*1 out, extent this issue—the pointed under could terminated America,
lease that be UNITED STATES 3607(a) actions aris- in the decided Appellee, —was notices, those arising the 1996 ing from v. *4, id. at the 1998 notices. See from 6380, there- at *13. We Dist. LEXIS U.S. DILLARD, Defendant-Appellant, Jumo court’s conclu- district agree fore prevailing that “Darnet cannot obtain sion Docket No. 99-1741 not receive a where it did party status by referenc- simply in its favor judgment Appeals, United States Court prevailed an issue which ing Second Circuit. Id. action.”
earlier 17, Argued: Dec. 3611(d) argues con Darnet also developers templates 22, 2000 May Decided: to recover plaintiffs” entitled “successful not As district court attorneys’ fees. 3611(d)
ed, finds interpretation of the case in either the Act or law.
support *4, 6380, Dist. LEXIS
See id. at U.S. *14-*
at
Last, challenges Darnet the district attorneys’ award of fees Owners
court’s $48,489.94for work Own-
in the amount of in the earlier actions that came to
ers did present in the matter. See id. at
fruition 6380,
*6, Dist. LEXIS *20. 1999 U.S. Owners, it, was the argues
Darnet actions, earlier
prevailing party those is therefore not entitled Owners any based on attorneys’
to recover fees But the district court
earlier work.
noted, arising although actions arising notices the actions
the 1996 distinct,
from the 1998 notices in all are none-
issues raised four actions *5, id. at deeply
theless intertwined. See *17. Dar- Dist. U.S. LEXIS case such a suggesting
net cites no
situation, attorneys’ the district court’s improper, award to was
fees Owners abuse of in this as-
we find no discretion of the district award.
pect court’s
CONCLUSION reasons, affirm foregoing
For the we in all re-
judgment district court
spects.
«9 LEVAL, Judge: Circuit This appeal question raises the whether felon, previously charged convicted illegal possession of a firearm under 18 § U.S.C. 922(g)(1) reasonably found to dangerous so that no “combination of conditions reasonably release] will [of as- sure ... safety of any person other community,” 3142(e), § and the 18 U.S.C. may be detained pending trial. The an- swer turns on whether being the offense of a convicted felon a firearm (the under “felon-in-pos- offense) session” is a “crime violence” within special definition the Bail Reform Act of 1984. See 3156(a)(4). 3142(f), §§ If the offense definition, special comes within the the Act hearing, person commands a and the will be detained if the court finds him too dangerous to any precau- be released on tionary hand, On conditions. the other definition, it does not within fall (unless hearing detention will be held applies), different basis released, must be no matter likely how it is that he will do violence. The U.S. District Court for the Western C.J.) (Larimer, District York of New or- dered the defendant detained after the J.) Magistrate Judge (Feldman, Mag. found that no combination of conditions of release reasonably could assure the community. The defendant does finding danger- contest the as to his ousness but appeal contends he nonetheless, must, be released because the (Assistant Violanti, Buffalo, Joel L. N.Y. offense does come United Attorney States for the Western within the statute’s definition of “crime of York), District Appellee. of New reject violence.” We his contention and therefore affirm the order detention. (Feder- Clauss, Rochester, William N.Y. al Public Defender for the Western Dis- BACKGROUND York), trict Defendant-Appel- of New In late May police Roch- lant. ester, York New obtained information MESKILL, JACOBS, pos- from informant that Jumo Dillard Before: LEVAL, a handgun. previously sessed Dillard had Judges. Circuit felony
been convicted offense of Judge weapon Meskill dissents criminal separate possession of a opinion. degree. third N.Y. Penal Law 3145(b), By prior provided of this convic- 18 U.S.C. Chief reason 265.02.
tion, Judge upheld Larimer order. prohibited law from the detention Dillard was firearm or ammunition. possessing any fel- appeals contending Dillard 922(g)(1). See 18 U.S.C. *3 offense is not “crime on-in-possession for of the Bail Reform purposes violence” 8, 1999, police Rochester On June Act. under a warrant Dillard’s home searched shotguns, one of two which was found DISCUSSION loaded, as ammunition. well search, police of the obtained a course question felon-in-pos- The whether the girlfriend, from Dillard’s sworn statement by prescribéd session offense section him, who also resided Dillard 922(g)(1) a “crime of within the violence” ” “ told the drugs.’ was ‘involved She the Bail Act meaning of Reform prior, on March police that several months “Act”) (the first in this impression one of 24, 1999, some unknown individuals examining begin by Circuit. We the felon- and, Dillard knocked on their door when in-possession turn to the then it, gun three shots at him. answered fired of the Bail Reform Act in rela- structure question. to this tion 1999, 29, July grand jury On District of New York filed an Western The The offense. Dillard with charging indictment three “un- felon-in-possession statute makes it possession. La- being counts of felon any person lawful for ... who has been facts, Dillard arrest- ter on unrelated was of, any convicted in court a crime punisha- impersonation, charges ed on of criminal by exceeding for imprisonment ble a term possession property criminal of stolen year possess any one to ... ... fire- criminal a controlled sub- arm or of- 922(g)(1). ammunition.” cocaine). (seven of crack pieces stance fense, however, all apply does not by punishable imprisonment crimes for on felon- arraigned Dillard then was year. special more than a definition At in-possession arraignment, indictment. by ... a punishable of “crime term exceed- to detain Dillard government moved ing year” expressly one all of- excludes govern trial. The pending without bail arising regulating fenses under statutes position ment took the the felon-in- ' practices. business by offense defined 921(a)(20)(A)(“The term ‘crime punisha- is a “crime of violence” within the exceeding imprisonment ble a term Act, Bail meaning of the Reform year’ any one does not include ... Federal hearing required was therefore detention pertaining State offenses antitrust 3142(f), Dillard, and that 18 U.S.C. violations, practices, unfair trade restraints findings on the depending made trade, relating other similar offenses hearing, might Magistrate be detained. regulation prac- business Feldman, following Judge Chief Judge ”). definition, By tices .... this ruling Camp Larimer’s in United States v. many excluded felonies from non-violent bell, (W.D.N.Y. 807-08 F.Supp.2d (For scope prohibition. econo- 1998), agreed that the felon-in-possession my expression, throughout offense was “crime of violence” and held possession” we use the term “felon in a hearing as mandated subsection those fall within this refer to felons who 3142(f). Based on the evidence artificially limited class of felonies defined hearing, Judge Feldman determined that 921(a)(20).) by paragraph dangerous Dillard was so no condi Re- adequately protect provisions tions of release would Bail Act, Act. to the Bail community. Turning He therefore ordered Reform form 3142(a)(4) that, specifies for de- Upon paragraph that Dillard be detained. the review charges, fendants arrested criminal combination of conditions” of release pretrial only pursu- “reasonably detention is available assure” the defendant’s (e).1 (e), appearance ant and the to subsection Subsection the communi- 3142(e). (f) ty. § turn, Only if the court finds at specifi- refers subsection hearing that no combination categories eligi- cation of condi- of defendants provide tions (f) will such reasonable assur- for pretrial ble detention. Subsection ance be detained. On the ju- hearing mandates a detention before a hand, other if the arrest offense is not dicial officer for a into falling defendant within the statutory definition of “crime of any categories.2 of six Three of those violence,” no detention hearing will be held categories, (f)(l)(A)-(C), are subparagraphs *4 (unless the defendant comes within some based on the nature of the offense charged detention), other provision for and the de- (of violence”); which the first is a “crime of released, fendant must be no matter how one, (f)(1)(D), on subparagraph the defen- violent dangerous. and (two dant’s record or prior more convic- offenses); two, tions for and specified sub- 3142(f)(1)(A) Although subparagraph (f)(2)(A)-(B), paragraphs on the risk violence,” employs the term “crime of flee, will or defendant either obstruct conventional meaning term does justice juror. or threaten a witness or not govern question. The statute uses (e) specifies Subsection how the evidence that phrase as a term of art provides and hearing weighed is to be and pro- 3156(a)(4) a paragraph special definition judi- vides that detention is required substantially beyond extends the con- cial officer determines that no combination meaning ventional of “crime of violence.” (c) specified of the conditions subsection question Our is therefore not whether fel- reasonably can ap- assure the defendant’s on-in-possession is a “crime of violence” pearance safety persons and other within the conventional meaning community. and the term but whether it falls within defini- assigned by tions the statute. Thus, an arrest for an offense that falls 3156(a)(4) Paragraph defines statutory within “crime of definition of “crime following violence” terms: requires hearing violence” a to determine (a) any whether there exists or “condition As used in [the Act]— 3142(a)(3) provides (46 1. Paragraph Drug also for tem- time Law Enforcement Act porary special U.S.C.App.1901 detention in limited seq.); circum- et or stances, 3142(d). set forth in subsection (D)any felony person if the has been 3142(a)(3). See 18 U.S.C. or convicted of two more offenses de- (A) (C) subparagraphs through scribed in 3142(f) 2. Subsection states: this or paragraph, two or more State (f) hearing. judicial Detention officer or local offenses that would have been —The hearing any (A) shall hold a to determine subparagraphs whether described in offenses through (C) condition paragraph or combination set conditions of this aif circum- (c) forth giving in subsection jurisdiction section will stance rise Federal existed, reasonably appearance assure per- had or a combination of such offenses; required any son as and the other or person (2) community— Upon and the attorney motion of the for the (1) upon attorney upon motion of the judicial Government or offi- Government, motion, in a case involves— cer’s own in a case that in- (A) violence; a crime of volves— (B) (A) offense an for which the a person maximum serious will risk death; flee; imprisonment sentence life or or (C) (B) an offense for which maximum person serious risk will imprisonment years term of of ten attempt justice, or obstruct or threaten, to obstruct or intimidate, prescribed more is injure, attempt in the Controlled Sub- or or (21 threaten, intimidate, seq.), pro- Act injure, stances et Import Controlled Export spective juror. Substances witness or (21 3142(f). seq.), Act U.S.C. 951 et or the Mari- 18 U.S.C. (4) be “crime of violence” whether the statute could satisfied the term an offense do not of them- whose elements
means force, give rise to likelihood of selves (A) ele- [as] that has an uncharacteristically committed in an when use, attempted ment particular violent defendant. fashion use, use of physi- or threatened (An characteristically example might be a against cal force embezzlement, such as nonviolent offense another; property who, in the by a defendant committed (B) that is felo- any other offense course, or commits violence threatens that, nature, in- ny against co-conspirators.) co-workers or risk that volves substantial court, relying district on its earlier force ... be used physical Campbell, F.Supp.2d decision committing in the course of example concluded that the latter offense; or satisfy the statute —the risk of force (C) specified sex offenses [certain must result from the characteristics of pertinent to this case.] offense, than rather defendant’s carrying manner out. See also Unit- (A) (B) must con Clauses *5 7, 12 Singleton, ed States v. 182 F.3d (A) Clause covers of sidered tandem. (D.C.Cir.1999).3 agree. We are inclined to no that fall within the conventional fenses (B) must specifies Clause offense any of tion of a crime of offense violence— ” “by its nature involve the risk that force use actually which an element involves the 3156(a)(4)(B) (emphasis will be used. (B) clearly is or of force. Clause threat added). suggests the requirement This It specifies to cast a wider net. intended would not satisfied when the risk of be to “any at the outset that relates other or nature of force results from conduct meaning other than offense”—“other” defendant rather than from the nature specified in crimes of violence conventional we conclude the offense. Because (A). at the clause It is directed offense eligible case deten- defendant this for necessarily does not involve regardless ques- how tion we answer that “by but its nature involves a substantial tion, we not it in case. need decide this may be physical risk that force used deciding, pur- will assume without We committing of offense.” course poses of risk opinion, this use or 3156(a)(4)(B). speaks of This clause categori- of result from violence must give to a rather possibility, fenses that rise cal nature of the offense and that may certainty, a that force be used. than statute would not be satisfied where is clear from its use of the terms This defendant violence in the commission used physical force ... “substantial risk ordinarily of an offense whose nature does added). (emphasis used.” Id. may be give rise to a substantial of vio- risk be an inevitable concomi Force need not lence. clause re tant of the offense. The does however, the risk of quire, provisions apply use Whether the detention felon-in-possession from the “nature” of the force must result offense. offense, analysis potential question and its for occurrence proceed committing prescribed by arise “in the course whether the offense must the offense.” Id. falls within the terms 3156(a)(4)(B). Act preliminary question A on which the provided The elements of the definition altogether pos- clear whether the is not (B), 3156(a)(4)(B), by clause are: sibility of use force must result from (i) felony; or must be a of the elements of the offense offense nature opinions Singleton, majority ad- 182 F.3d at of district court conclusion. cases). dressing (collecting question have reached the same (ii) gun may the offense must involve a “risk that be in an act By used of violence. definition,
physical may against force be used possessing without gun, one another;” person property cannot gun use commission of act; (iii) gun, violent with a can. that risk must result from the na- one Posses- offense; a gun sion greatly ability ture of the increases one’s to inflict harm (iv) on others and therefore the risk must be that the use involves some risk violence. “in physical force would occur offense; and course of’ the element, to the As third for the same (v) the risk must “substantial.” second, as pertain reasons to the the risk While fifth element —the substantial- of violence results the nature of the requires ity quantitative risk — offense. The offense is the posses- clear, meaning evaluation whose a gun by sion of a convicted felon. The to the first four elements we believe the dangerousness guns and their adaptabil- plainly words the statute cover the fel- ity why to use violent crime is on-in-possession offense. has prohibited possession by their convict- ed felons.4 Criminals who are intent element, As to first there is robberies, murders, committing bank ex- dispute tortions and other crimes of violence char- felony. is a acteristically possess guns aid them The second element whether the asks such criminal acts. Without of a illegal possession firearm involves guns persons such are far capable less physical risk that force be used committing acts The prohibi- of violence. against property of another. *6 gun tion of possession by previously con- designed Firearms are instruments for the protect victed criminals seeks to society force, use of violent physical legal whether reducing of may the risk violence that illegal. Apart target from use prac- for result from possession guns by the of per- sport, tice in firearms have functional By possessing sons inclined to crime. utility other than to threaten or cause law, guns in violation of that previously animals, persons, harm to or property. convicted criminals increase the risk that generally Firearms are regarded therefore they engage in violent acts. The risk equipment as essential of police and mili- from results the nature of the offense. forces, tary designed to them enable to use (and thereof) violent force the threat for fourth requires element that the military peace-keeping By purposes. gun violent use of the that is risked would token, the same firearms are conventional- “in occur the of the of course” commission ly regarded equipment as essential of illegal possession. the of If offense its one criminals in engaged violent crime. While gun uses a in an act of that it possible is to commit violent crimes necessarily during violence pos- occurs possession gun (by without use of gun. session Whether knives, force, acids, using bludgeons, brute only possession gun has of the for a few etc.), poisons, guns are without doubt the during seconds—the seconds which it is potent most and efficient instrument for used for violent purposes posses- has—or reason, they violent crime. For that years, sion it violently only but uses undoubtedly the instrument of choice seconds, a few the violent use in either among majority the vast of violent crimi- necessarily during case in occurs —or nals. possession. posses- course of—the If that possession We think it undeniable that sion is possessor because is gives some gun of a risk rise convicted felon who is from pos- forbidden (dis- 1202(a)(1), accompanying predecessor 4. See note App. 7 and text to the cur- infra statute). cussing legislative history felon-in-possession of 18 U.S.C. rent however, many felons ille- inevita- that convicted violent use will gun, sessing express purpose for the gally possess guns in the course bly occurred have in violent crimes. using them aid of posses- of illegal of the commission n sion. “a If words substantial place risk,” merely required “a risk” the statute short, the Act if the words of In used, we might force physical meanings, possession of normal carry their indisputable that felon- think it a risk gives rise to gun by its nature offense would come within in-possession violence; if that violent use its use contrast, applied if the statute terms. occurs, in the course it will occur if result inevitably violence would is criminal possession; possession offense, commission of offense, will occur use violent the felon-in- equally would be clear possess of the criminal offense course offense would come within It therefore seems clear ion.5 the fact different its terms. Given set definition first four elements of- circumstances 3156(a)(4)(B) apply subparagraph forth risk of produce degrees fense different handgun. illegal possession a felon’s possessed fire- illegally violent use of the arm, is question whether that risk statutory analysis as to part of the substantial. is not so clear is whether which the answer by a felon of violent use convicted risk Recognizing meaning note first that con- “substantial.” clear, absolutely statute on this issue is felon, usage, does not include victed interpretation think the most logical we been all have convicted persons who leads to the the risk conclusion above, the noted stat- felony offenses. As posed The risk of violent use substantial. arising ute offenses expressly excludes fire- a convicted felon’s practices. regulation from the of business per- significant. category arms is 921(a)(20)(A). Thus, per- See 18 U.S.C. is limited to sons under consideration many convicted of non-violent felonies sons (a) already have been those who convicted *7 prohibition. We by covered the (not felony including one crimes of busi- of felons, can that there are convicted assume (b) regulation) charged have been ness definition, who, even within limited the a further fact that with second. Given the so, doing notwithstanding illegality the of respect per- to issue arises of possess gun pleasures hunting, a for the gun notwithstanding a possessing sons so, or collect- target practice, shooting, doing skeet think risk of illegality of we fel- ing. Undoubtedly, arising there are convicted the nature of the violent use from guns posing regarded without cannot be as insubstan- possess ons who offense “substantial,” clear, to it is tial. For the risk be significant risk violence. It is also of correct, argument were in If felon found dissenting opinion 5. bases its the dissent The is proposition that "a felon ‘in years on the novel possession more five after obtain- than committing the ille- [of of offense' the course ing dismissal ihe firearm would be entitled to gal only when possession he firearm] of statute See 18 based on the of limitations. course, asserts, weapon.” That it obtains "is a courts, however, The have course,” very majori- very, and the short any period held that the limitations runs from ty engages sophistry in it views the when subject possession act of that is of illegal committing of the offense course See, e.g., prosecution. v. Greev- United States possession continuing throughout the as ille- 777, er, (6th Cir.1998); 134 778-79 Unit- F.3d gal possession. Fuzer, 517, (7th ed F.3d 518 States v. proscribed by offense The Cir.1994). The "course” of commission firearm; "acquisition” of a it is not the felon’s illegal is course of the offense felon’s of a firearm. The is the possession. long as continues to be committed possession. be in the felon continues to necessary or certainly that all even old law a court that a “[i]f believes defen- poses dant ... a danger [to create the possessions community such most safety], it faces it dilemma—either can of violence. It sufficient that the risk release the defendant to material, prior despite trial significant. important, be or risk fears, reason, it these or can find a such as among think the convicted felons (usu- risk of flight, to detain the defendant possess guns, illegally who number bond). ally by imposing high money In utility do reason guns who so view, the committee’s isit intolerable that causing threatening signif- violence law judges denies the tools to make accept icant. We find difficult to honest and appropriate regard- decisions that the risk of violent use of proposition defendants.”). ing the release such One who guns possess convicted felons them major reforms of the new statute illegally is not “substantial.” provision was the pretrial for detention of meaning of Because the the Act on this categories numerous dangerous defen- to point open dispute, we look for fur- Report dants. And the Senate made clear guidance legislative history. to ther While major indication that this purpose was legislative history contains the relevant pre-existing the Act. “provid[ed] law passages support that could be cited in flexibility too little judges in making question,6 sides of the the most com- both appropriate release decisions regarding pelling legisla- drawn from the indications pose defendants who of ... serious risks history the Bail Reform Act and the tive (internal danger community.” to the Id. felon-in-possession support statute omitted). quotation report suggested that, had focused conclusion on that the Act arose from “broad base of very it would question, have intended support giving judges authority illegally eligible felons community weigh pretrial risks to under Act. for detention 6, release Id. decisions.” U.S.C.C.A.N. at 3188. previously to the 1984 Prior Act law 1966) (the Bail effect Reform Act legislative history of the felon-in- provision made reason possession provision confirms that Con- dangerousness pro- defendant’s gress regarded persons convicted felons as law, community. tect Under- the old pose of ... danger “who serious risks dangerous judges releasing were either de- community.” sponsoring prede- abusing purpose fendants intended cessor to the current bail, by setting it higher offense,7 a level than the Long explained that the Senator S.Rep. defendant could make. See No. 98- categories purpose prohibiting certain (1984), reprinted felons,” including people, “convicted *8 3182,' (report possessing of the these are U.S.C.C.A.N. firearms was because who, actions, Judiciary “persons by Senate Committee on the Bail their have dem- 1984, or stating they dangerous, Reform Act of that under the onstrated that are that portion legislative history 6. The that enacted as an amendment to the Omnibus opposite interpretation 1968, arguably supports the and Crime Control Safe Streets Act a the sentence to the effect that offenses 1202(a)(1). U.S.C.App. 18 1202(a)(1), Section phrase ''crime covered the of violence” are prohibited which felons from re- categories "essentially same the offenses” firearms, ceiving, possessing transporting or can in the that of of the Bail Reform result detention under District overlapped partially pro- the then extant passage Columbia Code. At the time of the (enacted as anoth- visions section Act, the District Colum- Act), provision pro- which er within the same permit not bia Code did shipping transporting hibited felons from gun possession, felony which was not a at that 1986, 1202(a)(1) firearms. In section was history, time. For a discussion see language concerning pos- repealed, and the pp. 98-100. infra 922(g)(1). to session was added predecessor felon-in-pos- to current offense, 922(g)(1), session 18 U.S.C. was judicial if sim- officer finds may dangerous. Stated detained they become to combination of possess not be trusted “no condition or condi- ply, they reasonably to soci- becoming without threat tions will assure” [of release] firearm 14,773 (1968); appearance Rec. see Cong. person’s safety ety.” (statement 3142(e). Senator id. If that find- also others. introducing felon-in-posses- made, in Long, ing is not must be re- hunter, Thus, shooter, do not want the provision target “[w]e sion leased. have committed all criminals who gun presumably habitual collector will be re- presenting sorts of crimes armed hearing, especially leased after the his citizens.”). law-abiding to hazard characteristically offense of conviction does (And violence. if the district involve un construing an The task of court judge good fails to do without reason to so attempting can be seen as to clear statute' poses believe the defendant a substantial legislature would position discern what danger, risk of order of detention will specific taken had it focused on the have Thus, set appeal.) finding be aside legislation. question passing while risk” to be element of “substantial satisfied Posner, The Richard Problems Juris offense does (1990) (“When confronting prudence 273 categorical assumptions result that will statutes, judges ... have to sum unclear merely lead to detention. It unwarranted imagination powers all their mon warning sign, requiring the raises a court place effort to them empathy, particularity to look with individual legislators in the who position selves facts to determine whether detention is they being enacted statute that why warranted. We see reason Con- Black interpret.”); 1 William asked reject gress would wished to have (“For, stone Commentaries *62 since Act. understanding of the all cannot or ex laws cases be foreseen pressed, gen that when the necessary contrast, the conclusion felon-in- applied come to eral decrees of law possession does not come within the Bail cases, there should be some particular Reform Act’s definition of “crime of vio- power defining where vested those lence” would do serious harm to Act’s (had they fore circumstances which been objectives. Felons undoubt- seen) the himself have legislator edly many whose illegal include expressed.”). of firearms is intended for violence. The felon-in-possession of- offense is not a construe the conclusion “crime
To Bail Act’s defi- mean that no matter coming fense as within the of violence” would crime, obviously dangerous does not cause how or how bent on nition of of violence likely any consequences Congress committing an act of violence or terrorism hand, be, possession may avoid. he cannot have wished to On other felon construing felon-in-possession statutory to fall out- be detained unless some other can definition leads to conse- basis for detention be found. The side Act’s quences directly poses whether the opposed question that seem defendant community The conclusion Congress’s danger intentions. *9 3142(e) within under be offense is subsection cannot consid- felon-in-possession found the definition of crime of violence does not ered unless defendant is to be It eligible cause the defendant’s detention. does detention under subsection 3142(f). hearing eligible cause a A who is not more than to consider defendant released, notwithstanding in fact dangerous danger- whether defendant is must be (or flee). likely to will The defendant be ousness.8 ness, recognize applies only 8. We “crime of but it in narrow circum- in addition to 3142(0 a sec- defendant violence” subsection indicates stances—where the threatens dangerous- juror. 18 basis on of a witness or See ond of detention based
97
3156(a)(4)(B)
necessarily
had
explicitly
We believe that
excludes the
it
far
Id. at 9.
focused on the
would have
offense.
issue
subjects
preferred the construction that
carefully
We have
studied the
felon
a deten-
illegally
opinion
persuasive.
and do not find it
hearing, following which
tion
he will
view,
our
there are
numerous flaws
its
dangerous,
released
not found to be
than
(a)
analysis and
reasoning,
opinion
that would mandate the
construction
fluctuates between the claim that selected
regard-
in possession
release of all felons
from the
passages
legislative history ad-
clearly they endanger
less how
the com-
by the
vanced
defendant reveal the con-
munity.
gressional
intent
compel
the court’s
reading
“interpretative
of the statute’s
un-
Our
of the precise
consideration
words
13,
id. at
certainty,”
and the claim that the
Act, coupled
with the legislative
“plain meaning”
Act’s
the court
bars
history
interpretation
to aid in the
of am-
considering the
legisla-
manifestations of
biguous provisions, leads us to the conclu-
government,
tive intent advanced
of felon-in-possession
sion
the crime
(b) Neither claim persuasive.
In our
under section
falls within
view, Singleton misperceives the excerpts
nature,”
3156(a)(4)(B);
“by
the offense
Report
from the Senate
which it
on
relies.
illegal gun possession by person previ-
“plain
statute,
As for the
meaning”
(not
ously
felony
convicted of a
were,
it is not
and if it
plain,
would not
offenses),
including business-regulating
(In
compel
interpretation.
the court’s
“involves a
risk that physical
substantial
furthermore,
part,
supposed plain
force
be used
the course of
meaning is
part
based
the court’s
majori-
committing the offense.” The vast
misinterpretation
scope
of the felon-
ty
ques-
courts that have considered the
statute.) (c)
in-possession
opinion
at-
have agreed
tion
with this interpretation.9
Supreme
tributes
Court in United
Singleton.
U.S.A. v.
The one circum-
Salerno,
739,
States v.
481 U.S.
107 S.Ct.
pause
that gives
(1987)
stance
us
is that the
2095, L.Ed.2d
95
697
views that the
to have
Appeals
(d)
Court
considered the Supreme
express,
Court did not
question
D.C. Circuit —reached
presumption
relies on the
of inno-
—the
v.
opposite conclusion. See United States
Supreme
cence and
attributes
Court
(D.C.Cir.1999).
Singleton,
7
182 F.3d
Sin-
the view
of innocence
presumption
meaning”
gleton
“plain
supports
interpreta-
concluded that
court’s
Aiken,
3142(f)(2)(B).
1993);
application
F.Supp.
It has no
to a
United
v.
States
775
poses
855,
a threat
(D.Md.1991);
defendant who
of violence to
United
856-57
States v.
persons
juror.
a witness
other than
255,
(D.Mass.
F.Supp.
Phillips, 732
262-63
Johnson,
1990);
F.Supp.
United States v.
704
719,
Spry,
F.Supp.2d
United
v.
76
States
1398,
(E.D.Mich.1988). Only
1399-1401
four
1999);
720-22(S.D.W.Va.
United States v.
felon-in-posses
district courts have held that
Kirkland,
99-143,
No. CRIM. A.
WL
1999
purposes
sion
a "crime of
is not
violence” for
329702,
(E.D.La.
1999);
21,
May
at *2-3
Act,
doing, they
the Bail Reform
so
703,
Chappelle,
United
F.Supp.2d
States v.
51
generated
split
opinions
within the
their
(E.D.Va.1999);
Camp
704-05
bell,
United States v.
respective districts. See
v.
United States Rob
805,
(W.D.N.Y.
F.Supp.2d
28
808-10
inson,
1116,
(S.D.Ind.
F.Supp.2d
27
1118-19
1998);
Floyd,
F.Supp.2d
United
v.
States
11
Gloster,
1998);
F.Supp.
United States v.
969
39,
(D.D.C.),
(D.C.Cir.
aff'd,
40
But as
detail be-
explain
greater
we
in the Dis-
categories
offenses described
low,
interpretive
the external
aids invoked
terms dan-
trict of Columbia Code’
Singleton are in some cases strained
for
unconvincing,
gerous
irrelevant.
crime
violence
others
and crime of
justification
And we can see no
hearing may
be held
which
detention
unambiguously
court’s claim that the Act
(quoting
that statute.” See id. at 13
under
offense.
excludes the
98-225,
(1984),
at 6
S.Rep. No.
view,
In our
both claims fail.
(ellipsis
original;
U.S.C.C.A.N.
added)).
material
Because the
bracket
(b)
Report.
refusing
While
Senate
at the time did
District of Columbia Code
grounds
“plain meaning,”
even
pos-
for felons
legislative
provide
from the
passages
consider the
*11
(it
does),10Singleton
by
on the
federal
subparagraph
session
now
relies
statute
quoted
meaning
3142(f)(1)(C).
as
the above
statement
Singleton
If the
court were
fel-
Congress
intended to exclude the
correct
no federal offense
on-in-possession
scope
offense from the
deemed covered
it was not included in
detention under the
eligibility for
federal
(of
list,
(B)
then
D.C.Code’s
clause
(“Con-
13 n. 11
statute. See
lence as an element
are therefore
patible
plain meaning
with the
comparable to the
in the
offenses covered
(A)
view,
words of the statute.
our
none of
federal
act
clause
3156(a)(4)), or
drug
convincing.
offenses covered
these is
law,
provision
pos-
including
10. A
federal
firearm
"dangerous
within
firearms
the definition of
felony.
session was not a
court
crime" was added to the D.C.Code in 1997.
categorically asserts that this is “irrelevant”
(3)(F) (as
See D.C.Code 23—1331
amended
"Congress
incorporate
and that
wanted
the Zero Tolerance for Guns Amendment Act
then
D.C.
list of crimes that were
listed in the
(1997)).
D.C. Law 11-273
mailing explosives). various poisons committing “in the course the offense.” added). taken as a (emphasis phrase,
Of course it is true that the defendant This whole, subject plainly only to the actions or likely to flee to detention refers satisfy ele necessary under other faceti subsection conditions to each some Here, 3142(f), may But not all ment of “the the offense he be detained. offense.” a persons weapon by who acts of violence are is the a felon. intend likely committing in A “in the to flee. well established felon is course of Those community escape only weapon. their de- when obtains may hope offense” he tection other than the but not flee. Some indeed who No element vengeful weapon by a felon is needed for conviction. against intent on violence abuser, spouse or What felon does or does not do with alienated former lover to, adds nor risk” force weapon physical neither subtracts derives from the from, explained felon-in-possession As United commission of- offense. (D.C.Cir. fense. weapon v. Whether the is used in the Singleton, 182 F.3d States future is irrelevant. Our 1999), concern is the aspect charged “some offense felon-in-possession offense and offense create the risk of violence in order to must committed instant of A possession. a crime of Id. qualify itself as violence.” felon subsequently weapon who uses necessary at 14. The to commit the act against another is “in the course felon-in-possession obtaining or offense— offense, committing” another not “in the weapon possessing while felon—does committing course of [felon-in-posses- not itself involve “a risk” of substantial appropriate sion] offense.” The time physical force. encompasses frame only the nec- conduct majority parses statutory lan- essary to commit the guage giving into elements to several avoid offense. When considering the felon-in- natural and to meaning definition its possession offense and the “in the course create an none It ambiguity where exists. committing” requirement, the course is to justify policy does so its discussion very short course.1 Because statute perusal legislative history. its of uncertain requires charged us look majority argues that a felon in posses- to determine whether the of physical risk a weapon poses sion of a substantial risk of force derives from the commission of that that, ipso physical facto, force and offense, speculate it is inappropriate to of’ committing risk occurs “in the course a felon-in-possession whether defendant pure the offense. This strikes me as so- may commit “crime of violence” in the If phistry. the statute defined a future. “that, “crime as one violence” Otherwise, I holding admit that the fel- nature, physi- involves a substantial risk of on-in-possession offense not to fit within force,” majority’s reading cal would be statutory definition of a “crime of vio- However, plausible. the statute includes purposes lence” the Bail Reform Act “in limiting language the course of poten- result the release of some *17 committing the offense.” tially dangerous individuals. are There majority attempts avoid limit- and, policy arguments affirming valid ing language by interpreting “in course I a Congress, were still Member of I could committing “during” the offense” as court, however, act on them. As a our role possession. majority posits then interpretation language is limited to in possession “substantial risk” a felon Congress drafting used in statute. We will, point at some his or “during” future statutory language should not misread the possession, engage physi- her continued carry Congress may in order to out what against person cal Al- property. force have accomplish intended but failed to though interpretation may this have some majority it language chose. The states all, superficial of a appeal the use Congress explicitly “had focused on —after possession— must weapon during occur its it preferred the issue have far ignores import it of the limitation. majority That bemay [the construction].” so, of’ in con- “[I]n course must read justify misinterpreting but it does not junction “committing the offense” used. language language Because clear, continuing pos- such that conduct of of majori- the statute is much sessing weapon ty’s cannot be the frame much time discussion and criticism Singleton misplaced. used to consider whether “substantial Even some However, weapon may possession 1. A felon in of a be in footnote felon violation of 18 for the du- only briefly committing” "in the course possession, alleviating ration of the thus that offense. majority's statute of limitations concerns arguments supporting s flawed, the-correct re- reached
sult. carry short, attempts to majority intended
out what believes carry out Certainly, try should
do. we However, do we should
Congress’ intent. plain language ourselves limiting
so forget person We should
used. violating felon-in-posses-
arrested for is, stage of the criminal
sion statute presumed to be innocent. We
proceeding, lightly deprive presumably
should not Nor we
innocent bail. should risk of
subject an individual to the such few facts are stage at a when previ- than that the individual
known other felony has of a
ously been convicted with, of, but convicted charged
now weapon. language to me and I would
the statute is clear with instructions set
vacate and remand
bail. COULTHURST, R.
Dorrell
Plaintiff-Appellant,
v. *18 America,
UNITED STATES of
Defendant-Appellee. No. 98-2860
Docket Appeals,
United States Court Circuit.
Second 11, 1999
Submitted: June 31, 2000 May
Decided: