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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 [8] Motion for Emergency Stay and for Review and Appeal of Release Order with respect to Defendant Tiffany Henry (“Henry”).[1] A federal indictment charges (1) Defendants Tiffany Henry (“Henry”), Angela M. Cortez (“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(c). 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 [8] Motion for Emergency Stay and for Review and Appeal of Release Order with respect to Defendant Henry. 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 Henry's Pretrial Services Report for United States District Court, the Government's [5] Memorandum in Support of Detention, the Government's [8] Motion for Emergency Stay and for Review and Appeal of Release Order, and Defendant Henry's [13] Opposition to Motion for Emergency Stay and for Review and Appeal of Release Order; 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 Henry 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 Henry. 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 Henry maintained a social media profile advertising the sale of marijuana and THC-infused products, that an undercover officer of local law enforcement had arranged to purchase certain such products from Defendant Henry, and that a search of Defendant Henry's apartment at 901 6th Street SW, #509A, Washington, DC, 20024 had 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 Henry 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 Henry were to be released, she be released on personal recognizance with required program placement, if applicable, and a weekly reporting by telephone.

         Magistrate Judge Harvey, on setting the conditions for release, had determined that, under 18 U.S.C. § 3142, Defendant Henry could be released subject to the following conditions: that she be released into a work release/halfway house; that she have no social passes, including that she not possess a passport; that she stay away from the apartment she leased; that she report to PSA weekly by telephone; that she be placed in a weekly drug testing program; and that she seek and maintain employment. 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 Henry does not “appear as required, [she] will be subject to prosecution and if convicted, the maximum penalties” may be imposed. ECF No. 11.

         II. THE BALANCE OF FACTORS MILITATES IN FAVOR OF RELEASING DEFENDANT HENRY 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 Defendant Henry's apartment, 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 defense agree 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 Henry'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 Henry 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 Henry be released pending ...


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