza v. Commonwealth, 423 Mass. 771, 774 (1996). Among the measures described in § 58A is pretrial detention. The pretrial detention regime in § 58A “is explicitly ‘predictive’ and ‘seek[s] systematically to identify those who may present a danger to society and to incapacitate them before that danger may be realized.’ ” Id. at 780, quoting Opinion of the Justices, 423 Mass. 1201, 1219 (1996). Section 58A (1) provides:

“The commonwealth may move, based on dangerousness, for an order of pretrial detention or release on conditions for a felony offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person of another, or any other felony that by its nature involves a substantial risk that physical force against the person of another may result, including the crime of burglary and arson whether or not a person has been placed at risk thereof, or a violation of an order pursuant to [G. L. c. 208, § 18, § 34B, or § 34C; G. L. c. 209, § 32; G. L. c. 209A, § 3, § 4, or § 5; or G. L. c. 209C, § 15 or § 20], or arrested and charged with a misdemeanor or felony involving abuse as defined in [G. L. c. 209A, § 1,] or while an order of protection issued under said [G. L. c. 209A] was in effect against said person, an offense for which a mandatory minimum term of three years or more is prescribed in [G. L. c. 94C], arrested and charged with a violation of [G. L. c. 268, § 13B,] or a third or subsequent conviction for a violation of [G. L. c. 90, § 24]” (emphasis added).

If an individual has been charged with a predicate offense, a hearing may be held to determine whether the individual should, pending trial, be released on personal recognizance without surety, released on conditions of release set forth in § 58A (2) (A)-(B), or detained. § 58A (2). The hearing “shall be held immediately upon the person’s first appearance before the court unless that person, or the attorney for the commonwealth, seeks a continuance.” § 58A (4).⁶ Pretrial detention may be ordered only if the judge, after considering a number of statutorily prescribed factors to assess an individual’s dangerousness,⁷ finds that the Commonwealth has established by clear and convincing evidence that “no conditions of release will reasonably assure the safety of any other person or the community.” § 58A (3).

An individual detained under § 58A “shall be brought to a trial as soon as reasonably possible, but in absence of good cause, the person so held shall not be detained for a period exceeding ninety days excluding any period of delay as defined in Massachusetts Rules of Criminal Procedure Rule 36 (b) (2) [378 Mass. 909 (1979)].” Id. An individual ordered detained by a judge in the District Court may petition the Superior Court for review of that order. § 58A (7). Review of a Superior Court pretrial detention decision may be had by application to a single justice of this court. Mendonza v. Commonwealth, supra at 775.

3. Discussion. The Commonwealth initially contends that the judge in the Superior Court erred in Rodrigues’s case in concluding that “possession without more does not establish clear and convincing evidence of dangerousness” because he conflated the predicate offense inquiry, see § 58A (1), with the individualized dangerousness determination under § 58A (5).

The threshold question in every case is whether the defendant has committed a predicate offense under § 58A (1), thereby triggering the Commonwealth’s right to move for a § 58A hearing. See § 58A (4) (“When a person is held under arrest for an offense listed in subsection [1] and upon a motion by the commonwealth, the judge shall hold a hearing . . .”). We agree with the Commonwealth that § 58A requires a categorical approach to determining whether a felony is a predicate offense, independent of the particular facts giving rise to a complaint or indictment. The statute’s plain language directs courts to focus on whether a felony offense, if not one of the specifically listed crimes, “has as an element of the offense the use, attempted use, or threatened use of physical force against the person of another” or “by its nature involves a substantial risk that physical force against the person of another may result” (emphasis added). § 58A (1). These statutory alternatives demonstrate that the predicate offense inquiry focuses on the elements of the crime, rather than the particular facts underlying a complaint or indictment.

This approach comports with the analysis utilized under the Federal Bail Reform Act, 18 U.S.C. § 3142 (2000). See United States v. Singleton, 182 F.3d 7, 10-12 (D.C. Cir. 1999) (offenses eligible for pretrial detention hearing categorically ascertainable by “reference to their elements”). See also United States v. Bowers, 432 F.3d 518, 521 (3d Cir. 2005) (same); United States v. Johnson, 399 F.3d 1297, 1301 (11th Cir. 2005) (same); United States v. Rogers, 371 F.3d 1225, 1228 n.5 (10th Cir. 2004) (same).⁸ Consequently, an individualized dangerousness determination based on, inter alia, the factual predicate giving rise to the complaint or indictment, see § 58A (5), is appropriate only if the predicate offense hurdle has been cleared. See United States v. Byrd, 969 F.2d 106, 109-110 (5th Cir. 1992) (defendant could not be detained unless accused of predicate offense despite dangerousness); United States v. Ploof 851 F.2d 7, 11 (1st Cir. 1988) (“where detention is based on dangerousness grounds, it can be ordered only in cases involving one of the circumstances set forth in [18 U.S.C. § 3142(f)(1)]”).

To the extent the judge merged the predicate offense inquiry, see § 58A (1), and the particularized dangerousness determination under § 58A (5), this was error, but does not affect the resolution of this case.

Turning to the heart of the Commonwealth’s appeal, we consider whether the residual clause making a predicate offense “any other felony that by its nature involves a substantial risk that physical force against the person of another may result” encompasses unlicensed possession of a firearm.⁹’¹⁰

We begin with the language of the statute itself and “presume, as we must, that the Legislature intended what the words of the statute say.” Collatos v. Boston Retirement Bd., 396 Mass. 684, 687 (1986). See 2A N.J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 46:1, at 150-151 (7th ed. 2007) (legislative intent gleaned from what is said, not from what Legislature might have intended to say). We interpret statutes “according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Hanlon v. Rollins, 286 Mass. 444, 447 (1934). “[W]ords in a statute must be considered in light of the other words surrounding them.” Commonwealth v. Brooks, 366 Mass. 423, 428 (1974).

Neither defendant nor the Commonwealth disputes that the words “any other felony” mean a felony that does not have as an element of the offense the use, attempted use, or threatened use of physical force against another. They disagree, however, as to the meaning of the phrase “by its nature involves a substantial risk that physical force against the person of another may result.” § 58A (1).

The statute does not define the term “substantial risk.” “Substantial” is defined as “considerable in amount, value, or worth.” Commonwealth v. Robinson, 444 Mass. 102, 106 (2005), quoting Webster’s Third New Int’l Dictionary 2280 (1993) (Webster’s). “Risk” refers to “the possibility of loss, injury, disadvantage or destruction.” Webster’s, supra at 1961. Thus, to constitute a predicate offense under the residual clause, an unenumerated felony by its nature must involve a considerable possibility that physical force against another may result.

Unlicensed possession of a firearm does not, by its nature, involve a substantial risk that physical force against another may result. That a person possesses a firearm without a valid license does not itself pose a substantial risk that physical force against another may result. Rather, it is the unlawful use of a firearm that involves a substantial risk that physical force against another may result.

While we are cognizant that unlicensed possessors of firearms may use firearms unlawfully, unlicensed possession of a firearm itself is a regulatory crime. It is passive and victimless. It does not even require proof that a defendant knowingly failed to acquire or maintain a license, see Commonwealth v. Jackson, 369 Mass. 904, 917 (1976), and thus may occur regardless whether an individual has acquired a firearm for an illicit or lawful purpose, or simply allowed a license to lapse. Because the motive of an unlicensed possessor of a firearm is totally irrelevant to criminal liability, we discern no principled legal distinction between the risk of physical force posed by licensed and unlicensed possessors of firearms. While a licensed individual may have knowledge of the proper safety practices for using, handling, and storing firearms, the acquisition of a license does not guarantee that the licensee will abide by those safety practices or refrain from using the firearm for an unlawful purpose.

The Commonwealth urges us to equate the words “by its nature” with the “majority of factual scenarios” in which the felony occurs.¹¹ Unlicensed possessors of firearms, it argues, typically shirk licensing requirements because they intend to use the firearm for unlawful purposes. However, inquiry into the “nature” of the felony examines the legal elements comprising the felony, not the factual predicate giving rise to a complaint or indictment. See United States v. Singleton, 182 F.3d 7, 10-12 (D.C. Cir. 1999). The elements of unlicensed possession of a firearm, see note 9, supra, do not require proof that a defendant purposefully evaded firearm licencing requirements, see Commonwealth v. Jackson, supra, let alone proof that a defendant’s failure to obtain a license was motivated by a desire to use the firearm for an illicit purpose.

Consideration of the crimes specifically enumerated in § 58A (1) bolsters our conclusion that unlicensed possession of a firearm is not a predicate offense. We previously have characterized the enumerated crimes as plainly presenting “the menace of dangerousness.” Mendonza v. Commonwealth, 423 Mass. 771, 787 (1996). For example, § 58A (1) expressly includes “burglary and arson whether or not a person has been placed at risk [of physical force].” Although these are crimes against property, a foreseeable risk of harm to others inheres in both crimes in that an unsuspecting person may happen upon the criminal conduct, and may be either injured by the conduct itself, as in the case of arson, or become ensnared in a confrontation with the perpetrator as in the case of burglary. A review of the other crimes qualifying as predicate offenses leads us to the firm conclusion that a felony constitutes a predicate offense under the residual clause if its commission evinces a disregard for the safety and well-being of others. For instance, the Commonwealth may seek pretrial detention if an individual has been arrested and charged with a violation of G. L. c. 90, § 24, that could result in a third or subsequent conviction of operating while under the influence or reckless driving. § 58A (1). This reference implicitly suggests that the modicum of dangerousness inferable from the commission of any of the other specifically enumerated offenses (or an offense involving the use, attempted use, or threatened use of force) is absent until an individual has been arrested and charged with a violation of G. L. c. 90, § 24, that could result in a third or subsequent conviction of that offense. Similarly, violations of certain orders under statutes proscribing domestic abuse present a substantial risk of physical harm to another.

For the reasons discussed supra, unlicensed possession of a firearm does not manifest a disregard for the safety and well-being of others, and therefore lacks the “menace of dangerousness” inherent in the crimes specifically included in § 58A (1). Mendonza v. Commonwealth, supra.¹²’¹³

4. Conclusion. In holding that unlicensed possession of a firearm is not a predicate offense for purposes of § 5 8A, we are not unmindful of the dangers relating to unlicensed possession of firearms. Nevertheless, in the absence of clear legislative intent to the contrary, we cannot rewrite or torture the statute’s language to include this offense.

For the foregoing reasons, the order allowing Rodrigues’s petition for review of the District Court’s decision to detain him pending trial and the order denying the Commonwealth’s motion for a § 58A hearing in Young’s case are affirmed.

So ordered.

2 We acknowledge the amicus curiae brief submitted by the Committee for Public Counsel Services on behalf of the defendants.

3 As discussed infra, the defendants were charged with other possessory firearm offenses under G. L. c. 269. The Commonwealth does not urge any distinction between those charges and the charges for unlicensed possession of a firearm under G. L. c. 269, § 10 (a).

4 Because we conclude that unlicensed possession of a firearm is not a qualifying offense for purposes of G. L. c. 276, § 58A (§ 58A), we do not recite the evidence of dangerousness presented at the respective § 58 A hearings. See infra (§ 58A does not apply unless individual charged with predicate offense).

5 At that time, Rodrigues appears to have been detained pursuant to a District Court pretrial detention order dated August 28, 2007. The detention order was based on a complaint issued in the Taunton Division of the District Court Department charging him with most of the same offenses that formed the basis for the later Superior Court indictments; the complaint was based on the same conduct giving rise to the indictments. Rodrigues subsequently petitioned the Superior Court for review of the District Court judge’s order pursuant to § 58A (7). That petition was denied on August 31, 2007.

6 If the Commonwealth’s motion for a continuance is allowed, the continuance may not exceed three business days. § 58A (4). A continuance on the defendant’s motion may not exceed seven days. Id. In either event, “[d]uring a continuance, the individual shall be detained upon a showing that there existed probable cause to arrest the person.” Id. See Commonwealth v. Lester L., 445 Mass. 250, 255-256 (2005). An individual also may be detained pending completion of a § 58A hearing. § 58A (4).

7 Section 58A (5) provides:

“[The judge] shall, on the basis of any information which he can reasonably obtain, take into account the nature and seriousness of the danger posed to any person or the community that would result by the person’s release, the nature and circumstances of the offense charged, the potential penalty the person faces, the person’s family ties, employment record and history of mental illness, his reputation, the risk that the person will obstruct or attempt to obstruct justice or threaten, injure or intimidate or attempt to threaten, injure or intimidate a prospective witness or juror, his record of convictions, if any, any illegal drug distribution or present drug dependency, whether the person is on bail pending adjudication of a prior charge, whether the acts alleged involve abuse as defined in [G. L. c. 209A, § 1], or violation of a temporary or permanent order issued pursuant to [G. L. c. 208, § 18 or § 34B; G. L. c. 209, § 32; G. L. c. 209A, § 3, § 4, or § 5; or G. L. c. 209C, § 15 or § 20], whether the person has any history of orders issued against him pursuant to the aforesaid sections, whether he is on probation, parole or other release pending completion of sentence for any conviction and whether he is on release pending sentence or appeal for any conviction.”

8 We previously have noted that § 58A “is similar in most respects to the Federal Bail Reform Act” (emphasis added). Mendonza v. Commonwealth, 423 Mass. 771, 773 (1996). In the absence of a “clear reason to do otherwise, we interpret cognate provisions of State and Federal law similarly.” Miller v. Cotter, 448 Mass. 671, 679 (2007). Notwithstanding the textual differences in the residual clauses under the Bail Reform Act, 18 U.S.C. § 3142 (2000), and § 58A, respectively, see Mendonza v. Commonwealth, supra at 787, the statutory analyses of the Federal courts in concluding that the Bail Reform Act requires a categorical approach to the predicate offense determination are sound and apply to § 58A for the reasons discussed supra.

9 To establish a violation of G. L. c. 269, § 10 (a), the Commonwealth must establish that (1) the defendant knowingly possessed the firearm, see Commonwealth v. Jackson, 369 Mass. 904, 916 (1976); and (2) that the firearm met the requirements of a firearm as defined by G. L. c. 140, § 121. See Commonwealth v. Sampson, 383 Mass. 750, 753 (1981). The Commonwealth need not prove that the defendant knew that a license was necessary to lawfully possess the firearm. Commonwealth v. Jackson, supra at 917. The Commonwealth also need not show that the defendant has not obtained a license or FID card. See Commonwealth v. Jones, 372 Mass. 403, 406 (1977). If the defendant has a license or an FID card, then the burden is on the defendant to come forward with such evidence. Id.

10 As mentioned in note 3, supra, the Commonwealth does not urge any distinction between unlicensed possession of a firearm, see G. L. c. 269, § 10 (a), possession of a firearm or ammunition without an FID card, see G. L. c. 269, § 10 (h), and unlicensed possession of a large capacity firearm or large capacity feeding device, see G. L. c. 269, § 10 (m). Because the elements of these possessory crimes differ only in the instrumentality possessed, for purposes of the present discussion and ease of reference, we refer to these crimes genetically as unlicensed possession of a firearm.

11 This argument is somewhat inconsistent with the Commonwealth’s position that a categorical approach be used to determine whether an offense qualifies as a predicate offense. We think the dissent is similarly mistaken. Where the elements of a felony do not require proof that the defendant actually disregarded the safety and well-being of others, any determination concerning the substantiality of the connection between the felony and the risk of physical force against another properly lies with the Legislature.

12 The Commonwealth argues that the words “may result,” by way of contrast with the Federal cognate residual clause, see 18 U.S.C. §§ 3142(f), 3156(a)(4)(B) (2000), do not require a direct causal connection between the risk of physical force against another and the felony itself. We disagree. The statute unambiguously requires that a felony “by its nature involve[] a substantial risk that physical force against the person of another may result” (emphasis added). Because the felony “by its nature” must involve the requisite risk, the risk must directly arise out of the felony itself. As discussed supra, the risk of harm to another does not stem directly from unlicensed possession of a firearm, but rather from unlawful use of the firearm.

13 We note that this case does not require us to decide whether the possession of a pipe bomb, silencer, sawed off shotgun, or other instrumentality that is generally associated with violence and has little socially useful value constitutes a predicate offense. See United States v. Dodge, 846 F. Supp. 181, 184 (D. Conn. 1994) (silencer and pipe bomb inherently dangerous weapons for which there is no peaceful use, and thus, their possession is predicate offense under Federal pretrial detention statute). See also United States v. Lane, 252 F.3d 905, 907 (7th Cir. 2001) (“Some firearms, it is true — for- example sawed-off shotguns — have no significant lawful use, and so their possession by felons may well constitute a crime of violence . . .”). Cf. Cepulonis v. Commonwealth, 384 Mass. 495, 497-498 (1981), appeal dismissed, 455 U.S. 931 (1982) (sentence of from forty to fifty years for unlawful possession of machine gun not unconstitutionally disproportionate because Legislature could infer from “common knowledge that the unlicensed possession of machine guns is almost always associated with the commission of violent crimes with the potential for mass killing”).