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United States v. Malone

United States District Court, District Circuit

October 10, 2013

UNITED STATES OF AMERICA
v.
HERMAN CURTIS MALONE, Defendant.

MEMORANDUM OPINION AND ORDER

ELLEN SEGAL HUVELLE, District Judge.

Defendant Herman Curtis Malone, along with others, has been charged with conspiracy to distribute and possession with intent to distribute one hundred grams or more of heroin and five hundred grams or more of cocaine in violation of 21 U.S.C. § 846, a crime punishable by a minimum of ten years imprisonment. See 21 U.S.C. § 841. The government requested a detention hearing which was held by Magistrate Judge Kay on August 14, 2013. ( See Detention Memorandum ("Det. Mem.") at 1, Aug. 16, 2013 [ECF No. 6].) At the conclusion of the hearing, Magistrate Judge Kay held the defendant pending trial pursuant to 18 U.S.C. § 3142. ( See id. at 4.) Malone thereafter filed a motion to appeal Magistrate Judge Kay's detention order under 18 U.S.C. § 3145(b), which the government opposed. (Appeal from Order of Detention ("Appeal"), Aug. 18, 2013 [ECF No. 8]; Memorandum in Opposition ("Opp."), Aug. 30, 2013 [ECF No. 20].) Malone then filed twelve letters from members of the community in support of his appeal. (Supplemental Letters ("Supp. Letters"), Sept. 12, 2013 [ECF No. 30].)

The Court held a hearing on the motion on September 20, 2013. Following that hearing, the Court requested further briefing and argument. Mr. Malone's counsel filed a Supplemental Submission in Support of his Motion to Vacate ("Supp. Mot."), Oct. 3, 2013 [ECF No. 33], and the government filed a Supplemental Memorandum in Opposition ("Supp. Opp."), Oct. 7, 2013 [ECF No. 37]. The Court heard further argument on October 9, 2013. For the reasons stated in open court, as well as for the reasons set forth herein, the Court will deny this motion.

DISCUSSION

Under the Bail Reform Act, 18 U.S.C. § 3141 et seq., a judicial officer "shall order" a defendant's detention before trial if, after a hearing, "the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." Id. § 3142(e). The judicial officer considering the propriety of pretrial detention must consider four factors:

(1) [t]he nature and circumstances of the offense charged, including whether the offense... involves... a controlled substance, [or] firearm;
(2) the weight of evidence against the person;
(3) the history and characteristics of the person, including... the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings;... and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.

Id. § 3142(g). The government is required to demonstrate the appropriateness of pretrial detention by clear and convincing evidence. See id. § 3142(f). However, when "there is probable cause to believe that the [defendant] committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. § 801 et seq.), " there is a rebuttable presumption that "no condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of the community." Id. § 3142(e). Considering each factor below, the Court agrees with the Magistrate Judge that the government has met its burden and that defendant Malone has failed to rebut the presumption against pretrial detention.

First, the nature and circumstances of the offense favor continued detention. The grand jury found that there is probable cause to believe that Mr. Malone was a member of a conspiracy to distribute and possession with intent to distribute cocaine and heroin, in violation of the Controlled Substance Act, which is punishable by ten years to life. See 21 U.S.C. §§ 841, 846. The government proffered that Mr. Malone was not just a part of this conspiracy, but was a principal by virtue of his role as a large-scale narcotics supplier.

The evidence also shows that large quantities of drugs and guns were involved in this conspiracy. (Det. Mem. at 3; Supp. Opp. at 5-6.) For instance, a kilogram of cocaine, one hundred grams of heroin, a loaded, .40 caliber semi-automatic handgun, additional.40 caliber ammunition, and three digital scales (a tool regularly used in the narcotics trade) were found in Mr. Malone's Maryland home.[1] (Det. Mem. at 2.) The problematic nature and circumstances of the offense are further magnified by the fact that Mr. Malone works with children and youth in the community through his basketball program (Assault DC), but it appears that Mr. Malone permitted co-defendant Stephen Williams to bring his minor child to a drug transaction. ( Id. )

Second, the weight of the evidence strongly favors continued detention. On June 4, 2013, co-defendant and co-conspirator Derico Williams was found with a compressed brick of cocaine less than one hour after he stopped at Mr. Malone's home. ( See Supp. Opp. 10-13.) On August 9, 2013, law enforcement stopped Mr. Stephen Williams, a second co-defendant and alleged co-conspirator, after leaving Mr. Malone's home with a black bag. (Det. Mem. at 2) The black bag contained one kilogram of cocaine wrapped in green cellophane. ( Id. ) That same night, law enforcement executed a search warrant at Malone's residence where they found an identically wrapped kilogram of cocaine, additional narcotics, a loaded handgun, and additional tools of the narcotics trade. ( Id. )

The government's proffer illustrates that these were not isolated incidents. On the contrary, cooperating sources indicate that Mr. Malone supplied large quantities of cocaine dating back to 2009. (Supp. Opp. at 7.) There is also evidence that Mr. Malone supplied drugs to co-defendant and alleged co-conspirator Micah Bidgell whose car was found with additional weapons. ( Id. at 6-10.) Finally, the government has proffered ...


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