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A convicted felon’s subsequent possession of a firearm is a “crime of violence” under the Bail Reform Act of 1984 and justifies his detention pending trial, the 2nd Circuit U.S. Court of Appeals has ruled in a case of first impression in the circuit. A divided panel in United States v. Dillard, 99-1741, upheld the decision of a Western District judge to jail the defendant. Jumo Dillard already had a felony conviction for third-degree gun possession when police, acting on a tip, found two shotguns at his Rochester, New York, home in 1999. One of the guns was loaded. Indicted on three counts of being a felon-in-possession of a firearm, Dillard appeared before Western District Magistrate Judge Jonathan W. Feldman for arraignment and possible bail. The government moved to detain Dillard until trial, saying the gun possession was a crime of violence under the act, 18 U.S.C. ��3142(f)(1)(A) and 3156(a)(4)(B). Following a hearing, U.S. Magistrate Judge Feldman found that Dillard was so dangerous that there were no conditions of release that could adequately protect the community. On review, Western District Chief Judge David G. Larimer upheld the order. Writing for the Second Circuit, Judge Pierre N. Leval said the definition of the term “crime of violence,” is outlined in ��3156(a)(4)(A) and (B) of the act. Subsection (A) offers a conventional definition — “the use, attempted use, or threatened use of physical force.” But subsection (B), Judge Leval said, is “clearly intended to cast a wider net.” It reads that a crime of violence is also “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force … may be used in the course of committing the offense.” The facts of Dillard’s case met this definition, he said. “To construe the felon-in-possession offense as coming within the Bail Act’s definition of crime of violence does not cause any consequences Congress is likely to have wished to avoid,” he said. “On the other hand, construing felon-in-possession to fall outside the Act’s definition leads to consequences that seem directly opposed to Congress’s intentions.” Ruling that the element of “substantial risk” within subsection (B) is met by a felon-in-possession does not “result in categorical assumptions that will lead to unwarranted detention,” Judge Leval said. “It merely raises a warning sign, requiring the court to look with particularity at the individual facts to determine whether detention is warranted,” he concluded. Judge Leval said he found unpersuasive the reasoning that led the D.C. Circuit to reach the opposite conclusion in U.S. v. Singleton, 182 F3d 7 (1999). DISSENTING VOICE But Senior Circuit Judge Thomas J. Meskill agreed with the D.C. Circuit’s thinking in Singleton, saying he believed the “plain language of the ‘crime of violence’ definition” in the Bail Reform Act, should not have led to the pretrial detention of Dillard. “There are valid policy reasons for affirming and, were I still a member of Congress, I could act on them,” he said. “As a court, however, our role is limited to interpretation of the language Congress used in drafting the statute. We should not misread the statutory language in order to carry out what Congress may have intended but failed to accomplish by the language it chose.” Judge Dennis G. Jacobs joined in the majority. Assistant U.S. Attorney Joel L. Violanti represented the government. William Clauss represented Dillard.

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