While Defendants' desire to gather additional information concerning
the content and context of Defendant Alwan's and Defendant Al-Bakri's
statements is understandable, a detention proceeding is not the proper
forum for conducting discovery. Cf. United States v. Contreras,
776 F.2d 51, 55 (2d Cir. 1985) (noting that preliminary criminal hearings
are not intended to be discovery tools for the defendant); cf. Martir,
782 F.2d at 1145 (the Government's proffer need not expose the sources or
proof it will rely upon at trial).
Accordingly, at this stage, this Court finds no cause for further
inquiry into the reliability of the Government's proffer. The proceedings
before Judge Schroeder comported with the Bail Reform Act's hearing
requirements and the governing precedent in this Circuit. This Court
therefore declines to exercise its discretion to require the Government
to present live testimony from the agents involved in taking Defendant
Alwan's and Defendant Al-Bakri's statements.
2. Entry Point: Crime of Violence
Turning now to the statutory framework, pretrial detention under §
3142(e) must be predicated on one of the six entry points enumerated in
§ 3142(f). The Government urges detention on two entry points: (1)
crime of violence under § 3142(f)(1)(A), and (2) serious risk of
flight under § 3142(f)(2)(A).*fn10
In this Circuit, a categorical analysis is employed to determine
whether an offense constitutes a "crime of violence." See, e.g., Dalton
v. Ashcroft, 257 F.3d 200, 204 (2d Cir. 2001) (employing categorical
analysis in examining "crime of violence" under 18 U.S.C. § 16);
Dillard, 214 F.3d at 92 (agreeing that in analyzing "crime of violence"
under 18 U.S.C. § 3156(a)(4)(B) "the risk of force must result from
the characteristics of the offense, rather than from the defendant's
manner of carrying it out"); United States v. Campbell, 28 F. Supp.2d 805,
807 (W.D.N.Y. 1998) (employing categorical analysis in examining "crime
of violence" under 18 U.S.C. § 3156(a)(4)); United States v. Carter,
996 F. Supp. 260, 261-63 (W.D.N.Y. 1998) (rejecting "fact specific"
approach in favor of "categorical approach" in examining "crime of
violence" under 18 U.S.C. § 3156(a)(4)). The categorical analysis
"focuse[s] on the intrinsic nature of the offense, rather than on the
factual circumstances surrounding any particular violation." Dalton, 257
F.3d at 203. This Court finds the categorical analysis applicable here.
The immediate issue is whether 18 U.S.C. § 2339B constitutes a
"crime of violence" under 18 U.S.C. § 3156(a)(4)(B), which defines
"crime of violence" as an 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."*fn11 This Court need not linger on this issue because it finds
itself in agreement with the analysis employed by the Honorable T.S.
Ellis, III, United States District Judge for the Eastern District of
Virginia, who thoroughly addressed this point in United States v.
Lindh, 212 F. Supp.2d 541, 580 (E.D.Va. 2002).
In Lindh, Judge Ellis faced the issue of whether the substantive and
conspiracy offenses of knowingly providing material resources and support
to al-Qaeda in violation of § 2339B were "crimes of violence" within
the meaning of 18 U.S.C. § 924(c)(3)(B).*fn12 Id. at 579. The Fourth
Circuit, like the Second Circuit, requires use of the categorical
analysis to make "crime of violence" determinations. See United States
v. Aragon, 983 F.2d 1306, 1313 (4th Cir. 1993).
Judge Ellis's application of the categorical analysis led him to
conclude that both the conspiracy and substantive offenses of violating
§ 2339B are "crimes of violence." Lindh, 212 F. Supp.2d at 579-80
("Both of these crimes are, by their nature, crimes of violence.") This
Court agrees. As Judge Ellis noted: "[W]hen one provides material support
or resources to a terrorist organization, there is a substantial risk
that physical force against the person or property of another may be used
in the course of committing the offense." Id. at 579 (quotations and
Defendants argue that the "in the course of" language of §
3156(a)(4)(B) limits this Court's inquiry to the offense conduct at
hand.*fn13 (OA Tr. at 105.) Under Defendants' interpretation, this Court
should ignore the inherent risks that stem from Defendants' alleged
offense conduct, and focus solely on whether there existed a substantial
risk of physical force against another or another's property during "the
course of" the commission of the alleged offense itself. This Court
rejects such a constrained inquiry.
The phrase `in the course of committing the offense'
does not mean . . . that courts must be blind to the
natural consequences — the natural risks
— attendant to the aiding and abetting of
terrorism proscribed by Section 2339B. Rather, the
statute requires assessment of the risks that may
result from providing material support or resources to
terrorists in a manner that Section 2339B forbids. It
takes little imagination to conclude that providing
material support and resources to a terrorist
organization creates a substantial risk that the
violent aims of the terrorists will be realized.
Id. at 579-80 (footnote and citation omitted).
This Court also concurs in Judge Ellis's conclusion that providing
support or resources to a terrorist organization in violation of §
2339B is akin to a conspiracy to commit a crime of violence. Lindh,
212 F. Supp.2d at 580. The Second Circuit has consistently found that
conspiracies to commit crimes of violence are, themselves,
crimes of violence. See, e.g., United States v. Elder, 88 F.3d 127,
129 (2d Cir. 1996) (noting that conspiracy to commit Hobbs Act robberies
itself is crime of violence); United States v. Chimurenga, 760 F.2d 400,
403-04 (2d Cir. 1985) (conspiracy to commit armed robbery is a crime of
violence under the Bail Reform Act).
As the Second Circuit stated in Chimurenga:
The existence of a criminal grouping increases the
chances that the planned crime will be committed
beyond that of a mere possibility. Because the
conspiracy itself provides a focal point for
collective criminal action, attainment of the
conspirators' objectives becomes instead a significant
Chimurenga, 760 F.2d at 404 (citing United States v. Greer,