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UNITED STATES v. CARTER

February 23, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL LEE CARTER, Defendant.



The opinion of the court was delivered by: FELDMAN

 PROCEDURAL BACKGROUND

 After granting the government's request for a short continuance, a detention hearing was held on February 16, 1998. Both the government and the defendant proceeded by proffer. For the reasons that follow, the government's motion for detention is denied.

 DISCUSSION

 Pretrial Detention and the Bail Reform Act of 1984 : "In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno, 481 U.S. 739, 755, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987). Thus, "the Bail Reform Act limits the circumstances under which a district court may order pretrial detention." United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988). A judicial officer may hold a detention hearing only if one of six specifically enumerated circumstances exist: (1) the defendant is charged with a "crime of violence", (2) the defendant is charged with an offense for which the punishment is life in prison or death, (3) the defendant is charged with a serious drug offense, (4) the defendant is charged with a felony and has twice been previously convicted of certain serious or violent crimes, (5) there exists a "serious risk" that the defendant will flee or (6) there is a "serious risk" that if released the defendant will obstruct justice or injure, intimidate or harm a witness. 18 U.S.C. § 3142. If one of these six defined circumstances does not exist, the Court is without authority to hold a detention hearing. United States v. Butler, 165 F.R.D. 68, 71 (N.D. Ohio 1996).

 In this case, the government moved to detain the defendant under the first (crime of violence) and fifth (serious risk of flight) grounds set forth above. Because the analysis for determining whether detention is authorized under the "crime of violence" ground differs from the analysis for determining whether a defendant is a serious "risk of flight", these two circumstances are discussed separately below.

 CRIME OF VIOLENCE

 In seeking a detention hearing, the government contends that the firearm offenses with which Carter is charged constitute crimes of violence within the meaning of the § 3142(f)(1)(A) of the Bail Reform Act. To qualify as a "crime of violence", an offense must either be (1) a crime that has as an element of the offense the use or attempted use of force against the person or property of another or (2) a felony that, by its very nature, involves a substantial risk that during the commission of the offense physical force may be used against the person or property of another. 18 U.S.C. § 3156(a)(4). The government concedes that none of the firearm offenses currently pending against Carter have, as elements of the crime, the use or attempted use of physical force. Thus, the government's entitlement to a detention hearing based upon the defendant being charged with a crime of violence depends on whether the charged firearm offenses meet the second definition of a "crime of violence" in § 3156(a)(4)(B), that is; do the charged offenses, by their very nature, pose a substantial risk of the use of physical force during the commission of the offense?

 In determining whether criminal offenses meet the "substantial risk" test, courts have considered two distinct analytical approaches. The first approach, known as the "fact specific" or "case by case" approach allows the court to consider the specific conduct of the defendant in committing the charged offense to determine whether there was a substantial risk of physical harm. The second analytical model, known as the "categorical approach", looks only to the intrinsic nature of the charged offense and not the specific facts and circumstances or the manner in which the defendant allegedly committed the crime.

 Research in this area reveals that the fact specific, "case by case" approach advocated by the government has been specifically rejected by the vast majority of courts construing whether a particular offense qualifies as a "crime of violence". *fn1" Instead, most courts favor the so-called "categorical approach" to measure whether an offense is a "crime of violence". Under the categorical approach, the charged offense is either a crime of violence for all defendants or for no defendants -- an ad hoc or case by case analysis by the judicial officer is simply improper. See United States v. Gloster, 969 F. Supp. 92, 94 (D.D.C. 1997)(In deciding crime of violence issue, Court must "follow 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"); United States v. Washington, 907 F. Supp. 476, 484-485 (D.D.C. 1995)(Whether or not an offense "is a crime of violence should be determined without consideration of the particular conduct on the part of the defendant"); United States v. Powell, 813 F. Supp. 903, 909 (D. Mass. 1992)(The "categorical approach is in harmony with the overall legal landscape of detention jurisprudence, which construes the Bail Reform Act narrowly, mindful that its shores abut choppy constitutional waters"); United States v. Whitford, 1992 U.S. Dist. LEXIS 20689, 1992 WL 188815 (D. Mass.)(adopting the "categorical approach" in determining whether felon in possession charge was a crime of violence); United States v. Aiken, 775 F. Supp. 855, 856 (D.Md. 1991)("court is constrained by section 3142(f)(1)(A) to examine only the intrinsic nature of the offenses and not the actual conduct of the individual"); United States v. Johnson, 704 F. Supp. 1398, 1400 (E.D. Mich. 1989)("Each generic offense must be categorized as either a 'crime of violence' or not a crime of violence; there cannot be a justification for ad hoc classification of criminal activity").

 Based on the foregoing legal authority, this Court finds the "categorical approach" to be the proper analysis to determine whether Carter is charged with a "crime of violence". Because the circumstances in which Carter is alleged to have committed the charged offenses do not determine whether or not the crime is one "of violence", I may not consider his individual conduct in deciding whether he is charged with a "crime of violence". Stated differently, "the question is not what happened in this case but what is the nature of the offense charged, as it bears on the risk of use of physical force in the course of the crime." United States v. Phillips, 732 F. Supp. 255, 261 (D. Mass. 1990)(emphasis supplied).

 Having determined the applicable test and the manner in which it must be applied, I turn now to whether 18 U.S.C. § 922(a)(1)(A) or § 924(b) are, as the government contends, crimes of violence under the Bail Reform Act. If the charged offenses do not squarely fit within the statutory definition of a "crime of violence", "then no matter how dangerous or antisocial a defendant may be", the court may not conduct a detention hearing and a defendant must be released on the least restrictive condition or combination of conditions that will reasonably assure ...


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