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United States v. Henry

United States District Court, District of Columbia

December 1, 2017

UNITED STATES OF AMERICA
v.
TIFFANY HENRY, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          COLLEEN KOLLAR-KOTELLY, United States District Judge.

         This matter comes before the Court upon the Government's [9] Motion for Review and Appeal of Release Order with respect to Defendant Angela M. Cortez (“Cortez”) and Defendant Cortez's [14] Motion in Support of Request for Release Pending Trial.[1] A federal indictment charges (1) Defendants Tiffany Henry (“Henry”), Cortez, and Jeremy Albrecht (“Albrecht”) (collectively, “codefendants”) with conspiracy to distribute and possess with intent to distribute marijuana and cocaine, in violation of 21 U.S.C. § 846, (2) Defendant Henry with unlawful use of a communication facility, in violation of 21 U.S.C. § 843(c)(2)(A), (3) Defendants Henry and Cortez with unlawful distribution of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), (4) Defendants Henry, Cortez, and Albrecht with unlawful possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), and (5) Defendants Henry, Cortez, and Albrecht with unlawful possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

         On October 30, 2017, D.C. law enforcement executed a search warrant with respect to an apartment leased by Defendant Henry. Based on the ensuing search, codefendants were each arrested at the apartment, processed in D.C. Superior Court, and released on their personal recognizance. Defendants Henry and Cortez returned to Defendant Henry's apartment. On November 9, 2017, the above-described federal indictment issued, and each of the codefendants was arrested on November 15, 2017. The codefendants initially appeared before Magistrate Judge G. Michael Harvey on November 15, 2017, and a detention hearing was scheduled for November 20, 2017.

         At the hearing before Magistrate Judge Harvey, Defendant Albrecht did not challenge the Government's motion for pretrial detention and was not released. Defendants Henry and Cortez did challenge the Government's respective motions, and Magistrate Judge Harvey ordered that they be released subject to conditions pursuant to 18 U.S.C. § 3142. At the Government's request, Magistrate Judge Harvey stayed the release orders to permit the Government time to appeal. Shortly after the detention hearing, the Government filed the presently pending Government's [9] Motion for Review and Appeal of Release Order with respect to Defendant Cortez, and the defense followed with the [14] Motion in Support of Request for Release Pending Trial. The Court held a hearing on the record on November 30, 2017, to obtain further information from the prosecution and defense counsel regarding Defendants Henry and Cortez, respectively, and the Court made certain findings; all of which are incorporated as part of this Memorandum Opinion.

         The Court has reviewed Defendant Cortez's Pretrial Services Report for United States District Court, the Government's [6] Memorandum in Support of Detention, the Government's [9] Motion for Review and Appeal of Release Order, and Defendant Cortez's [14] Motion in Support of Request for Release Pending Trial; discussed this matter with Magistrate Judge Harvey; and considered the information obtained through the Court's November 30, 2017, hearing. For the reasons set forth on the record at the November 30, 2017, hearing and set forth below, the Court affirms Magistrate Judge Harvey's order releasing Defendant Cortez subject to the conditions he identified.

         I. BACKGROUND

         At the initial appearance before Magistrate Judge Harvey on November 15, 2017, the Government made an oral motion for temporary detention (a three-day hold) of Defendant Cortez. Magistrate Judge Harvey granted this motion, and the detention hearing was set for November 20, 2017.

         The Government proffered evidence to Magistrate Judge Harvey, and again offered this evidence in their pleading on appeal, that Defendant Cortez had participated in a drug transaction arranged by an undercover officer of local law enforcement. The officer communicated directly with Defendant Henry to place the order, and Defendant Cortez arrived at the appointed location bringing the marijuana and THC-infused products that the undercover officer had ordered. This transaction was videotaped. Defendant Cortez was observed departing from and returning to 901 6th Street SW, #509A, Washington, DC 20024, where she was later found upon a search of the premises. The search yielded a large quantity of marijuana and THC-infused products, a smaller quantity of cocaine, and various implements for manufacturing and consuming marijuana and THC-infused products.

         Magistrate Judge Harvey considered whether Defendant Cortez could be released subject to conditions pursuant to 18 U.S.C. § 3142. The Pretrial Services Agency (“PSA”) had recommended on November 15, 2017, that, if Defendant Cortez were to be released, she be released on personal recognizance with required program placement and a weekly reporting in person.

         Magistrate Judge Harvey, on setting the conditions for release, had determined that, under 18 U.S.C. § 3142, Defendant Cortez could be released subject to the following conditions: that she be released on a personal recognizance into the third-party custody of Jesse Salame, a City of San Antonio, Texas, police officer and Defendant Cortez's (ex-)brother-in-law, [2] at whose home she is to live; that she report weekly in person in San Antonio, and comply with courtesy supervision there in their heightened supervision program, including electronic monitoring; that she not apply for, nor possess, a passport, and if she finds her passport, that she surrender it to the PSA; that she comply with weekly drug testing, and treatment, if necessary; and that she be subject to possible revocation of her bond as a result of any rearrest on probable cause for any subsequent offense. Furthermore, Magistrate Judge Harvey's order made clear that, inter alia, “any violation of a condition of release may result in revocation of release, pretrial detention or contempt” and that if Defendant Cortez does not “appear as required, [she] will be subject to prosecution and if convicted, the maximum penalties” may be imposed. ECF No. 10.

         II. THE BALANCE OF FACTORS MILITATES IN FAVOR OF RELEASING DEFENDANT CORTEZ SUBJECT TO CONDITIONS

         The Court reviews de novo whether there are conditions of release that will reasonably assure the safety of any other person and the community. An offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act raises a rebuttable presumption that no conditions or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community. See 18 U.S.C. § 3142(e)(3)(A).

         The rebuttable presumption clearly applies in this case. Because of the cocaine that was seized from the apartment where Defendant Cortez was living, she has been indicted for unlawful possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), among other charges. The prosecution and counsel to Defendant Henry agree, and counsel to Defendant Cortez did not suggest otherwise at the Court's hearing, that the statutory maximum term of imprisonment, thought to be twenty years under 21 U.S.C. § 841(c), is attributable to this cocaine charge rather than to the marijuana-related charges.

         In conducting its analysis of the rebuttable presumption, the Court examines the available information that touches upon: (1) the nature and circumstances of the offense charged, including whether the offense involves a controlled substance; (2) the weight of the evidence against the person; (3) the history and characteristics of the person; and (4) the nature and seriousness of the danger to any person or the community. See 18 U.S.C. § 3142(g). Between a concern for the safety of the community and the risk of Defendant Cortez's flight, at the hearing the prosecutor indicated that the Government's concern is for the safety of the community.

         Upon consideration of these factors, the Court determines that Defendant Cortez has provided evidence to rebut the presumption of detention, which requires “clear and convincing evidence” under 18 U.S.C. § 3142(f). Accordingly, the Court orders that Defendant Cortez be released pending trial subject to the conditions set forth by Magistrate Judge Harvey, as discussed above.

         1. Nature and Circumstances of the Offenses Charged

         Based on the allegations contained in the Government's [6] Memorandum in Support of Detention, the charges underlying this case originated with the Metropolitan Police Department's (“MPD”) receipt of an anonymous tip flagging suspicious activity and possible drug sales at what has since been identified as Defendant Henry's address. The tip indicated that Defendants Henry and Albrecht lived at the apartment and provided certain other identifying information. The government also received complaints that the apartment emitted a smell of marijuana that was “continuous and pervasive immediately upon reaching the fifth floor of the building, ” and that “hundreds” of suspected drug transactions were taking place there. As part of its investigation, law enforcement identified a social media account belonging to Defendant Henry through which she advertised sales of marijuana and ...


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