NO ORAL ARGUMENT SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. xx-xxxxx

AMICUS CURIAE'S MEMORANDUM OF LAW AND FACT

UNITED STATES OF AMERICA, Plaintiff-Appellant

xxxxxxxxxxxxxx, Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

A. J. KRAMER

Federal Public Defender

Neil H. Jaffee

L. Barrett Boss

Assistant Federal Public Defenders

625 Indiana Avenue, Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Amicus Curiae

District Court

Cr. No. xxxxxxx (PLF)

INTRODUCTION

The Federal Public Defender for the District of Columbia represents all indigent defendants charged in the United States District Court for the District of Columbia and all such defendants on appeal before this Court, except in those cases which would constitute a conflict of interest. A significant portion of the Federal Public Defender's clients are charged with possession of a firearm after having been convicted of a crime punishable by a term of imprisonment exceeding one year, under 18 U.S.C. з 922(g)(1). Accordingly, the Court's ruling in this case -- whether з 922(g)(1) is an offense which subjects a defendant to pretrial detention hearing, pursuant to 18 U.S.C. зз 3142(f)(1) and 3156 - is one that will impact many of the Federal Public Defender's current and future clients. Thus, the Federal Public Defender, as amicus curiae, submits this memorandum in support of the appellee's position that the lower court's holding, that з 922(g)(1) is not a crime of violence under the Bail Reform Act, should be affirmed.

DISCUSSION

THE DISTRICT COURT CORRECTLY RULED THAT POSSESSION OF A FIREARM BY A CONVICTED FELON, 18 U.S.C. з 922(g)(1), DOES NOT CONSTITUTE 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. з 922(g)(1) is a "crime of violence," triggering the detention provisions of the Bail Reform Act, 18 U.S.C. з 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).⁽¹⁾ In United States v. Floyd, 11 F. Supp. 2d 39 (D.D.C. 1998), Judge Lamberth followed Washington, and this Court in a per curiam, unreported decision, affirmed that ruling. 1998 WL 700158 (D.C. Cir. 1998). The only other court of appeals to decide the issue has held, in an unpublished order, that a з 922(g)(1) charge does not constitute a "crime of violence" for purposes of 18 U.S.C. з 3142(f)(1)(A). United States v. Hardon, 149 F.3d 1185, 1998 WL 320945 (6th Cir. 1998) (order reversing district court's denial of detention revocation motion).⁽²⁾

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 з 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 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. xxxxxxxxx detention is based upon the charge of gun possession under з 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 affirmed.

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. з 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

(C) any felony under chapter 109A or chapter 110.⁽³⁾18 U.S.C. з 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); United States v. Robinson, 27 F. Supp. 2d 1116, 1118 (S.D. Ind. 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 its legislative history also support Mr. xxxxxxxxx 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);Robinson, 27 F. Supp. 2d at 1119; 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).

The government also refers to the general objectives in passing the Bail Reform Act, and argues that pretrial detention of individuals charged with this crime is consistent with the purposes of the Act. Gov. Mem at 14-15. What the government ignores in this analysis, however, is the very specific determination by Congress to include as detainable offenses the same types of crimes which triggered the government's right to a detention hearing under the pre-existing District of Columbia detention statute. the District of Columbia pretrial detention statute, D.C. Code 1981 з 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 з 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).⁽⁴⁾ 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. з 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.⁽⁵⁾ 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).

As an initial matter, the government concedes that possession of a firearm under 18 U.S.C. з 922(g) is not a "crime of violence" under subsection (A) of 18 U.S.C. з 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)"). Gov. Mem at 8. The commission of a з 922 offense, unlike a з 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 з 922(g) mere possession offense from з 924(c)(1) "use" offense). Thus, subsection (A) "cannot apply to mere possessory offenses such as the one proscribed by 18 U.S.C. з 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. з 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 з 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. з 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. з 924(e), and concluding that з 922(g) is not a "violent felony"). Therefore, because the crime of possessing a firearm does not, in and of itself, involve a substantial risk of physical force being used in the commission of the offense, it is not a crime of violence.

The government argues that the lower court's reading of the statute renders з 3156(a)(4)(B) indistinguishable from з 3156(a)(4)(A). See Gov. Mem. at 8-9. It is the government, however, that confuses these two subsections. The government argues that subsection B does not require that physical force have been used, attempted or threatened in the commission of the offense, and "to read such a requirement into subsection B, makes it virtually (and illogically) indistinguishable from subsection A." Gov. Mem at 9. However, the lower court does not suggest that anything should be "read into" subsection B, or that physical force has to be inherent in the offense to satisfy the requirements of that subsection. Rather, the lower court relies on the plain meaning of the language of subsection B, which requires that the nature of the offense involve a "substantial risk" of physical force being used "in the course of committing the offense." Thus, subsection B would cover crimes like murder, 18 U.S.C. з 1111, manslaughter, 18 U.S.C. з 1112, attempted murder or manslaughter, 18 U.S.C. з 1113 or common law burglary, all of which present a "substantial risk" of physical force in the course of their commission, but none of which include as an "element of the offense the use, attempted use, or threatened use of physical force," as required in subsection A.

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⁽⁶⁾ to the erroneous conclusion that possession of a firearm is a crime of violence. See, e.g., Washington, 907 F. Supp. at 485; Sloan, 820 F. Supp. at 1137-40.

As is apparent, the government in arguing that a з 922(g) charge constitutes crime of violence, relies 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, for example, Mr. xxxxxx 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.⁽⁷⁾ Clearly, drunken driving and crimes similar to it were not the types of crimes contemplated by Congress in enacting з 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 з 922 violations are not crimes of violence for purposes of з 3142(f)(1)(A). Doe, 960 F.2d at 224; Powell, 813 F. Supp. at 909; see Gloster, 969 F. Supp. at 97-98.

In its memorandum, the government argues that a з 922(g) violation is an "on-going," not a static, offense which "may lead to the use of the firearm." Gov. Mem. at 9-10 (quoting United States v. Phillips, 732 F. Supp. 255, 263 (D. Mass. 1990)). Yet, the charge in this indictment, and in virtually every з 922(g)(1) case, is that the defendant on a particular day, having previously been convicted of a felony, possessed a firearm or ammunition. The charge, by its nature, refers to a discrete instance when an individual allegedly possessed a gun or ammunition; it does not refer to a period of time during which an individual possessed such items. See, e.g., United States v. Garces, 133 F.3d 70, 72 (D.C. Cir. 1998) (gun found during search of a car); United States v. Hill, 131 F.3d 1056, 1057 (D.C. Cir. 1997) (gun discovered in yard where police saw defendant throw it); United States v. Jackson, 113 F.3d 249, 250 (D.C. Cir.) (gun found during investigatory stop of car), cert. denied, 118 S. Ct. 252 (1997); United States v. Moore, 104 F.3d 377, 379 (D.C. Cir. 1997) (guns found during search of car).

The government argues that the prior conviction element of the charge transforms the nature of the crime from a simple possessory offense. Gov. Mem. at 8-13. Yet, in making this argument, the government ignores the Supreme Court's holding in Old Chief, that the convicted felon element of the offense "goes to an element entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit the current offense." Old Chief v. United States, 117 S. Ct. 644, 655 (1997) (emphasis added). In addition, it is unreasonable to infer categorically that a person's conviction for a crime carrying a term of imprisonment of greater than one year means that such a person is more likely to be "violent." As the Supreme Court noted in Old Chief, a defendant is subject to prosecution under з 922(g)(1) even if his or her only felony conviction is for possession of short lobsters, pursuant to 16 U.S.C. з 3372. Id.

In its attempt to support this faulty premise, the government points to the potential dangers posed by firearm possession by individuals previously convicted of a felony. Gov. Mem. at 12-13. However, as noted by the lower court in Gloster, and by Judge Friedman in Gloster, and then-Chief Judge Breyer in Doe, this analysis focuses on "future risk, whereas the statute requires that the risk occur in the course of committing the offense." Gloster, 969 F. Supp. at 98 (citing United States v. Doe, 960 F.2d 221, 225 (1^st Cir. 1992)). Even assuming for purposes of this argument that the government is correct that as a general, theoretical matter individuals previously convicted of a felony may be more dangerous than those without such a record, this fact is irrelevant in determining whether the crime of simple possession of a firearm is a crime of violence. See Doe, 960 F.2d at 225 ("simple possession, even by a felon, takes place in a variety of ways (e.g., in a closet, in a storeroom, in a car, in a pocket) many, perhaps most, of which do not involve likely accompanying violence"); Gloster, 969 F. Supp. at 95 ("A felon can violate Section 922(g) 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 a bed.").

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. з 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. з 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. з 4B1.2 comment., n.2.⁽⁸⁾

Similarly, 18 U.S.C. з 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. з 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 з 924(e)(1)'s "violent felony" provision. See Doe, 960 F.2d at 223-226.⁽⁹⁾ 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; Robinson, 27 F. Supp. 2d at 1119 ("If anything, the difference between pretrial detention and sentencing would tend to cut in favor of a broader rading of the term at sentencing than before trial.")

Finally, acknowledging as it must that in every other context a Section 922(g)(1) offense has been held not to be a crime of violence, the government argues a different interpretation is justified in the pretrial detention context. Gov. Mem. at 15-19. The problem with the government's effort to distinguish these other contexts is that it ignores the striking similarity among the various definitions of crime of violence. The government fails to provide any authority for the proposition that the plain meaning of a statutory or regulatory term should be interpreted differently based on the statute or guideline in which that term appears. Moreover, the government can not point to any other context in which the charge of possession of a firearm, even by a convicted felon, is considered a crime of violence.⁽¹⁰⁾

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 з 922(g) to be included as one which qualified an accused for pretrial detention under 18 U.S.C. з 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. з 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. з 3142(f)(1)(A).

Accordingly, this Court should affirm the lower court's order finding that 18 U.S.C. з 922(g)(1) does not constitute a crime of violence under the Bail Reform Act.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

Neil H. Jaffee

L. Barrett Boss

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 30^th day of April, 1999, 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

Billy G. Ponds

1000 Potomac Street, NW

Suite 302

Washington, DC 20007

__________________________

L. Barrett Boss

Assistant Federal Public Defender

ADDENDUM

CONTENTS OF ADDENDUM

The following opinions are included in the addendum:

The unpublished opinion in United States v. Hardon,

No. 98-1625, 149 F.3d 1185, 1998 WL 320945 (6^th Cir., June 4, 1998) A-1

1. Several of the district judges have followed Judge Friedman's ruling, see, e.g., United States v. Brewster, Crim. No. 97-265 (July 15, 1997) (Sullivan, J.), while others, including Judge Lamberth in the instant case, have found Judge Hogan's analysis persuasive, see, e.g., United States v. Anderson, Crim. No. 97-329 (D.D.C. Sept. 5, 1997) (Kollar-Kotelly, J.); United States v. Henry, 935 F. Supp. 24, 25-26 (D.D.C. 1996) (Sporkin, J.). Given the ruling by Chief Judge Johnson in United States v. McAllister, Crim. No. 97-495M (Aug. 20, 1997), all three of the Magistrate-Judges have held that з 922(g)(1) charges do constitute crimes of violence and routinely hold detention hearings in these cases.

2. The Sixth Circuit permits citation of its unpublished decisions "[i]f counsel believes . . . that [the decision] has precedential value in relation to a material issue in a case and that there is no published opinion that would serve as well . . . ." Sixth Circuit Rule 24(c). Therefore appellant's citation of the unpublished order in Hardon is permitted under D.C. Circuit Rule 28(c). A copy of the Hardon order is included in the addendum to this memorandum at A-15.

3. Chapter 109A pertains to offenses involving sexual abuse and chapter 110 sets forth offenses involving sexual exploitation and other abuse of children.

4. Recently, this section was amended to expressly include possessory weapons offenses within its ambit. See Gloster, 969 F. Supp. at 96 n.7. As Judge Friedman noted, "Congress could easily do the same" to the federal bail statutes. Id.

5. Although, as discussed above, in the present case the legislative history does support the plain meaning of the statute.

6. We take issue with the government's suggestion that a majority of courts have adopted the position which it espouses in this appeal. To begin with, there are "relatively small number of published opinions" and they are "divided" on this issue. Robinson, 27 F. Supp. 2d at 1118. In addition, it bears mention that the only other court of appeals to have addressed this issue, the Sixth Circuit, held this charge does not constitute a crime of violence. See United States v. Hardon, 149 F.3d 1185 (6^th cir. 1998) (unpublished).

7. Another example of an offense which could be considered a "crime of violence" under this expansive approach is simple possession of PCP since this drug has been known to cause individuals to become extremely violent.

8. In United States v. Stinson, 508 U.S. 36, 47 (1993), the Supreme Court held that this Application Note was binding on all federal courts.

9. The First Circuit, in Doe, also noted that several states, including Alabama, Hawaii, Minnesota, Missouri, Pennsylvania, Rhode Island, South Carolina, South Dakota and Utah, had statutes similar to 18 U.S.C. з 924(e) with language defining terms such as "crimes of violence" and "violent felony." Those definitions normally included crimes such as burglary and arson; they never included crimes such as felon-in-possession. Doe, 960 F.2d at 225.

10. When the District of Columbia amended its pretrial detention statute in 1997, the possessory weapons offenses were classified as "dangerous" crimes under subsection 3 of that statute, not as crimes of violence (which are defined subsection 4). See D.C. Code 1981 з 23-1331(3) (Supp. 1997).