U.S. v. Gloster, Crim. No. 96-0375(PLF).

• Decision Date: 03 July 1997
• Docket Number: Crim. No. 96-0375(PLF).
• Citation: 969 F.Supp. 92
• Court: U.S. District Court — District of Columbia
• Parties: UNITED STATES v. Tyrone W. GLOSTER, Defendant.

Page 92

969 F.Supp. 92

UNITED STATES v. Tyrone W. GLOSTER, Defendant.

Crim. No. 96-0375(PLF).

United States District Court, District of Columbia.

July 3, 1997.

Glenn Michael Lennon, Office of Assistant U.S. Attorney, Washington, DC, for Plaintiff.

Teresa Alva, Federal Public Defender for DC, Washington, DC, for Defendant.

OPINION

PAUL L. FRIEDMAN, District Judge.

Tyrone W. Gloster was indicted for the possession of a loaded Ruger 9mm semiautomatic pistol, having previously been convicted of a felony in violation of 18 U.S.C. § 922(g). He was arraigned before this Court on June 12, 1997. At the time of his arrest he was on probation for the commission of another offense — conspiracy to possess with intent to distribute cocaine — of which he was convicted in Prince George's County, Maryland. By order of June 13, 1997, Magistrate Judge Deborah Robinson ordered the defendant held without bond after a detention hearing, based on her finding that Mr. Gloster had been charged with a crime of violence under 18 U.S.C. § 3142(f)(1)(A), and that he therefore was subject to preventive detention under the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. The defendant moved before this Court for reconsideration of Magistrate Judge Robinson's detention order under 18 U.S.C. § 3145(b), and the government moved to enforce it.

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.¹ This Opinion explains the reasons for that decision.²

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).³

"A hearing can only be held if one of the[se] 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).⁴ 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 used in the course of committing the offense.

18 U.S.C. § 3156(a)(4). The crime for which Mr. Gloster was indicted is defined in pertinent part as follows:

It shall be unlawful for any person [] who has [previously] been convicted of [a felony] ... [to] possess in or affecting commerce, any firearm, or ammunition....

18 U.S.C. § 922(g)(1).

As an analytic matter, in deciding whether the felon-in-possession offense is a crime of violence, the Court is to follow a "categorical approach," that is, the Court shall look only to the statutory definition of the offense itself and not to the specific circumstances under which the alleged offense was committed. See United States v. Washington, 907 F.Supp. 476, 484 (D.D.C. 1995); see also Taylor v. United States, 495 U.S. 575, 600-601, 110 S.Ct. 2143, 2159-2160, 109 L.Ed.2d 607 (1990) (categorical approach governs interpretation of the term "burglary" in 18 U.S.C. § 924(e)); United States v. Doe, 960 F.2d 221, 223-24 (1st Cir.1992) (same).⁵ Under the threshold formal analysis required by Congress to determine whether a judicial officer is authorized to conduct a detention hearing under 18 U.S.C. § 3142(f)(1)(A), either the charged offense is a crime of violence or it is not.⁶

The government argues that Mr. Gloster should be detained because the circumstances under which he was arrested, the fact that he was on probation at the time of the offense in this case, the fact that he was rearrested on a drug charge in Maryland between the time of indictment and arraignment in this case, and his substantial prior criminal record all demonstrate his dangerous "proclivities" and thereby render his charged offense a crime of violence. It also argues that he faces enhanced penalties in this case as a result of his prior record.

It is true that Mr. Gloster has a long history with the criminal justice system, including at least a dozen arrests, at least three of which resulted in felony convictions, for such offenses as housebreaking and the possession and distribution of controlled substances. But the Court reads the Bail Reform Act as permitting such a fact-sensitive inquiry only under Sections 3142(e) and (g), that is, after the triggering provisions of Section 3142(f) have been met and detention therefore is available. Under the categorical approach, the Court cannot consider Mr. Gloster's criminal history, personal characteristics or any other factors except the statutory definition of the offense with which he has been charged.

Congress has not defined the offense proscribed by Section 922(g) in such a way as to render it a crime of violence under either Subsection (A) or (3) of Section 3156(a)(4). Section 3156(a)(4)(A) requires that the offense have as an element the "use" (attempted, threatened or actual) of force. Section 922(g) by its terms requires only that an individual who previously has been convicted of a felony "possessed" a firearm; this definition falls short of Subsection (A)'s use requirement. The Supreme Court in Bailey v. United States, ___ U.S. ___, ___, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995) made abundantly clear that in the context of gun offenses, "`use' means more than mere possession," id. at ___, 116 S.Ct. at 506, and that the government must prove "active employment of the firearm by the defendant." Id. at ___, 116 S.Ct. at 505 (emphasis in original). Indeed, the Court expressly distinguished Section 922(g) as a mere "possession" offense from Section 924(c)(1) which is a "use" offense. Id. at ___, 116 S.Ct. at 506. See also United States v. Canon, 993 F.2d 1439, 1441 (9th Cir.1993). Section 3156(a)(4)(A) therefore cannot apply to mere possessory offenses such as the one proscribed by 18 U.S.C. § 922(g).

Subsection (B) of Section 3156 applies where the offense "by its nature, involves a substantial risk that physical force ... may be used in the course of committing the offense." 18 U.S.C. § 3156(a)(4)(B). The heart of the issue, and the source of much discussion among the district courts, is whether the simple fact of being a felon in possession of a weapon, without more, inherently poses a substantial risk that physical force will be used. It is important to...