U.S. v. Dillard
| Decision Date | 01 August 1999 |
| Docket Number | Docket No. 99-1741 |
| Citation | 214 F.3d 88 |
| Parties | (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. JUMO DILLARD, Defendant-Appellant, |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from an order of detention pending trial entered by the United States District Court for the Western District of New York (David G. Larimer, District Judge), based on its conclusion that possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1) is a "crime of violence" as defined by the Bail Reform Act, 18 U.S.C. §§ 3142(f)(1)(A) and 3156(a)(4)(B). The magistrate judge (Jonathan W. Feldman, Magistrate Judge) held a detention hearing and ordered the defendant detained based on a finding that no combination of conditions of release would reasonably assure the safety of the community. The district court affirmed. The Court of Appeals (Leval, J.) affirms.
JOEL L. VIOLANTI, Buffalo, N.Y. (Assistant United States Attorney for the Western District of New York), for Appellee.
WILLIAM CLAUSS, Rochester, N.Y. (Federal Public Defender for the Western District of New York), for Defendant-Appellant.
Before: MESKILL, JACOBS, and LEVAL, Circuit Judges.
This appeal raises the question whether a previously convicted felon, charged with illegal possession of a firearm under 18 U.S.C. § 922(g)(1) and reasonably found to be so dangerous that no "combination of conditions [of release] will reasonably assure . . . the safety of any other person and the community," 18 U.S.C. § 3142(e), may be detained pending trial. The answer turns on whether the offense of being a convicted felon in possession of a firearm under section 922(g)(1) (the "felon-in-possession" offense) is a "crime of violence" within the special definition of the Bail Reform Act of 1984. See 18 U.S.C. §§ 3142(f), 3156(a)(4). If the offense comes within the special definition, the Act commands a hearing, and the person will be detained if the court finds him too dangerous to be released on any precautionary conditions. On the other hand, if it does not fall within the definition, no detention hearing will be held (unless a different basis of detention applies), and the person must be released, no matter how likely it is that he will do violence.
The U.S. District Court for the Western District of New York (Larimer, C.J.) ordered the defendant detained after the Magistrate Judge (Feldman, Mag. J.) found that no combination of conditions of release could reasonably assure the safety of the community. The defendant does not contest the finding as to his dangerousness but contends on appeal that he must, nonetheless, be released because the felon-in-possession offense does not come within the statute's definition of "crime of violence." We reject his contention and therefore affirm the order of detention.
In late May 1999, the police in Rochester, New York obtained information from an informant that Jumo Dillard possessed a handgun. Dillard had previously been convicted of the felony offense of criminal possession of a weapon in the third degree. See N.Y. Penal Law § 265.02. By reason of this prior conviction, Dillard was prohibited by law from possessing any firearm or ammunition. See 18 U.S.C. § 922(g)(1).
On June 8, 1999, the Rochester police searched Dillard's home under a warrant and found two shotguns, one of which was loaded, as well as ammunition. In the course of the search, the police obtained a sworn statement from Dillard's girlfriend, who also resided with him, that Dillard was "'involved in drugs.'" She told the police that several months prior, on March 24, 1999, some unknown individuals knocked on their door and, when Dillard answered it, fired three gun shots at him.
On July 29, 1999, a grand jury in the Western District of New York filed an indictment charging Dillard with three counts of being a felon in possession. Later on unrelated facts, Dillard was arrested on charges of criminal impersonation, criminal possession of stolen property and criminal possession of a controlled substance (seven pieces of crack cocaine).
Dillard then was arraigned on the felon-in-possession indictment. At arraignment, the government moved to detain Dillard without bail pending trial. The government took the position that the felon-in-possession offense defined by section 922(g)(1) is a "crime of violence" within the meaning of the Bail Reform Act, that a detention hearing was therefore required by 18 U.S.C. § 3142(f), and that Dillard, depending on the findings made at the hearing, might be detained. Magistrate Judge Feldman, following Chief Judge Larimer's ruling in United States v. Campbell, 28 F. Supp. 2d 805, 807-08 (W.D.N.Y. 1998), agreed that the felon-in-possession offense was a "crime of violence" and held a hearing as mandated by subsection 3142(f). Based on the evidence at the hearing, Judge Feldman determined that Dillard was so dangerous that no conditions of release would adequately protect the community. He therefore ordered that Dillard be detained. Upon the review provided by 18 U.S.C. § 3145(b), Chief Judge Larimer upheld the detention order.
Dillard appeals contending that the felon-in-possession offense is not a "crime of violence" for purposes of the Bail Reform Act.
The question whether the felon-in-possession offense prescribed by section 922(g)(1) is a "crime of violence" within the meaning of the Bail Reform Act of 1984 (the "Act") is one of first impression in this Circuit. We begin by examining the felon-in-possession offense and then turn to the structure of the Bail Reform Act in relation to this question.
The felon-in-possession offense. The felon-in-possession statute makes it "unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess . . . any firearm or ammunition." § 922(g)(1). The offense, however, does not apply to all crimes punishable by imprisonment for more than a year. The special definition of "crime punishable by . . . a term exceeding one year" expressly excludes all offenses arising under statutes regulating business practices. See 18 U.S.C. § 921(a)(20)(A) (). By this definition, Congress excluded the majority of non-violent felonies from the scope of the prohibition. (For economy of expression, throughout this opinion we use the term "felon in possession" to refer to those felons who fall within this artificially limited class of felonies defined by paragraph 921(a)(20).)
The detention provisions of the Bail Reform Act. Turning to the Bail Reform Act, paragraph 3142(a)(4) specifies that, for defendants arrested on criminal charges, pretrial detention is available only pursuant to subsection (e).1 Subsection (e), in turn, refers to subsection (f) for a specification of the categories of defendants eligible for pretrial detention. Subsection (f) mandates a detention hearing before a judicial officer for a defendant falling into any of six categories.2 Three of those categories, subparagraphs (f)(1)(A)-(C), are based on the nature of the offense charged (of which the first is a "crime of violence"); one, subparagraph (f)(1)(D), on the defendant's prior record (two or more convictions for specified offenses); and two, subparagraphs (f)(2)(A)-(B), on the risk that the defendant will either flee, or obstruct justice or threaten a witness or juror. Subsection (e) specifies how the evidence at the hearing is to be weighed and provides that detention is required if the judicial officer determines that no combination of the conditions specified in subsection (c) can reasonably assure the defendant's appearance and the safety of other persons and the community.
Thus, an arrest for an offense that falls within the statutory definition of "crime of violence" requires a hearing to determine whether there exists any "condition or combination of conditions" of release that would "reasonably assure" the defendant's appearance and the safety of the community. § 3142(e). Only if the court finds at the hearing that no combination of conditions will provide such reasonable assurance may the person be detained. On the other hand, if the arrest offense is not within the statutory definition of "crime of violence," no detention hearing will be held (unless the defendant comes within some other provision for detention), and the defendant must be released, no matter how violent and dangerous.
Although subparagraph 3142(f)(1)(A) employs the term "crime of violence," the conventional meaning of that term does not govern the question. The statute uses that phrase as a term of art and provides in paragraph 3156(a)(4) a special definition that extends substantially beyond the conventional meaning of "crime of violence." Our question is therefore not whether felon-in-possession is a "crime of violence" within the conventional meaning of the term but whether it falls within the definitions assigned by the statute.
Paragraph 3156(a)(4) defines "crime of violence" in the following terms:
(a) As used in [the Act]-
(4) the term "crime of violence" means
(A) an offense that has [as] an element . . . 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 . . . may be used in the course of committing the offense; or
(C) [certain specified sex offenses not pertinent to this case.]
Clauses (A) and (B) must be considered in tandem. Clause (A)...
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