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United States v. Santoro

United States District Court, D. Maine

January 24, 2019

UNITED STATES OF AMERICA,
v.
AUSTIN SANTORO, Defendant

          DECISION AND ORDER ON DEFENDANT'S REQUEST FOR RELEASE

          D. Brock Hornby United States District Judge

         Under the Bail Reform Act, a judicial officer dealing with a request for pretrial or presentence release must assess the defendant's risk of flight and dangerousness. See 18 U.S.C. § 3143(a)(1). But for anyone found guilty of certain crimes, Congress has made presentence detention mandatory[1]- regardless of that assessment-unless “it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.” 18 U.S.C. § 3145(c). This defendant has pleaded guilty to violating 18 U.S.C. § 875(c), a provision that imposes up to five years of prison on “[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.”[2]Initially detained, he now seeks release pending sentencing. The parties dispute whether he must meet the “exceptional reasons” requirement. After briefing and oral argument on January 22, 2019, I conclude that the “exceptional reasons” requirement applies.[3]

         The parties agree that in this case, 18 U.S.C. § 3142(f)(1)(A)[4] lists the relevant categories of crimes for determining whether detention is mandatory. They are: “a crime of violence, a violation of section 1591, or an offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed.”

         Here, only the first category, “a crime of violence, ” is potentially applicable. The parties disagree over whether the “10 years or more” condition at the end of the quoted list modifies that first category, or only the category next to which it appears (i.e., the last category, one not pertinent here). In this case, the defendant confronts a sentence of no more than 5 years in prison, so if the “10 years or more” limitation applies, his detention would not be mandatory. The parties also disagree whether the offense to which the defendant has pleaded guilty is a “crime of violence.”

         The “10 Years or More” Condition

         First, I conclude that the “10 years or more” limitation does not apply to a conviction for a crime of violence.

         The Supreme Court recently confronted a similar question in Lockhart v. United States, 136 S.Ct. 958 (2016). There the statute involved a list of three categories where, like here, the third category contained a limiting phrase whose applicability to an earlier category was in question.[5] The Supreme Court held that the limiting phrase modified only “the antecedent immediately preceding it.” Id. at 962. It explained that when a statute “include[s] a list of terms or phrases followed by a limiting clause, we have typically applied an interpretive strategy called the ‘rule of the last antecedent.'” Id. (quoting Barnhart v. Thomas, 540 U.S. 20, 206 (2003)). Under that “rule, ” the limiting phrase ordinarily modifies only the phrase immediately preceding it. The rule is not absolute, see id. at 963, 965, but it is pertinent. In an earlier case, Paroline v. United States, 572 U.S. 434, 447 (2014), the Court noted a competing “series-qualifier” canon, where the limiting phrase should apply to the entire list; the defendant argues that I should apply that canon here. But Paroline said that canon was suitable to apply when the items in the list “are followed by a clause which is applicable as much to the first and other words [here, categories] as to the last.” Id. In this case, the limitation phrase cannot be applicable to the second category in the list, section 1591 violations, because all the offenses in that category have penalties of over 10 years (unlike the other two categories). Therefore, the rationale for the Paroline series-qualifier canon does not apply.[6] I conclude that under Lockhart the “10 years or more” limitation does not apply to the first category, a crime of violence.

         As in Lockhart, the context of this provision also “fortifies the meaning [the last antecedent] principle commands.” Lockhart, 136 S.Ct. at 963. First, it makes no sense to apply the limiting phrase to all three categories in the list here, because it has no bearing on the second category (“a violation of section 1591”), a provision where all possible penalties exceed 10 years.

         Second, the enactment history and context show that the “10 years or more” limitation does not apply to crimes of violence. Until December 2004, only crimes of violence were referred to in this subsection, and there was no prison time limitation. See 18 U.S.C. § 3142(f)(1)(A) (2003) (amended 2004). Nothing in later amendments shows that in enlarging the mandatory detention list Congress was trying to narrow the crimes of violence category. In the “Pretrial Detention of Terrorists Act of 2004[7]” under the heading “Presumption for Pretrial Detention in Cases Involving Terrorism, ” Congress simply inserted the language: “or an offense listed in section 2332b(g)(5)(B) [acts of terrorism] for which a maximum term of imprisonment of 10 years or more is prescribed.” Pub. L. No. 108-458, § 6952(2), 118 Stat. 3638 (2004). That insertion suggests that Congress was adding a self-contained new category, not changing the scope of the existing category, crimes of violence. Then in 2008, Congress added the third category, section 1591 (sex trafficking crimes), where prison terms always exceed 10 years. If the existing two categories were limited as a list by the 10-year prison requirement following 2332b(g)(5)(B), the logical place to add the new category would have been at the end, outside the limitation clause. But instead, in Subtitle C of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Congress inserted it between the two existing categories, Pub. L. No. 110-457, § 224(a), 122 Stat. 5044 (2008), further evidence that the entire list was not limited.

         Thus, Lockhart and the enactment history of this statute lead me to the conclusion that the limitation at the end of the list does not apply to the first category in the list, a crime of violence.[8] I realize that in reaching this conclusion I disagree with a handful of other district courts. See, e.g., United States v. Persico, 2017 WL 3669554, at *3 (E.D.N.Y. Aug. 23, 2017); United States v. Baldazo, 2012 WL 12947283, at *1 (N.D. Ind. Apr. 19, 2012); United States v. Madoff, 586 F.Supp.2d 240, 247 (S.D.N.Y. 2009); United States v. Chavez-Rivas, 536 F.Supp.2d 962, 965-66 (E.D. Wis. 2008). But these cases simply announced their assertion that the limitation applies to crimes of violence and did not explain how they reached that conclusion.[9]

         Crime of Violence

         Second, I conclude that this defendant has pleaded guilty to a crime of violence. The Bail Reform Act has its own definition for crime of violence. It states (in the portion relevant to the dispute here):

The 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 ...

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