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United States v. Cherry

United States District Court, District of Columbia

December 27, 2016

UNITED STATES OF AMERICA
v.
JAMES CHERRY, Defendant.

          DETENTION MEMORANDUM

          G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE.

         This matter comes before this Court upon an application by the United States that Defendant James Cherry (“Defendant”) be detained pending trial. Defendant has been charged by Indictment with two counts of Threatening and Conveying False Information Concerning Use of an Explosive, in violation of 18 U.S.C. § 844(e) and one count of Threatening and Conveying False Information About an Attempt or Alleged Attempt to Use a Destructive Device Against Railroad Carrier Equipment in violation of 18 U.S.C. § 1992(a)(9), (10), and (b)(1). At Defendant's initial appearance on December 19, 2016, the Court granted the government's request for temporary detention pursuant to 18 U.S.C. § 3142(f)(1)(A), (D), and (2)(A), and scheduled a detention hearing with the parties' consent. The undersigned held the detention hearing on December 22, 2016, and, at its conclusion, found that the defendant should be held without bond. This memorandum is submitted to comply with the statutory obligation that this Court submit “written findings of fact and a written statement of the reasons for the detention” as required by section 3142(i)(1) of the Bail Reform Act.

         I. FINDINGS OF FACT

         A. The Charged Offenses

         At the detention hearing, the United States proceeded by proffer based on the Indictment and offered two exhibits for the Court's consideration: (1) records of Defendant's previous criminal pleas and convictions in Washington, D.C., Florida, and Maryland; and (2) FBI notes from Defendant's statements given during the investigation in this case on August 11, 2016, November 15, 2016, December 5, 2016, and December 16, 2016. The defense offered no contrary evidence on the merits of the offense, nor challenged any aspect of the government's factual proffer. Accordingly, the Court makes the following findings of fact:

         Defendant stands charged with placing a series of hoax 911 emergency calls on July 25, 2016 and July 27, 2016 that contained specific threats of imminent bombings directed at property in Washington, D.C., at the National Railroad Passenger Corporation (“Amtrak”), and at travelers at Union Station in Washington, D.C. Specifically, an individual, later identified as Defendant, made the following threats by calling 911 from the same cell phone number:

• On Monday, July 25, 2016, at 6:20 p.m., the caller stated that there were two bombs - one in a building located at 1818 Pennsylvania Avenue and one in a building three blocks away - about to explode. When the emergency operator asked for the name of the caller, he replied “[y]our mama.”
• On Monday, July 25, 2016, at 6:31 p.m., the caller stated that “[t]here are bombs, two bombs.”
• On Wednesday, January 27, 2016, at 5:06 p.m., the caller spoke indecipherably before stating that “[t]here are eight bombs, eight bombs at Union Station set to go off.” The caller then threatened, among other things, that he was going to kill “all you white people.”

         Immediately after receiving the second July 25, 2016 call, law enforcement called the number back twice and reached a voicemail box for an individual named “James” both times. Further investigation revealed that there is no building located at either 1818 Pennsylvania Avenue in the Northwest nor Southeast quadrant of Washington, D.C. Rather, 1818 Pennsylvania Avenue, Northwest is the address of a small park. A number of government buildings sit within a three block radius of that address where another bomb was purportedly planted, including the World Bank, at 1818 H Street, Northwest, and, of course, the White House, at 1600 Pennsylvania Avenue, Northwest. The government proffers that law enforcement notified Secret Service of the July 25, 2016 threats.

         Following the July 27, 2016 call, which threatened eight imminent bombings at Union Station near the end of a workday in the middle of the week, law enforcement quickly began to evacuate the building. After they emptied Union Station and cordoned off the area, the Metropolitan Police Department and officers in the Metro Transit Canine Unit swept the interior and exterior of the building for explosives and hazardous materials. The Joint Terrorism Task Force was mobilized as well and began an investigation into the threat. Though the sweep, which lasted for at least an hour, uncovered no explosive devices, it delayed over a dozen trains on multiple rail systems. That same day, an Amtrak official dialed the number used to make the bomb threat and left a message instructing the caller - that is, Defendant - to return his call.

         Roughly two weeks later, on August 11, 2016, Defendant used the cell phone to return the Amtrak official's call. Defendant revealed that he was at a gas station in Battleboro, North Carolina and was travelling back to Washington, D.C. The FBI immediately dispatched three agents to locate Defendant. The agents identified Defendant at the gas station by calling the cell phone and hearing it ring, and requested to speak with him. After introducing themselves to Defendant and describing the intended nature of their meeting, Defendant claimed that he purchased the cell phone one or two weeks earlier from a man in a homeless shelter in Washington, D.C. One of the agents then played an audio recording of the July 27, 2016 bomb threat, and Defendant denied making the call or any other calls like it. At the end of the interview, Defendant permitted the FBI agents to take the cell phone for additional examination. On August 22, 2016, the FBI learned that the cell phone had been registered to Defendant as early as March 30, 2016.

         FBI agents met with Defendant again on November 15, 2016, this time at a restaurant in Arlington, Virginia. Defendant told the agents that he worked as a tow truck driver and had been living in a homeless shelter for the past month. He also reported to agents that he previously used alcohol and marijuana to cope with frustrations, but that he had been sober for the last several months. In the past, Defendant admitted, he and other homeless individuals would get drunk and make threatening hoax 911-emergency calls on a shared cell phone. In July 2015 specifically, Defendant claimed he called 911 while “high and upset” and falsely reported that eight individuals with backpacks, guns, and rifles were running down the McPherson Square Metro station. Defendant claimed that he thought it would be funny to report the fabricated incident, and said that he watched law enforcement respond at the scene. When the FBI agents explained to Defendant that the procedure for responding to threats like that cause significant disruption for many people, Defendant acknowledged the harm and said that he “just wanted to see everyone react.” Defendant claimed that he used words like “bombs, ” “active shooter, ” and “guys with guns” in his hoax 911 calls because he knew they would elicit reactions from law enforcement. Agents then proceeded to read transcripts of Defendant's calls to 911 on July 25, 2016, at 6:20 p.m., and on July 27, 2016, at 5:06 p.m. Defendant admitted that he “probably” made those calls, but could not remember them in detail because he was frequently intoxicated when making the hoax calls.

         At the end of this conversation, the FBI agents asks Defendant to write out a voluntary confession statement, which he did. In the statement, Defendant acknowledged making the hoax 911 calls from which his current charges stem. He claimed that he was intoxicated and using marijuana while making the false threats and that he acted alone. He also acknowledged that he may have made similar calls in the past. He made these ...


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