United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.
Mario A. Taylor seeks to revoke the magistrate judge's
July 18, 2017 order directing that Taylor remain in custody
pending trial. Dkt. 57. Taylor was arrested during an
eviction conducted at 2547 Elvans Road SE #102, Washington,
D.C., on June 1, 2017, which resulted in the seizure of two
handguns, an AR-15 rifle, ammunition for all three weapons,
and two vials that the government alleges contain
Phencyclidine (“PCP”). Dkt. 59 at 2-4. He was
charged by indictment with Unlawful Possession with Intent to
Distribute a Mixture and Substance Containing a Detectable
Amount of PCP, in violation of 21 U.S.C. § 841(a)(1)
& (b)(1)(C) (Count One); Unlawful Possession of a Firearm
and Ammunition by a Person Convicted of a Crime Punishable by
Imprisonment for a Term Exceeding One Year, in violation of
18 U.S.C. § 922(g)(1) (Count Two); and Using, Carrying,
and Possessing a Firearm During a Drug Trafficking Offense,
in violation of 18 U.S.C. § 924(c)(1) (Count Three).
Dkt. 1. On July 11, 2017, Taylor was arraigned, and two days
later a detention hearing was held. Dkt. 57 at 2; see
also Dkt. 5. After the hearing, the magistrate judge
ordered Taylor held without bond, finding that he had not
overcome the presumption-triggered by Counts One and Three of
the indictment-that no combination of conditions could
reasonably assure the safety of the community if he were
released, and that, in any event, “detention would be
required even had [Taylor] rebutted the presumption
entirely.” Dkt. 5 at 6.
light of several developments since his detention hearing,
Taylor now moves to revoke that pretrial detention order.
Dkt. 57. The Court finds that Taylor has rebutted the
statutory presumption in favor of detention triggered by the
charges in this case and that the government has failed to
show by clear and convincing evidence that no set of
conditions exists that would reasonably assure the safety of
the community. Reaching that result requires that the Court
resolve two questions of first impression in this Circuit
regarding the meaning of the Bail Reform Act of 1984, 18
U.S.C. § 3142 et seq. As explained below, the
Court concludes that the second factor of the detention
analysis under Section 3142-the weight of the
evidence-focuses on the evidence the government may present
at trial and, thus, does not include evidence that the Court
has suppressed. By contrast, the fourth factor under Section
3142-the nature and seriousness of the danger to any person
or the community that would be posed by release- requires the
Court to consider all reliable evidence, including evidence
that has been suppressed.
the factors set forth in the Bail Reform Act and these legal
conclusions, the Court will revoke the order of the
magistrate judge and direct that Taylor be released subject
to the conditions set out below.
March 31, 2017, the Superior Court of the District of
Columbia issued a writ of restitution to evict Taylor from
his residence at 2547 Elvans Road SE #102, Washington, D.C.
Dkt. 14-1 at 3. The writ was executed on June 1, 2017. As
required in the District of Columbia, the United States
Marshals Service effected the eviction, with the assistance
of an eviction team retained by the property owner. At the
time the Deputy Marshals arrived at the residence, it was
occupied by three men (including Taylor), one woman, and one
infant. The Deputy Marshals directed all of the occupants to
leave the apartment, but the adults were subsequently allowed
briefly to return to retrieve valuables, such as cell phones
approximately forty-five minutes, one of the Deputy Marshals
discovered two loaded rifle magazines (for an AR-15 rifle)
under a table in the dining area. Dkt. 18 (64:4-9). Although
the magazines were left on the floor, they were initially
obscured by clothing and other “debris.” Dkt. 48
(22:10-18). Very shortly after the Deputy Marshal discovered
the magazines, the eviction crew discovered two loaded,
semi-automatic handguns, ammunition, and two vials in
shoeboxes in one of the bedrooms. At least one of the vials
contained a “brownish[, ] yellowish” liquid.
Id. (23:6-8). As is standard procedure, the Deputy
Marshals contacted the Metropolitan Police Department's
(“MPD”) Gun Recovery Unit (“GRU”).
While waiting for the GRU to arrive, the Deputy Marshals
brought Taylor back into the apartment. One of them
“explained to him that [they had] found contraband,
[that they had] found guns and . . . told him he [was] not
under arrest but [they would] have to detain him until MPD
comes.” Id. (14:6-9). Taylor said
“something to th[e] effect” of “you're
going to charge me anyways because I'm on the lease,
” at which point the Deputy Marshals handcuffed him.
officers from the GRU arrived, the officers inspected the
items discovered in the course of the eviction. Of particular
relevance here, Officer Casey Logan examined and smelled the
vials and concluded that they contained PCP. He also examined
the rifle magazines, handguns, and ammunition. While the GRU
remained present, moreover, a member of the eviction crew
discovered a soft bag in a closet located just off of the
communal living area, which he brought to Officer Logan's
attention. Officer Logan entered the closet, examined the
bag, felt what seemed to be a rifle, and opened the bag.
Inside, he discovered an AR-15, a type of semi-automatic
rifle. According to Officer Logan, he asked Taylor-who
remained handcuffed-“about the illegal items recovered
from his home, ” and Taylor responded “that
everything recovered from the residence belong[ed] to
him.” Dkt. 61 at 2 (MPD Arrest Form (June 1, 2017));
see also Dkt. 49 (25:9-23) (quoting grand jury
testimony). Taylor's counsel denies that he made this
statement, but the defense has yet to offer any evidence or
to make a proffer in support of that contention. According to
the government, the liquid contained in the vials later
tested positive for PCP at a Drug Enforcement Agency
(“DEA”) laboratory located in Northern Virginia.
was indicted on June 29, 2017, and arraigned on July 11,
2017. After a detention hearing, the magistrate judge found
“by clear and convincing evidence that no condition or
combination of conditions exist that would reasonably assure
the safety of any other person or the community if [Taylor]
were released, ” and he accordingly granted the
government's motion for pretrial detention. Dkt. 5 at 9.
Taylor did not, at that time, challenge that order under 18
U.S.C. § 3145(b), which grants persons detained by order
of a magistrate judge the right to seek review by the
district court. He now contends, however, that several
intervening events warrant reexamination of the magistrate
judge's decision. Among other things, Taylor points to
the following developments and factual clarifications.
at the initial detention hearing, the government relied
extensively on Officer's Logan's assertion that
Taylor admitted that the guns and drugs belonged to him. Dkt.
3 at 5; Dkt. 5 at 7. The government has now conceded,
however, that the statements made by Taylor in response to
Officer Logan's questions must be suppressed at least for
purposes of trial because he was in custody and not advised
of his Miranda rights. Dkt. 18 (11:1-12:14); Minute
Entry (Dec. 8, 2017).
Taylor also moved to suppress the physical evidence found in
the apartment- that is, the guns, magazines, ammunition, and
vials of “brownish[, ] yellowish” liquid.
Although the Court denied that motion, additional evidence
arguably relevant to the present motion came to light in the
course of the suppression hearing. For example, although the
magistrate judge concluded, based on Officer Logan's
grand jury testimony, that the handguns, ammunition, and
purported PCP were recovered from the “main
bedroom” of a two-bedroom apartment, Dkt. 5 at 2,
testimony of multiple law enforcement officers established
that the apartment had three bedrooms, and the government has
not made any further suggestion that a one of the bedrooms
was the “main bedroom.” The Deputy Marshal
supervising the eviction crew, moreover, testified that when
Taylor was allowed to retrieve personal items from the
apartment, he did not enter the bedroom where the shoeboxes
containing contraband were discovered. Dkt. 48 (12:15- 22).
Instead, he entered a bedroom on the other side of the
hallway and “grabbed . . . [a] cellphone, cellphone
charger, [and] . . . a wallet.” Id. (13:1-2).
The government also presented photographic evidence that the
bedroom in which the shoeboxes were found had the name
“Veandre” written on one wall. See Dkt.
17 (describing government's photographic exhibits).
Further evidence indicated that one of the other occupants
present at the residence at the time the Deputy Marshals
arrived was named Veandre and that a man identified as
Veandre Purvis was overheard speaking to Taylor while the
eviction was taking place. See Dkt. 44-1. Purvis, in
particular, was overheard “asking why . . . Taylor had
not told him that he was being evicted and was behind on his
rent.” Dkt. 44-1 at 1. A Deputy Marshal also testified
that one of the adult occupants of the residence other than
Taylor retrieved personal items from the bedroom where the
shoeboxes were discovered and where “Veandre” was
written on the wall. The Deputy Marshal did not indicate
whether that individual was the same individual who was later
identified as Veandre Purvis.
after the jury was selected, but before it was sworn,
Taylor's counsel notified the Court of potentially
exculpatory information regarding misconduct by employees of
the DEA lab where the substance that the government contends
is a mixture of PCP and a precursor chemical was tested. Dkt.
57 at 5-6. According to Taylor's counsel, two chemists
have been “charged with criminal offenses including
embezzlement and possession of controlled substances.”
Id. Defense counsel further suggested that there
existed “reason to believe that this conduct may have
impacted the integrity of testing conducted at the lab even
if neither of the chemists was the lead chemist who would
be called to testify in . . . Taylor's case.”
Id. at 6. As a result of this late-breaking
development, the Court continued the trial to permit the
parties time to investigate the matter. See Minute
Entry (Dec. 14, 2017).
investigation has, as of yet, been inconclusive. According to
the government, one of the DEA chemists identified by
Taylor's counsel was arrested on August 30, 2017, and
charged under Virginia law with two counts of felony
possession of oxycodone and two counts of embezzlement for
purportedly obtaining oxycodone from the DEA lab's
“reference materials” without authorization. Dkt.
62 at 1. She pleaded guilty to misdemeanor embezzlement on
November 27, 2017. Id. Similar charges apparently
remain pending against the other DEA employee, a DEA research
chemist. The government asserts that its preliminary review
indicates that neither of the allegedly offending DEA
employees was assigned to Taylor's case or would have had
access to the locked box that contained the vials found in
Taylor's apartment. That review, however, is not yet
complete. Taylor, in turn, is still waiting to receive
potentially relevant information and assert that, regardless
of what that evidence may ultimately show, the government
should have disclosed the arrest of the DEA employees many
weeks earlier. He argues that the Court should consider that
delay-and the ensuring delay in the trial date-in evaluating
whether to revoke the magistrate court's detention order.
Court held a hearing on the motion to revoke the magistrate
judge's detention order on December 21, 2017, and took
the motion under advisement. Trial is currently scheduled to
commence on January 29, 2018.
the Bail Reform Act of 1984, 18 U.S.C. § 3142 et
seq., if a judicial officer finds after conducting a
hearing 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 [defendant] before trial.” 18 U.S.C. §
3142(e). Here, the magistrate judge concluded that Taylor
does not present a risk of flight. The Court agrees with the
magistrate judge's reasoning on this point, and adopts
his corresponding conclusion. The Court thus need consider
only whether any “condition or combination of
conditions will reasonably assure . . . the safety of any
other person and the community.” That prong of the
pretrial detention standard requires “clear and
convincing evidence” of dangerousness. 18 U.S.C. §
3142(f). “The default position of the law, therefore,
is that a defendant should be released pending trial.”
United States v. Stone, 608 F.3d 939, 945 (6th Cir.
default is modified, however, for certain particularly
dangerous defendants.” Id. In particular, the
Bail Reform Act creates a rebuttable presumption “that
no condition or combination of conditions will reasonably
assure . . . the safety of the community if . . . there is
probable cause to believe that the person committed”
one of an enumerated list of crimes, including a crime
carrying a maximum term of imprisonment of ten years or more
under the Controlled Substances Act, 21 U.S.C. § 801
et seq., or a violation of 18 U.S.C. 924(c). 18
U.S.C. § 3142(e)(2). For purposes of making that
determination, “[a] grand jury indictment, by itself,
establishes probable cause to believe that a defendant
committed the crime with which he is charged.”
Stone, 608 F.3d at 945; see also United States
v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996)
(“[T]he indictment alone would have been enough to
raise the rebuttable presumption that no condition would
reasonably assure the safety of the community.”).
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).
“While the burden of production may not be heavy,
” United States v. Lee, 195 F.Supp.3d 120, 125
(D.D.C. 2016) (citations omitted), the defendant must proffer
“at least some evidence” or basis to conclude
that the case falls “outside ‘the congressional
paradigm'” giving rise to the presumption.
Stone, 608 F.3d at 945-46 (quoting United States
v. Jessup, 757 F.2d 378, 387 (1st Cir. 1985)); see
also United States v. Bess, 678 F.Supp. 929, 934 (D.D.C.
1988) (finding that the presumption “represents
Congress's general factual view about the special flight
risks and the special risks of danger to the community
presented by defendants who commit the crimes to which it
attaches”). The defendant's burden, moreover, is
only a burden of production; the burden of persuasion remains
with the government throughout the proceeding. United
States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001);
see also Alatishe, 768 F.2d at 371 n.14 (citing
Jessup, 757 F.2d 378, but not deciding the
then-Judge Breyer explained in an opinion that the D.C.
Circuit has described as “scholarly” and
“extremely compelling it its rationale, ”
Alatishe, 768 F.2d at 371 n.14, the presumption is
not a “bursting bubble” that becomes devoid of
all force once a defendant has met his burden of production.
Jessup, 757 F.2d at 382. The presumption does
“not vanish upon the introduction of contradicting
evidence, ” nor does the burden of persuasion shift to
the defendant. Id. at 383 (citation omitted).
Rather, even after a defendant carries his burden of
persuasion, the judicial officer must “keep in mind the
fact that Congress has found that” those charged with
the specified offenses are likely to pose a danger to the
community. I ...