U.S. v. Campbell

• Decision Date: 20 November 1998
• Docket Number: No. 98-CR-6084L.,98-CR-6084L.
• Citation: 28 F.Supp.2d 805
• Parties: UNITED STATES of America, Plaintiff, v. Kenneth CAMPBELL, Defendant.
• Court: U.S. District Court — Western District of New York

28 F.Supp.2d 805

UNITED STATES of America, Plaintiff, v. Kenneth CAMPBELL, Defendant.

No. 98-CR-6084L.

United States District Court, W.D. New York.

November 20, 1998.

Joel L. Violanti, U.S. Attorney's Office, Buffalo, NY, for U.S.

Donald M. Thompson, Rochester, NY, for Kenneth Campbell.

DECISION AND ORDER

LARIMER, Chief Judge.

Defendant, Kenneth Campbell ("Campbell"), was indicted on November 12, 1998, in a two-count indictment. His brother, Roderick Campbell, is also named in the indictment. At defendant's first appearance, the Government moved for detention on two separate grounds: first, under 18 U.S.C. § 3142(f)(1)(A), on the grounds that he was charged with a "crime of violence" as defined by 18 U.S.C. § 3156(a)(4); and under 18 U.S.C. § 3142(f)(2)(A), because he poses a serious risk of flight.

The Court conducted a detention hearing on November 17, 1998. Both the Government and the defendant proceeded by way of proffer and there was extensive argument on the law and facts.

At the conclusion of the hearing, the Court announced from the bench its decision to grant the Government's motion and ordered defendant detained pursuant to § 3142(e), there being no condition or combination of conditions that would assure the appearance of Campbell and assure the safety of the community. The Court stated orally its reasons for ordering detention on both grounds, and I specifically incorporate those findings here although I do intend to set forth now in writing my reasons for detention.

A. Crime of Violence

The first issue relates to whether the Court has jurisdiction to entertain the Government's motion for detention under § 3142(f)(1)(A) upon an indictment charging the illegal possession of a firearm by a felon under 18 U.S.C. § 922(g)(1). On this aspect of the Government's motion, the Court must determine whether it can entertain the Government's motion for detention. If the crime at issue is not a "crime of violence" then the Government has no basis to move for, and I have no authority to grant, detention in such a circumstance.

When the Government has moved to detain a defendant, the district court must undertake a two-step inquiry. The court must first determine by a preponderance of the evidence that the defendant either has been charged with one of the crimes enumerated in § 3142(f)(1) or that the defendant presents a risk of flight or obstruction of justice. If the court finds that either of these conditions exists, the court must determine whether any condition or combinations of conditions of release will protect the safety of the community and reasonably assure the defendant's appearance at trial. United States v. Friedman, 837 F.2d 48, 49 (2d Cir.1988).

Under the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., the court is required to hold a detention hearing upon the Government's motion in any case that involves a "crime of violence ..." 18 U.S.C. § 3142(f)(1)(A). "Crime of violence" is defined in 18 U.S.C. § 3156(a)(4) as

(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;

(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 [sexual abuse] or chapter 110 [sexual abuse and other exploitation of children] ...

The simple possession of a firearm by a felon, without more, does not fall within subsections (A) or (C) of this section. The issue, then, is whether it falls within subsection (B), i.e., whether 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."

The courts have been divided over whether a violation of § 922(g)(1) constitutes a crime of violence for purposes of § 3142(f)(1)(A). See United States v. Carter, 996 F.Supp. 260, 263 (W.D.N.Y.1998) (collecting cases). Before undertaking an analysis of this issue, however, I must decide which of two approaches to use: the "categorical" approach, or the "case-by-case" approach. Under the categorical approach, the court looks only to the intrinsic nature of the offense itself as it is defined by statute, and does not consider any of the specific facts surrounding the alleged offense. See, e.g., id. 996 F.Supp. at 262; United States v. Gloster, 969 F.Supp. 92, 94 (D.D.C.1997). In contrast, under the case-by-case, or "fact specific" approach, the court may consider the actual conduct of the defendant and the circumstances under which the alleged offense was committed in determining whether there was a substantial risk of physical harm. See, e.g., United States v. Epps, 987 F.Supp. 22, 24 (D.D.C. 1997).

As stated by Magistrate Judge Feldman of this district in Carter, which involved alleged unlawful transportation of firearms in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(b), most courts favor the categorical approach. 996 F.Supp. at 262 (collecting cases). I too find the categorical approach preferable. Treating all defendants charged with a certain offense in the same manner avoids the risk of ad hoc justice or arbitrary distinctions. Carter, 996 F.Supp. at 262; United States v. Johnson, 704 F.Supp. 1398, 1400 (E.D.Mich.1988).

Moreover, this method is consistent with the statutory scheme. For one thing, § 3156(a)(4) refers to "the element[s] of the offense" and whether the offense "by its nature" involves a risk of physical force. Those terms suggest that the court should look to the statutory definition of the offense rather than the particular facts of the case. United States v. Hardon, 6 F.Supp.2d 673, 674 (W.D.Mich.), rev'd on other grounds, 149 F.3d 1185 (table), 1998 WL 320945 (6th Cir. 1998).

The categorical approach is consistent with the statutory scheme in another way as well. If the risk of violence is inherent in the offense charged, § 3142(f) requires the court to hold a hearing to determine whether the defendant should be detained. It is at that juncture that the court is to consider the facts of the case as they bear upon the factors set forth in § 3142(g). Gloster, 969 F.Supp. at 95; United States v. Washington, 907 F.Supp. 476, 484-85 (D.D.C.1995).

Applying the categorical approach here, I find more persuasive the reasoning of those courts that have concluded that a violation of § 922(g)(1) is a crime of violence for purposes of the Bail Reform Act. The Second Circuit has not addressed this issue, which appears to be one of first impression in this circuit. A number of district courts from other circuits, however, have found that a felon-in-possession offense is a crime of violence as defined in § 3156(a)(4). See, e.g., United States v. Floyd, 11 F.Supp.2d 39, 40 (D.D.C.1998), aff'd, ___ F.3d ___, 1998 WL 700158 (D.C.Cir.1998) (per curiam; unreported decision); United States v. Butler, 165 F.R.D. 68, 71-72 (N.D.Ohio 1996); Washington, 907 F.Supp. at 485; United States v. Sloan, 820 F.Supp. 1133, 1139 (S.D.Ind.1993); United States v. Aiken, 775 F.Supp. 855, 857 (D.Md.1991); United States v. Phillips, 732 F.Supp. 255, 263 (D.Mass.1990); Johnson, 704 F.Supp. at 1403; United States v. Jones, 651 F.Supp. 1309, 1310 (E.D.Mich.1987).

It appears that only two courts of appeals have addressed this precise issue at this point, and both did so in unreported decisions, which, under the rules of those circuits, are not to be cited as precedent. In Floyd, ___ F.3d ___, 1998 WL 700158, the Court of Appeals for the District of Columbia Circuit stated that the district court had "properly determined that possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) is a crime of violence as that term is used in the Bail Reform Act, 18 U.S.C. § 3156(a)(4)(B)." In Hardon, however, the Court of Appeals for the Sixth Circuit reversed a district court decision, Hardon, 6 F.Supp.2d 673, in which the court had held that a § 922(g)(1) violation is a crime of violence. Hardon, 149 F.3d 1185 (table), 1998 WL 320945. Without elaboration, the Sixth Circuit stated that "[p]ossession of a firearm and ammunition by a felon in violation of 18 U.S.C. § 922(g)(1), by their [sic] nature, do not involve such a risk [that physical force may be used during the commission of the offense]." Id., 149 F.3d 1185, 1998 WL 320945 *1 (citing Gloster, 969 F.Supp. at 95). In addition, several district courts have ruled that a felon-in-possession offense is not a crime of violence for purposes of the Bail Reform Act. See, e.g., Gloster, 969 F.Supp. at 95; United States v. Powell, 813 F.Supp. 903, 908 (D.Mass.1992); United States v. Whitford, No. 92-73-J, 1992 WL 188815 *4 (D.Mass.1992).

As stated, I concur with the reasoning of those courts that have reached the conclusion that a § 922(g)(1) offense is inherently a crime of violence as that term is defined in § 3156(a)(4)(A). Although simple possession of a firearm may not be violent in a literal sense, the court must look to the statutory definition of "crime of violence." The statute does not require actual violence in the commonly understood sense of that word. Instead, it requires only that the offense be a felony that, "by its nature, involves a substantial risk that physical force" may be used. 18 U.S.C. § 3156(a)(4)(B) (emphasis added). For a number of reasons, I find that the unlawful possession of a firearm by a felon inherently poses such a risk.

First, this conclusion is consonant with Congress's intent, for "[t]he history of the firearm laws reveals the strong congressional conviction that an armed felon poses a substantial threat to all members of society." United States v. O'Neal, 937 F.2d 1369, 1375 (9th Cir.1990); Phillips, 732 F.Supp. at 263 ("Congress prohibited the possession of firearms by felons because it believed that possession of a firearm is particularly dangerous when it is...