United States v. Mitchell

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.

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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

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

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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).

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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).

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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

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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

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."

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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).

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has advanced no other challenge to the detention order, we

affirm the district court's decision.

Affirmed.

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