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United States v. Lee

United States District Court, District of Columbia

August 30, 2016

UNITED STATES OF AMERICA,
v.
BRADLEY LEE, Defendant.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE

         On June 7, 2016, defendant Bradley Lee was indicted on one count of interference with interstate commerce by robbery, in violation of 18 U.S.C. § 1951. Indictment [Dkt. # 13] at 3. He was not arrested until July 27, 2016, when he was apprehended in Rochester, New York. See Rule 5 Letter [Dkt. # 25]; Bradley Lee Arrest Warrant [Dkt. # 26]. On August 11, 2016, after he was transferred back to this District, the government moved for his temporary detention. Oral Mot. for Temporary Detention (Aug. 11, 2016); Min. Entry (Aug. 11, 2016).

         After a hearing on August 23, 2016, the Magistrate Judge ordered that the defendant be released into the High Intensity Supervision Program, on personal recognizance. Min. Entry (Aug. 23, 2016); Order (Aug. 23, 2016) [Dkt. # 30]. The government asked the Court to stay the pretrial release order and sought review of the Magistrate Judge's denial of the detention motion. Mot. for Emergency Review & Appeal of Release Order [Dkt. # 27] (“Gov't Appeal Mot.”). The Court granted the motion, stayed the Magistrate Judge's release order, and set a detention hearing for August 24, 2016. Order (Aug. 23, 2016) [Dkt. # 28]. The government renewed its motion for pretrial detention the next day, Mot. for Pretrial Detention [Dkt. # 29] (“Gov't Detention Mot.”), and the defendant opposed it. Def.'s Suppl. to Record [Dkt. # 35] (“Def.'s Suppl.”).

         The detention hearing was held on August 24, 2016, and continued on August 25, 2016. Min. Entry (Aug. 24, 2016); Min. Entry (Aug. 25, 2016). At the conclusion of the hearing, the Court granted the government's motion and ordered the defendant to be held without bond. In reaching that decision, the Court considered the relevant law, the allegations presented in the indictment, the motion and opposition, the evidence presented at the hearings, and the information provided by the Pretrial Services Agency, as well as the statements and arguments of counsel. Based on the record before it, the Court found by clear and convincing evidence that there was no condition or combination of conditions that could “reasonably assure the appearance of the [defendant] as required and the safety of any other person and the community” if defendant was released. See 18 U.S.C. § 3142(g). The reasons for the Court's decision are set forth in more detail in this Memorandum Opinion; in sum, there is a presumption of dangerousness that has not been rebutted, and there is significant evidence of defendant's efforts to flee from the police and evade capture, including the undeniable fact that he was apprehended in Rochester, New York.

         BACKGROUND

         This case involves a series of armed robberies allegedly committed by a small group of friends and relatives in various combinations. At the detention hearing and in pleadings filed before the Court, the government proceeded by proffer, and it also presented evidence, including surveillance footage, still photographs, social media postings, a videotape of statements made by the defendant after his arrest, and the testimony of Special Agent Charles Rooney, the FBI case agent who investigated the robberies in question. Defendant also presented evidence and offered testimony from his girlfriend of five years, Faith Hudson. Based on the pleadings filed and the evidence presented in this case to date, the Court makes the following findings of fact.

         The indictment charges, among other offenses, that defendant Bradley Lee, his brother Breyon Lee, and an individual named Gregory Hull committed a robbery in violation of the Hobbs Act on December 21, 2015. Indictment at 3; Mem. Op. & Order (July 1, 2016) [Dkt. # 24] at 2.[1]On that date, at 8:33 p.m., four individuals entered the Rite-Aid pharmacy located at 4635 South Capitol Street, S.W., with their faces covered. Mem. Op. & Order at 2. Surveillance footage shows that one of the individuals hopped the front counter and pointed a gun at the cashier. Id. According to an eyewitness, the man told the cashier to give him the money from the register or he would kill him. Id. A second individual pointed a second gun at a different eyewitness who was at the counter purchasing items, and he told her to stay down. Id. As this was occurring, security camera footage shows a third individual hopping over the pharmacy counter, taking several bottles of medicine, and crossing back over the counter. Id. The four men then left the store together. Id.

         An eyewitness alerted passing Metropolitan Police Department (“MPD”) officers to what had occurred and directed the officers to a white BMW parked nearby, which the suspects had just entered. Id. The suspects fled in the BMW into the Barry Farms neighborhood in Washington, D.C., where they bailed out of the car and fled on foot. Id. Officers eventually apprehended defendant Hull, but they did not locate any of the other suspects. Id. Inside the BMW, police found three bottles of medicine, at least two of which appear to have originated at the Rite-Aid. Id. at 2-3. Fingerprints belonging to Hull and another indicted defendant, Anthony Burns, were found in the BMW. Id. at 3. Defendant's brother, Breyon Lee, was later determined to be the source of fingerprints recovered from the spot where the third robber placed his hand as he vaulted the pharmacy counter. Id.

         Four fingerprints belonging to defendant Bradley Lee were found on or inside the BMW. Gov't Detention Mot. at 2. In addition, the government has proffered that the suspect they believe to be the defendant was shown entering the Rite-Aid on the surveillance footage wearing a black “True Religion” brand hooded sweatshirt with white piping and black jeans, an outfit which matches clothing worn by the defendant in a photograph posted to social media by co-defendant Burns in late 2015. Id. at 2-3.

         The government has also put forth evidence, including surveillance footage, that tends to tie defendant Bradley Lee to at least two additional armed robberies of two 7-11 convenience stores on December 12, 2015. See Id. at 3. Surveillance photographs show that a suspect in the 7-11 robberies was wearing the black “True Religion” brand hooded sweatshirt with white piping similar to the one the government proffers was worn by defendant Bradley Lee during the Rite-Aid robbery. Id. On top of the hoodie, the suspect was wearing a parka-like jacket with a fur-trimmed hood that appears similar to a jacket worn by defendant's brother, Breyon Lee, in a photograph taken during a January 7, 2016 arrest. Id. A second suspect was wearing clothing associated with one of defendant's co-defendants, Anthony Burns, and the third was wearing clothing associated with defendant's brother, Breyon Lee. See Gov't Ex. 1. In carrying out the two 7-11 robberies on December 12, 2015, it appears from the surveillance video that the perpetrators followed a procedure similar to the one involved in the Rite-Aid robbery.

         On June 7, 2016, the grand jury returned a superseding indictment, charging defendant Bradley Lee, his brother Breyon Lee, and Gregory Hull with the Rite-Aid robbery. Indictment at 3. Count Four charges that those defendants took merchandise belonging to a Rite Aid Pharmacy located at 4635 South Capitol Street, S.W., Washington, D.C., “from the custody and possession of employees of that store, against their will by means of actual and threatened force, violence, and fear of injury, immediate and future, to their persons.” Id.[2]

         On June 17, 2016, defendant's brother, Breyon Lee, was arrested in the District of Columbia. Breyon Lee Arrest Warrant [Dkt. # 14]; Gov't Detention Mot. at 3.[3] At the detention hearing, Special Agent Rooney testified that he was the FBI case agent assigned to investigate the string of armed robberies in the District and Maryland, and that he was surveilling Breyon and Bradley Lee as part of that investigation when he observed both defendants cross the street within a few feet of his unmarked vehicle and join a group of several individuals outside of an apartment complex. Special Agent Rooney testified that he called MPD officers to the scene to arrest both defendants, and that as the MPD officers approached the group of individuals, Bradley Lee turned and walked quickly away. Special Agent Rooney added that he observed Bradley Lee turn and look back over his shoulder before ducking into a nearby apartment building. Breyon Lee was arrested, but Bradley Lee was not apprehended on that date, despite efforts to locate him.

         On July 27, 2016, more than five weeks after his brother was apprehended, Bradley Lee was arrested in Rochester, New York. Gov't Detention Mot. at 3. Special Agent Rooney testified that he was informed by the arresting agents that defendant fled from the officers during the arrest, but did not get very far before he was apprehended. Defendant's own witness, Ms. Hudson, confirmed this account, as she told the Court that when the agents in Rocheter appeared on the street and called the defendant's name, he ran. The government proffered that while defendant was being held after his arrest, he told the agents that “he had run from ‘MPD' in D.C., ” that “he knew an arrest warrant had been issued for him because his friends who were incarcerated told him, ” and that “he was relieved he was apprehended so that he did not have to be on alert at all times.” Id. He also allegedly told the arresting agents “that his mother wanted him to turn himself [in], ” but that “this was not something he wanted to do.” Id. Defendant's own witness, Ms. Hudson, confirmed that defendant spoke to his mother and other family members regularly while he was staying with her in Rochester.

         The government introduced an FBI Form 302 completed by the arresting agents which memorializes these statements, as well as a video of the comments made by the defendant while sitting in the custody of the FBI Agents in Rochester. During the nearly two-hour video, defendant proudly volunteered that he had been well aware that he was under surveillance in the District and in Rochester, and that he had managed to elude police in the District.

         STANDARD OF REVIEW

         The Bail Reform Act of 1984, 18 U.S.C. § 3142 et seq., provides that if a judicial officer finds by clear and convincing evidence 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, such judicial officer shall order the detention of the person before trial.” 18 U.S.C. §§ 3142(e)(1), (f)(2)(g). Even if defendant does not pose a flight risk, danger to the community alone is a sufficient reason to order pretrial detention. United States v. Salerno, 481 U.S. 739, 754-55 (1987); United States v. Simpkins, 826 F.2d 94, 98 (D.C. Cir. 1987).

         Congress also specified in the Bail Reform Act that a judicial finding that there is probable cause to believe that the defendant committed certain offenses - including the offense of using or carrying a firearm during and in relation to a crime of violence, or possessing a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A) - gives rise to a rebuttable presumption that a defendant is a danger, and that no pretrial condition or combination of conditions will be sufficient to protect the community. 18 U.S.C. § 3142(e)(3)(B).

         Once a rebuttable presumption has been triggered, “the presumption operate[s] at a minimum to impose a burden of production on the defendant to offer some credible evidence contrary to the statutory presumption.” United States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985) (emphasis in original); see also United States v. Portes, 786 F.2d 758, 764 (7th Cir. 1985) (the presumptions in § 3142(e) “are ‘rebutted' when the defendant meets a burden of production by coming forward with some evidence that he will not flee or endanger the community if released”), quoting United States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986); United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991) (“[A] defendant must introduce some evidence contrary to the presumed fact in order to rebut the presumption.”), citing United States v. Matir, 782 F.2d 1141, 1144 (2d Cir. 1986). While the burden of production may not be heavy, see United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991), the applicable cases all speak in terms of a defendant's obligation to introduce “evidence.”

         And, as the court explained in United States v. Ali, 793 F.Supp.2d 386 (D.D.C. 2011), even if the defendant offers evidence to counter the presumption, the presumption does not disappear entirely:

At oral argument, defendant's counsel posited that the rebuttable presumption functions as a “bursting bubble” that ceases to exist once a defendant produces any credible evidence. Although the D.C. Circuit has not expressly ruled on this issue, circuits that have considered the issue require using the presumption as a factor ...

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