USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1188
UNITED STATES,
Appellee,
v.
JAMES L. MITCHELL,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Boudin, Circuit Judges.
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Walter B. Prince and Peckham, Lobel, Casey, Prince & Tye on brief
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for appellant.
Donald K. Stern, United States Attorney, Sheila W. Sawyer and
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Kevin J. Cloherty, Assistant United States Attorneys, on brief for
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appellee.
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April 13, 1994
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Per Curiam. Following his conviction on two arson-
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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
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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
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abetting the commission thereof--the crimes of which he was
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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.
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recommended.
3. Any such argument would have been plainly unavailing.
See, e.g., United States v. Marzullo, 780 F. Supp. 658, 662-
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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.
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1987) (same); cf. United States v. Lee, 726 F.2d 128, 131
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(4th Cir.) (noting that arson was crime of violence under 18
U.S.C. 1952(a)(2)), cert. denied, 467 U.S. 1253 (1984);
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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),
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cert. denied, 499 U.S. 977 (1991). One who aids and abets an
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offense "is punishable as a principal," 18 U.S.C. 2, and
"the acts of the principal become those of the aider and
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abetter as a matter of law." United States v. Simpson, 979
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F.2d 1282, 1285 (8th Cir. 1992) (emphasis in original), cert.
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denied, 113 S. Ct. 1345 (1993). Accordingly, as other courts
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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,
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1191-92 (7th Cir. 1993) (aiding and abetting burglary is
"violent felony" under Armed Career Criminal Act, 18 U.S.C.
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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,
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909 F.2d 561, 569 (1st Cir. 1990) (quoting Nye & Nissen v.
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United States, 336 U.S. 613, 619 (1949) (internal quotation
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omitted).
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924(e)(1)); Simpson, 979 F.2d at 1285-86 (defendant, having
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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
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States v. Hathaway, 949 F.2d 609, 610 (2d Cir. 1991) (per
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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
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(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
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v. Chimurenga, 760 F.2d 400 (2d Cir. 1985): "The existence of
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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.
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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.
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3156(a)(4)(B)); accord, e.g., United States v. DiSomma, 951
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F.2d 494, 496 (2d Cir. 1991) (same); United States v. Dodge,
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(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
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122, 126 (8th Cir. 1993) (conspiracy to commit bank robbery
is crime of violence as defined in 18 U.S.C. 16); United
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States v. Mendez, 992 F.2d 1488, 1491-92 (9th Cir.)
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(conspiracy to rob is crime of violence under 18 U.S.C.
924(c)(3)) (collecting cases), cert. denied, 114 S. Ct. 262
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(1993); United States v. Johnson, 962 F.2d 1308, 1311-12 (8th
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Cir.) ( 924(c); conspiracy to commit bank robbery), cert.
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denied, 113 S. Ct. 358 (1992); United States v. Patino, 962
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F.2d 263, 267 (2d Cir.) ( 924(c); conspiracy to commit
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5. The Chimurenga court further noted that pertinent
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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
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United States v. Marzullo, 780 F. Supp. 658, 664 (W.D. Mo.
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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,
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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
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States v. Greer, 939 F.2d 1076, 1099 (5th Cir. 1991) (
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924(c); conspiracy to deprive citizens of civil rights),
aff'd en banc, 968 F.2d 433 (5th Cir. 1992), cert. denied,
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113 S. Ct. 1390 (1993); see also United States v. Cruz, 805
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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
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U.S. 1006 (1987). But cf. United States v. King, 979 F.2d
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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
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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.,
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United States v. Carpenter, 11 F.3d 788, 790-91 (8th Cir.
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1993) (conspiracy to commit burglary); United States v.
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Fiore, 983 F.2d 1, 4 (1st Cir. 1992) ("conspiracy convictions
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can serve as predicate offenses under the career offender
provisions"), cert. denied, 113 S. Ct. 1830 (1993); United
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States v. Morrison, 972 F.2d 269, 270-71 (9th Cir. 1992) (per
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curiam) (aiding and abetting malicious destruction of
property). Compare United States v. Innie, 7 F.3d 840, 848-
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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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