The opinion of the court was delivered by: FRIEDMAN
On June 17, 1997, this Court ordered the defendant temporarily held without bond for ten days pursuant to 18 U.S.C. § 3142(d) to permit the government to inform defendant's probation officer in Maryland of his indictment in this case. The Court scheduled a further hearing for June 23, 1997. At that hearing, the government represented that a probation violation warrant had been issued, although it was unclear at that time whether the warrant had yet been lodged as a detainer.
After hearing argument from counsel, this Court held that being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), is not a crime of violence and that, absent any other basis for detention under 18 U.S.C. § 3142(f), the Court is not authorized by Congress to order the defendant detained without bond or even to conduct a detention hearing.
This Opinion explains the reasons for that decision.
I. IS DETENTION AVAILABLE?
The Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., authorizes a judicial officer to conduct a "detention hearing" as defined by 18 U.S.C. § 3142(f) and thus to consider detaining a defendant without bond only if one of six specified circumstances exists: (1) if the defendant is charged with a crime of violence; (2) if the offense charged carries a maximum sentence of life imprisonment or death; (3) if the defendant is charged with an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act, the Controlled Substances Import and Export Act, or the Maritime Drug Law Enforcement Act; (4) if the defendant is charged with any felony and the person has been convicted of two or more offenses described in subparagraphs (A) through (C) of Section 3142(f)(1) (namely, circumstances (1), (2) or (3)), or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) of Section 3142(f)(1) if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses; (5) if the defendant poses a serious risk of flight; or (6) if there is a serious risk that the defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror. See 18 U.S.C. § 3142(f).
"A hearing can only be held if one of these six circumstances . . . is present; detention can be ordered only after a hearing is held pursuant to § 3142(f). Detention can be ordered, therefore, only 'in a case that involves' one of the six circumstances listed in (f) . . . ." United States v. Byrd, 969 F.2d 106, 109 (5th Cir. 1992). If after such a hearing
[a] judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the [defendant] before trial.
18 U.S.C. § 3142(e). The threshold question, however, is whether detention is available at all for one of the six enumerated reasons; if not, then no matter how dangerous or antisocial a defendant may be, Congress has concluded that such a defendant must be released, either on personal recognizance or on the least restrictive condition or combination of conditions that will reasonably assure the defendant's appearance and the safety of any other person and the community. See 18 U.S.C. §§ 3142(a)(1)-(3); 18 U.S.C. § 3142(c).
In this case, the issue is whether the offense with which defendant has been charged -- being a felon in possession of a firearm under 18 U.S.C. § 922(g) -- is a crime of violence triggering the provisions of Section 3142(f)(1)(A). The Court concludes as a matter of statutory interpretation that 18 U.S.C. § 922(g) does not define a crime of violence and therefore that defendant cannot be detained on that basis.
A. The Statutory Language
The Bail Reform Act defines "crime of violence" at 18 U.S.C. § 3156(a)(4), using language identical to the language of 18 U.S.C. § 924(c)(3).
To meet the definition the offense must be a felony and be either
(A) an offense that has 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 ...