ROSEMARY M. COLLYER, United States District Judge.
Defendant Gaddy Little faces drug and gun charges in this Court. See Indictment [Dkt. 1]. He was arrested on Wednesday, January 11, 2017, and appeared for his initial hearing before Magistrate Judge Deborah Robinson on Thursday, January 12, 2017. At that time, the government orally moved to have Mr. Little held without bond, which motion the Judge temporarily granted, pending a detention hearing to be held on Friday, January 13, 2017. At the conclusion of the detention hearing,
During the hearing on January 18, 2017, the Government presented an oral proffer that summarized and expanded on its arguments to detain Mr. Little, as previously presented in its written Motion for Emergency Stay. With the exception of the quantity of PCP charged, these facts were not seriously disputed by Mr. Little:
Mr. Little argued for release pending trial and offered three reasons to support a finding that he was not a danger to the community or a flight risk. First, Mr. Little argued that the seriousness of the offense was exaggerated because although the indictment charged 100 grams or more of PCP, the officers who recovered the items only categorized them as "drug paraphernalia," not actual drugs, which constitutes a lesser offense. Second, Mr. Little challenged the Government's belief that he was a flight risk or a danger by highlighting the amount of time that passed from the original accident and search warrant to the indictment and then from the indictment to his eventual arrest. Mr. Little argued that if the Government actually believed he was a danger to the community or flight risk, they wouldn't have waited 6 weeks after the indictment to arrest him. Finally, Mr. Little argued that the willingness of the Government to release Ms. Tiffany Mack, his co-defendant and girlfriend, who also lives in the home where the gun and PCP were found, should weigh in favor of his release as well.
The Court queried the parties about the Magistrate Judge's ruling; inasmuch as Judge Robinson did not order Mr. Little detained, she had no need to prepare a detention memorandum and the time between Friday, January 13, 2017 and Wednesday, January 18, 2017 had not allowed for the preparation of a transcript (Monday, January 16 was a federal holiday in recognition of Martin Luther King Jr.).
The Government explained that the Magistrate Judge had relied on Mr. Little's medical condition, as he recovers from his broken bones, and so ordered him to be confined to his home. Further, Judge Robinson doubted the presence and amount of PCP charged in the Indictment because there was no field test to confirm that the liquid was PCP and some vials were clear while others were not. Defense counsel quoted the Magistrate Judge as finding "scant evidence" that it was PCP in Mr. Little's home because a photo of many of the vials showed a clear liquid in most while others had some hue. The Magistrate Judge also credited defense counsel's arguments that Mr. Little arguably said there was "no PCP" in his kitchen, not that it was his; and that the seizing officer reported the vials as PCP paraphernalia and not the drug itself. Further, the Magistrate Judge may have been persuaded by defense counsel's arguments (1) that the Government had agreed to the almost-immediate release of co-defendant Ms. Mack; (2) that it was unduly slow to indict Mr. Little and slow to arrest him, so it must not have considered him much of a threat to the community; and (3) that, despite the passage of time, there had been no test of the seized liquid by the Drug Enforcement Administration (DEA) to prove that it was PCP.
Before this Court, the Government proffered that both the seizing and arresting officers had separately explained that the choice of "paraphernalia" on their report was entered in error in usage of the computer program's drop-down box and that each of them clearly smelled PCP in the vials; that, unlike Mr. Little, co-defendant Mack has a prior history of only one Driving
As stated above, Magistrate Judge Robinson ordered Mr. Little released at the end of his detention hearing. Relying on 18 U.S.C. § 3145(a), the Government appealed to this Court to stay and review that order. Section 3145(a) states:
Id. On such a motion, the court considers de novo the question of pre-trial detention, by taking evidence, recalling witnesses or reviewing transcripts, or proceeding through proffer and argument at its discretion. See United States v. Sheffield, 799 F.Supp.2d 18, 19-20 (D.D.C. 2011). New arguments may also be raised by the parties. The Court uses the tests and standards set forth in the Bail Reform Act, 18 U.S.C. § 3142, to determine whether a defendant should be released or detained pending trial. The Bail Reform Act begins by presuming that release with some set of conditions will ensure a defendant's appearance at trial and protect the community. However, in some situations the Court is required to presume that a defendant should be detained. Section 3142(e)(3) states that
18 U.S.C. § 3142(e)(3).
Despite the presumption, the Court "must evaluate the weight of the evidence against each defendant seeking reconsideration of the detention orders and pretrial release to determine whether detention is proper." United States v. Muschetta, 118 F.Supp.3d 340, 344 (D.D.C. 2015) (citing 18 U.S.C. § 3142(g)(2)). The Bail Reform Act instructs the Court to consider the following four factors when determining if detention is appropriate:
18 U.S.C. § 3142(g).
The Court ordered that Mr. Little be detained pending trial.
First, the Court was persuaded by its own knowledge of the attributes of PCP, including its smell, and the use in PCP street sales of one-half or ounce vials as were seized, many containing some amount of smelly liquid. The Court finds no reason to challenge the proffer that the Park Police determined, based on the look and smell of the liquid in the vials, that they contained some amount of PCP. The Court was also persuaded by the seizure of multiple packs of Newport cigarettes,
As a result of these findings, this Court was not persuaded that there was "scant evidence" of the presence of PCP in Mr. Little's residence as found by the Magistrate Judge. Defense counsel's challenge to the charged amount of PCP is not convincing for the reasons articulated above. While it is possible that tests by the DEA, now ordered, will confirm a lesser amount of PCP seized from Mr. Little's residence,
The Court considered the nature and characteristics of the offense and found that because the offense involves the possession with intent to distribute large quantities of PCP, that factor weighed in favor of detention. Additionally, after considering the proffer of evidence by the government, the Court found the weight of the evidence, that Mr. Little admitted that the gun found in the residence was his, and the amount of drugs and drug paraphernalia found in the residence, also weighed in favor of detention. The history and characteristics of the Defendant also weighed in favor of detention. Mr. Little has multiple prior convictions for narcotics convictions involving PCP and a prior conviction for a firearm offense. Mr. Little also has a history of reoffending while on probation or supervised release for other offenses. The Court, therefore, found that the first three factors weighed in favor of detention.
Defense counsel's arguments focused on the final factor, the potential danger to the community should Mr. Little be released, and the risk of flight. Counsel argued that the quick release of co-defendant Ms. Mack, who is charged with the same crimes, demonstrates that the government had no belief that Ms. Mack would flee and no basis to believe that Mr. Little, especially in his injured condition, would flee. More critically, perhaps, defense counsel attacked the government's delay, between the October 11, 2016 head-on collision in Maryland and the December 7, 2016 return of an indictment in D.C. Indeed, after obtaining the Indictment on December 7, the government delayed until January 11, 2017 to arrest the Defendant. These delays, according to defense counsel, demonstrate that the government recognizes that Mr. Little is not a flight risk; that he did not leave his house after the search date of October 18, 2016 (except for court appearances) and is not a danger to the community; and that he can, therefore, be released to home confinement.
The Court concluded that Mr. Little's injuries supported a finding that he was not a risk of flight but does not diminish the potential danger to the community through continued dealing of PCP from his home. The Court did not draw any conclusions from the delay in indicting or arresting Mr. Little. The Government is permitted to make its own determinations on when to indict a defendant and without evidence of abuse or some facts to support that the delay was due to a lack of danger, the delay does not affect the detention analysis. Similarly, the Court, without other facts or evidence, will not conclude that the time between Indictment and arrest demonstrates Mr. Little is not a danger to the community.
Mr. Little's access to PCP and crack is demonstrated by his criminal history and the drugs seized from his car and home. Not only was a Taurus .45 caliber gun found under the couch cushion directly next to Mr. Little, but ammunition for that gun and numerous other guns was retrieved from his residence, indicating possible use of or access to other weapons. The money seized during the search also supports a finding of drug dealing and community danger. See United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013) (noting that evidence of large amounts of cash, drugs, and previous arrests establishes probable cause to believe the defendant was dealing drugs). It is not improbable that lying on a mattress in his living room, gun at the ready, Mr. Little could
After considering the nature and circumstances of the offense, the weight of the evidence against Mr. Little, the history and characteristics of Mr. Little, and the nature and seriousness of the danger to the community if Mr. Little were released, the Court found that Mr. Little failed to rebut the presumption of detention and that Mr. Little's prior record of continuing crime while on probation or release also supported detention.
For the reasons stated in open Court on January 18, 2017, and in the above opinion, the Court reversed the Magistrate Judge's decision to release Mr. Little, found him a danger to the community, and ordered him detained pending trial.
