offense when the defendant is a serious risk to obstruct justice
or to threaten, injure or intimidate a witness or juror.
18 U.S.C. § 3142(f)(1)(A-D),(f)(2)(A-B). A hearing in the first
four categories must be preceded by government motion while the
last two may be precipitated by motion of the government or the
There is an argument that while the statutory language
mandates a hearing in the six enumerated categories, it does not
expressly preclude a hearing in others, especially where the
defendant is dangerous. However, the Second Circuit has resolved
that argument. Before it may consider detention, the court must
first decide, by a preponderance of the evidence, that one of
the six categories authorizes a hearing in the first place.
United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988).
This is so no matter how dangerous a defendant might be. Id,
Whether a particular case meets a category's criteria,
however, is also a matter of statutory interpretation. All six
categories are preceded by qualifying language requiring that
the case "involves" the crime or conduct encompassed by the
category. 18 U.S.C. § 3142(f)(1)(2). Thus for example, a case
could involve a crime of violence, thereby precipitating a
hearing, without a crime of violence actually having been
charged. Naturally, the court would have to first conduct a
hearing in order to determine whether the charged offense also
"involved" conduct covered by a category, but such hearings are
consistent with several of the categories in any event. Thus,
the actual charge is irrelevant to the defendant's flight risk
or risk to obstruct justice or threaten or intimidate witnesses
or jurors. See 18 U.S.C. § 3142(f)(2)(A-B). Hearings involving
these risks depend upon factual assertions in support of the
motion to detain, not the charge itself. Of course, there would
be no hearing under any circumstances absent a government motion
or, in two of the categories, absent the court's sua sponte
motion. Therefore, all motions would be predicated on
allegations that the case "involved" the specified risks. The
Fifth Circuit has adopted this logic, holding that a case
involving conduct encompassed by a category requires a hearing
regardless of the specific charge lodged against the defendant.
United States v. Byrd, 969 F.2d 106, 110 (5th Cir. 1992).
Although the Second Circuit appears to disagree, this court is
not certain that it has squarely addressed the issue. In
Friedman, the Circuit stated that the court must first
determine that the defendant has been "charged" with one of the
enumerated crimes. Friedman, 837 F.2d at 49. However, the
charging issue was not before the Court since the government had
conceded that the underlying offense failed to meet the criteria
of those categories where the charge is critical. Friedman at
49; see also, 18 U.S.C. § 3142(f)(1)(A-C). Nonetheless, the
Circuit has articulated and applied the formal charge principle
in subsequent decisions. In United States v. Chimurenga,
760 F.2d 400, 405 (2d Cir. 1985), it ruled, in an analogous context,
that the Bail Reform Act's rebuttable presumption arising from
the use of a gun in furtherance of narcotics trafficking applied
only when the defendant had actually been charged with that
offense. The Court stated that to hold otherwise "would rip the
fabric of the statute's carefully sewn procedural safeguards."
Id. at 405 (internal quotation omitted). And finally,
although stated axiomatically without citation to authority, the
Circuit affirmed the principle in another analogous case,
United States v. Dillard, 214 F.3d 88 (2d Cir.), cert. den.,
___ U.S. ___, 121 S.Ct. 1232, 149 L.Ed.2d 141
(2001). Although the specific issue in Dillard was whether a
charged crime was itself a crime of violence, the Court
nonetheless preceded its discussion by observing:
Thus, an arrest for an offense that falls
within the statutory definition . . . requires a
hearing . . . [I]f the arrest offense is not within
the statutory definition . . . no detention hearing
will be held . . . and the defendant must be
released, no matter how violent and dangerous.
Dillard at 91.
The illegal possession of a shotgun by a previously convicted
felon (18 U.S.C. § 922(g)(1)) is a crime of violence mandating a
detention hearing pursuant to 18 U.S.C. § 3142(f)(1)(A).
Dillard at 104. The evidence overwhelmingly demonstrates that
not only did Carswell, a convicted felon, possess a shotgun, but
he used it under circumstances where Shermell Sherman could
easily have been killed. Since the court specifically found that
Carswell is a recidivist, violent offender who poses an absolute
danger to the community that cannot be ameliorated by any set of
conditions, it would detain him on this basis if it could.
However, since he has not been charged with possession of the
shotgun and since the court may not consider uncharged crimes as
a basis for conducting a hearing in the first place, the court
is powerless to do so.
2. Possession of a Shotgun Shell by a Convicted Felon as
a Crime Of Violence
The court turns to the issue of whether a defendant indicted
as a felon in possession of a shotgun shell has been charged
with a crime of violence. See 18 U.S.C. § 922(g)(1). If so,
the court is empowered to hold a hearing. The issue turns
directly on an interpretation of the Circuit's holding in
Dillard that possession of a gun by a felon is a crime of
violence. Id. at 104. The government interprets Dillard as
holding that all felon in possession charges are crimes of
violence regardless of the items possessed; namely, guns or
ammunition. Naturally, Carswell counters that Dillard applies
only to guns, not ammunition.