NO ORAL ARGUMENT SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 98-3082

APPELLANT’S MEMORANDUM OF LAW AND FACT

UNITED STATES OF AMERICA, Plaintiff-Appellee

xxxxxxx xxxxxxx, Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

A. J. KRAMER

Federal Public Defender

Neil H. Jaffee

L. Barrett Boss

David Howard

Assistant Federal Public Defenders

625 Indiana Avenue, Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant

District Court

Cr. No. 98-212 (RCL)

PROCEDURAL HISTORY

The defendant-appellant, xxxxxxx xxxxxxx, is a 21-year-old recent high school graduate who has been accepted at Lincoln University and plans to attend there in the fall. He has been in custody since his arrest on May 21, 1998. At the time of his arrest, Mr. xxxxxxx was working as an intern with the District of Columbia School Board. He has substantial ties to this community as he was born in the District of Columbia and is a life-long resident. For the past 12 years, he has resided with his mother, who is gainfully employed at the Office of Affordable Housing Programs in the District of Columbia. Mr. xxxxxxx has a number of other close relatives who reside in this area.

Mr. xxxxxxx is charged with possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922 (g) (1), and simple possession of cocaine base, in violation of 21 U.S.C. § 844 (a). After conducting a detention hearing on May 27, 1998, Magistrate Judge Facciola ordered Mr. xxxxxxx held without bond. The magistrate judge stated that the felon-in-possession charge was a crime of violence under 18 U.S.C. § 3142 (f)(1)(A).

After an indictment was returned, Mr. xxxxxxx orally moved the District court to revoke the magistrate's detention order on the grounds, inter alia, that the offense of simple possession of a firearm is not a "crime of violence" under the Bail Reform Act and, therefore, cannot be a basis for pretrial detention under 18 U.S.C. § 3142 (f)(1)(A). On June 30, 1998, Judge Lamberth held a hearing on the motion. On July 6, 1998, the district court issued a Memorandum and Order denying the motion.

In ordering Mr. xxxxxxx's pretrial detention, Judge Lamberth noted the division in the district court on the legal issue raised by Mr. xxxxxxx's motion. Relying primarily on Judge Hogan's opinion in United States v. Washington, 907 F. Supp. 476 (D.D.C. 1995), Judge Lamberth concluded that possession of a firearm by a convicted felon constitutes a "crime of violence" under the Bail Reform Act. Mr. xxxxxxx filed a timely notice of appeal from the district court's detention order.

DISCUSSION

THE DISTRICT COURT ERRED IN RULING THAT POSSESSION OF A FIREARM BY A CONVICTED FELON, 18 U.S.C. § 922(g)(1), CONSTITUTED A “CRIME OF VIOLENCE” FOR PURPOSES OF THE BAIL REFORM ACT.

A. Introduction

The issue in this case -- one of first impression in this circuit -- is whether the offense of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) is a "crime of violence," triggering the detention provisions of the Bail Reform Act, 18 U.S.C. § 3142(e)-(f). The district judges in this circuit are split on this issue. See, e.g., United States v. Gloster, 969 F. Supp. 92 (D.D.C. 1997) (Friedman, J.) (holding that charge is not a crime of violence); United States v. Washington, 907 F. Supp. 476, 484 (D.D.C. 1995) (Hogan, J.) (holding that charge does constitute a crime of violence). The only court of appeals to decide the issue recently held, in an unpublished order, that a § 922(g)(1) charge does not constitute a "crime of violence" for purposes of 18 U.S.C. § 3142(f)(1)(A). United States v. Hardon, No. 96-1625, 1998 WL 320945 (6th Cir. June 4, 1998) (order reversing district court's denial of detention revocation motion).

Because the Bail Reform Act defines the term "crime of violence," this issue is one of statutory interpretation, which this court reviews de novo, In re Sealed Case, 105 F.3d 1460, 1462 (D.C. Cir. 1997). The plain meaning of the statutory language, which requires that a detainable offense have as an element the use of force or naturally pose a substantial risk that physical force will be used in committing the charged offense, excludes possession of a firearm by a felon from its scope. The offense proscribed by § 922(g) criminalizes firearm possession, not use. No force or threat of force need be used in the course of committing the offense of simply possessing a firearm. Courts -- including the district court in this case -- that have held firearm possession is a "crime of violence" have disregarded the plain definitional language and erroneously read into the statute a consideration of the risk of future violence created by the alleged possessory offense. This misconstruction of the statutory terms also conflicts with the legislative history of the Bail Reform Act and with interpretations of the same or similar terms defining violent crimes in other contexts.

In the instant case, Mr. xxxxxxx’s detention is based upon the charge of gun possession under § 922(g)(1). Because that offense does not constitute a "crime of violence" as defined by the Bail Reform Act, he cannot be detained on that basis. The district court's detention order should be reversed and the case remanded to the district court to set conditions of release under 18 U.S.C. § 3142 (a)-(c).

B. The Bail Reform Act Favors Pretrial Release

The Bail Reform Act provides that the government may seek pretrial detention only in certain enumerated cases. See 18 U.S.C. § 3142(f). Section 3142(f)(1)(A), which is the subsection at issue in the present case, authorizes the government to seek a detention hearing in cases involving “a crime of violence.” The Act defines “crime of violence” as:

(A) an offense that has an element of the offense the use, attempted use,or threatened use of physical force against the person 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; or

18 U.S.C. § 3156(a)(4).

Virtually all of the courts that have addressed this issue agree that the determination of whether an offense is a crime of violence is to be made categorically, and not on a case by case basis. See Gloster, 969 F. Supp. at 94-95; Washington, 907 F. Supp. at 484; United States v. Carter, 996 F. Supp. 260, 262 (W.D. N.Y. 1998). But see United States v. Epps, 987 F. Supp. 22, 24-25 (D.D.C. 1997) (Robertson, J.). Indeed, in Carter, the court canvassed the published cases on this subject and noted that “the vast majority of courts” have rejected a “‘case by case’ approach” to the question of whether a particular offense qualifies as a crime of violence. Carter, 996 F. Supp. at 262 & n.1 (noting that Epps appears to be the only case in which a non-categorical approach was employed).

The underlying objectives behind the Bail Reform Act and it legislative history also support Mr. xxxxxxx’s position. As the Supreme Court noted, “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). The Bail Reform Act of 1984 limits the circumstances under which detention orders may be granted only to the most serious crimes. Gloster, 969 F. Supp. at 96-97 (citing Salerno, 481 U.S. at 747); United States v. Powell, 813 F. Supp. 903, 906 (D. Mass. 1992). Congress recognized that “there is a small but identifiable group of particularly dangerous [persons] as to whom neither the imposition of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community or other persons. It is with respect to this limited group ... that the courts must be given the power to deny release pending trial.” S. Rep. No. 225, 98th Cong., 1st Sess. 6-7 (1983).

The legislative history also demonstrates the important value Congress placed on the liberty of the accused. “The decision to provide for pretrial detention is in no way a derogation of the importance of the [accused’s] interest in remaining at liberty prior to trial. It is anticipated that [pretrial release] will continue to be appropriate for the majority of federal defendants.” S. Rep. No. 225, 98th Cong., 1st Sess. 7, 12 (1983).

In addition, the District of Columbia pretrial detention statute, D.C. Code 1981 § 23-1322, upon which the later-enacted federal Bail Reform Act was largely based, excluded offenses involving mere possession of a firearm from its definition of “crime of violence.” See D.C. Code 1981 § 23-1331(4) (including as crimes of violence offenses such as sexual abuse, robbery, burglary, murder, assault with a dangerous weapon, etc., but omitting possession of a firearm or other weapon from its ambit). Indeed, in passing the federal Bail Reform Act, the accompanying Senate Report notes that “[t]he procedural requirements for the pretrial detention hearing set forth in Section 3142(f) are based on those of the District of Columbia statute.” S. Rep. 98-225, 98th Cong., 1st Sess. 22 (1983). The Senate Report further notes that in determining which charged offenses should subject an accused to possible pretrial detention, Congress specifically included “offenses [which] are essentially the same categories of offenses described in the District of Columbia Code by the terms ‘dangerous crime’ and ‘crime of violence’ for which a detention hearing may be held under that statute.” S. Rep. No. 225, 98th Cong., 1st Sess. 20 (1983) (emphasis added). It is from this perspective that Congress enacted 18 U.S.C. § 3142(f), which provides that:

The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of the person as required and the safety of any other person and the community- (1) upon motion of the attorney for the Government, in a case that involves- (A) a crime of violence.

C. Possession of a Firearm, by Its Nature, Is Not a Crime of Violence

1. The possession of a firearm by a convicted felon does not fall within the plain meaning of the phrase “crime of violence” or under the definition of that phrase provided in the statute.

The question of whether section 922(g)(1) constitutes a “crime of violence” under the Bail Reform Act turns on the statutory construction of that phrase. The Supreme Court has repeatedly instructed that in interpreting legislative enactments courts should focus on the plain meaning of the text, and should resort to legislative history only where the language is unclear. See, e.g., Hubbard v. United States, 115 S. Ct. 1754, 1761 (1995) (“Courts should not rely on inconclusive statutory history as a basis for refusing to give effect to the plain language of an Act of Congress, particularly when the Legislature has specifically defined the controverted term”); Connecticut Nat. Bank v. Germain, 503 U.S. 249, 112 S. Ct. 1146, 1149 (1992) (when the text of the statute is clear, the Court’s interpretive inquiry ends).

The mere possession of a firearm does not involve the use of physical force, the threat of physical force or a substantial risk that force will be used in committing that offense. Therefore, possession of a firearm is not a crime of violence, as that phrase is defined in Section 3156(a)(4).

Possession of a firearm under 18 U.S.C. § 922(g) is not a “crime of violence” under subsection (A) of 18 U.S.C. § 3156(a)(4) because there is no element of physical force. See Gloster, 969 F. Supp. at 95 (noting that “Congress has not defined the offense . . . in such a way as to render it a crime of violence under either Subsection (A) or (3) of Section 3156(a)(4)”). The commission of a § 922 offense, unlike a § 924(c)(1) offense, requires no act other than the mere possession of the firearm. See Bailey v. United States, 116 S. Ct. 501, 506 (1995) (distinguishing § 922(g) mere possession offense from § 924(c)(1) “use” offense). Thus, subsection (A) “cannot apply to mere possessory offenses such as the one proscribed by 18 U.S.C. § 922(g).” Gloster, 969 F. Supp. at 95.

Because being a felon in possession of a firearm does not include an element of physical force or the threat of physical force, it may only constitute a “crime of violence” if, by its nature, it “involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 3156(a)(4)(B) (emphasis added). See Gloster, 969 F. Supp. at 95-96; Washington, 907 F. Supp. at 482 (citing U.S. v. Sloan, 820 F. Supp. 1133 (S.D. Ind. 1993)); Powell, 813 F. Supp. at 908.

Examining the nature of a § 922(g) offense reveals that the offense does not, by its nature, involve a substantial risk that physical force will be used in committing the offense. See Gloster, 969 F. Supp. at 95-96. Rather, the offense criminalizes gun possession, not using or threatening to use a weapon. Where the possessory offense is accompanied by other charges involving the use or threatened use of a firearm, the accompanying offenses would clearly constitute crimes of violence under either 18 U.S.C. § 3156(a)(4)(A) or (B), and the defendant would be subject to detention. But, where the only charge is mere possession of the gun or of ammunition, the commission of the offense, i.e., acquiring or holding the gun and/or ammunition, does not involve any substantial risk of physical force. See Gloster, 969 F. Supp. at 95 (noting that “no violence in fact need be used 'in the course of committing'” this offense since a felon can violate this section “in a myriad of peaceful ways such as by buying, finding or borrowing a gun, or even storing a firearm in a closet or under the bed.”); United States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992) (Breyer, C.J.) (analyzing similar provision in the Armed Career Criminal Act, 18 U.S.C. § 924(e), and concluding that § 922(g) is not a “violent felony”). Therefore, because the crime of possessing a firearm does not, in and of itself, require the use of force, or the threatened use of force, it is not a crime of violence.

2. Courts finding that this offense does constitute a crime of violence have done so based on a consideration of possible future violence by the accused, and not, as the statute requires, based on the physical force used in the course of committing the charged offense.

In order for possession of a firearm to constitute a “crime of violence,” this Court would have to reject the plain meaning of the statute as demonstrated above and, instead, resort to a broad interpretation that includes considering the risk of the future harm posed by the alleged gun posssession. Powell, 813 F. Supp. at 908; Doe, 960 F.2d at 225; Sloan, 820 F. Supp. at 1137-40. In fact, this is the reasoning that has led a small contingency of courts, including the district court in the instant case, to the erroneous conclusion that possession of a firearm is a crime of violence. See Memorandum and Order at 3-4 (quoting Washington, 907 F. Supp. at 485). Specifically, the district court in the present case, quoting Washington, noted that:

. . . there is an increased risk that a criminally-inclined individual is more likely to use a firearm already in his possession to commit a crime. U.S. v. Aiken, 775 F. Supp. 855, 856 (D. Md. 1991). “It follows that persons who violate the statute [§ 922(g)] are often persons who have little regard for the law and many such persons may fairly be classified as outlaws.” U.S. v. Jones, 651 F. Supp. 1309, 1310 (E.D. Mich. 1987). This Court believes that the contemplation of use implicit in a felon’s possession makes this violation a crime which by its nature presents a substantial risk that physical force may be used on another.

Id.; see also Sloan, 820 F. Supp. at 1137-40.

As is apparent, the district court, following Washington and similar cases in finding a § 922(g) charge to be a crime of violence, relied heavily on the fact that the defendants in these cases are accused of being convicted felons. However, this analysis disregards the statutory requirement that the risk of physical force occur during the commission of the charged offense. See Gloster, 969 F. Supp. at 98. The defendant’s status, whether as a convicted felon or as someone with no criminal record, makes absolutely no difference when the charge is simply possession of a gun. What matters is what the person with the gun or ammunition is accused of doing with it. Id. In the present case, Mr. xxxxxxx is not charged with any such offense, but only with the possessory offense. Even if relevant, the underlying proposition that convicted felons are somehow inherently dangerous is questionable given that there is no requirement that the predicate felony have occurred within any time frame or that the predicate felony be for a crime of violence. For example, there is little reason to believe that an individual convicted of felony tax evasion twenty years ago poses some sort of inherent risk of violence. Id. at 97-98. There is simply no basis for concluding that an individual’s status as a convicted felon renders that individual's simple possession more of a crime of violence than where a non-felon possesses the same gun or ammunition. See Old Chief v. United States, 117 S. Ct. 644, 655 (1997) (noting that the requirement that the defendant be a convicted felon under Section 922(g) “goes to an element entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit the current offense”).

In addition to being inconsistent with the plain language of the statute, this expansive interpretation of the phrase “crime of violence” is contrary to Congress’ objective of detaining only those defendants charged with serious crimes, and it conflicts the proposition that the Bail Reform Act is to be construed narrowly. See Gloster, 969 F. Supp. at 96-97; see generally Powell, 813 F. Supp. at 909 (referring to ”the overall legal landscape of detention jurisprudence, which construes the Bail Reform Act narrowly, mindful that its shores abut choppy constitutional waters").

As explained by the courts in Gloster, Powell and Doe, approaching the issue from such a broad perspective effectively opens the floodgates well beyond crimes constituting crimes of violence. By considering the potential future harm caused by the presently alleged conduct, a court brings within the statute’s scope “a host of other crimes which do not belong there.” Gloster, 969 F. Supp. at 98; Doe, 960 F.2d at 225; Powell, 813 F. Supp. at 908. If a court is to consider the risk of future harm in determining whether a given crime is a “crime of violence,” then “drunken driving and the unlawful transporting of hazardous chemicals or other risk-creating crimes” would also constitute “crimes of violence.” See Gloster, 969 F. Supp. at 98 (quoting Doe, 960 F.2d at 225). Each of these crimes, like possession of a firearm, is non-violent in and of itself, but arguably poses a threat of physical harm in the future. Clearly, drunken driving and crimes similar to it were not the types of crimes contemplated by Congress in enacting § 3142. What these examples make clear is that possession of a firearm can no more be rationalized as within the ambit of crimes of violence under the rationale of possible future harm than can drunken driving. The fact that many instances of the felon-in-possession of a firearm statute pose no serious threat of physical harm leads “ineluctably” to the conclusion that § 922 violations are not crimes of violence for purposes of § 3142(f)(1)(A). Doe, 960 F.2d at 224; Powell, 813 F. Supp. at 909; see Gloster, 969 F. Supp. at 97-98.

3. The fact that the plain meaning of “crime of violence” does not include possession of a firearm by a convicted felon is supported by the interpretation of that phrase or a similar one in other contexts.

The terms “crime of violence” or “violent crime” appear in a number of statutes, and appellant is not aware of any other contexts in which an offense involving the mere possession of a firearm has been considered a crime of violence. For example, the United States Sentencing Guidelines provide that crimes of violence constitute a predicate for the “career offender” enhancement. U.S.S.G. § 4B1.1. The Sentencing Commission defines crimes of violence in a manner similar to Congress in the Bail Reform Act to include “conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.1(1). The commentary to this section explicitly excludes the offense of unlawful possession of a firearm by a felon from this definition. See U.S.S.G. § 4B1.2 comment., n.2.

Similarly, 18 U.S.C. § 924(e)(1), which provides for enhanced statutory penalties for armed career criminals, includes “violent felon[ies]” as predicate crimes. The statutory definition of “violent felony” is similar to the definition of “crime of violence” included in the Bail Reform Act, and includes “conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Again, the courts have determined that possession of a firearm by a convicted felon does not constitute a “violent felony.” See Doe, 960 F.2d at 224.

Courts have noted the similarities between the definitions of “crime of violence” or “violent felony” in these three enactments (the armed career criminal enhancement, the career offender enhancement, and the Bail Reform Act), and noted that the phrases should be interpreted uniformly. Indeed, the court in Doe considered decisions under the “crime of violence” provision of the Bail Reform Act in interpreting § 924(e)(1)’s “violent felony” provision. See Doe, 960 F.2d at 223-226. Likewise, courts have considered the definition of “crime of violence” in the sentencing context by looking to cases under the Bail Reform Act. See, e.g., Powell, 813 F. Supp. at 908.

As the court noted in Powell, the factors underlying Doe (dealing with the violent felony provision of the statutory armed career criminal enhancement) and Bell (dealing with possession of a firearm for the purposes of the career offender sentence enhancement) apply equally to the issue of what constitutes a “crime of violence” under the Bail Reform Act. Powell, 813 F. Supp. at 908. “To hold otherwise would require a finding that the felon in possession crime is not indicative of the type of danger to society that would trigger sentencing provisions designed to prolong incarceration for dangerous individuals, but is indicative of the type of danger to society that would trigger the Bail Reform Act’s provisions for incarcerating dangerous individuals before trial, when the relevant language is nearly identical.” Id. Stated differently, determining that possession of a firearm can be a crime of violence before trial, while the presumption of innocence is still in effect, but not a crime of violence after a conviction, when the defendant’s guilt has been proven beyond a reasonable doubt, defies logic. See Gloster, 969 F. Supp. at 98.

CONCLUSION

The plain meaning of the phrase “crime of violence” does not include an offense involving mere possession of a weapon. If Congress had wanted § 922(g) to be included as one which qualified an accused for pretrial detention under 18 U.S.C. § 3142(e-f), it could have easily included it. This Court should avoid the mistake of speculating on the future danger which may accrue from a felon having a weapon since the Bail Reform Act focuses only on the “physical force . . . used in the course of committing” a charged offense. 18 U.S.C. § 3156(a)(4)(B). Since the mere possession of the weapon without more does not involve a substantial risk of physical force, the instant offense is not a crime of violence, and does not subject an accused to pretrial detention under 18 U.S.C. § 3142(f)(1)(A).

Accordingly, Mr. xxxxxxx respectfully requests that this Court vacate the detention order in this case and remand the case to the district court to set conditions of release under 18 U.S.C. § 3142 (a)-(c).

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

Neil H. Jaffee

L. Barrett Boss

David Howard

Assistant Federal Public Defenders

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF SERVICE

I hereby certify that on this 17^th day of July, 1998, two copies of the foregoing Memorandum were served by hand (drop box), upon:

John Fisher

Chief, Appellate Division

Office of the United States Attorney

555 - 4th Street, N.W.

Washington, D.C. 20001

__________________________

L. Barrett Boss

Assistant Federal Public Defender

ADDENDUM

CONTENTS OF ADDENDUM

The following opinions are included in the addendum:

The district court’s Memorandum and Order, filed July 7, 1998 A-1

The magistrate judge’s Memorandum and Order, filed May 27, 1998 A-10

The unpublished opinion in United States v. Hardon,

No. 98-1625, 1998 WL 320945 (6^th Cir., June 4, 1998) A-15