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United States v. Taylor

United States District Court, District of Columbia

January 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MARIO A. TAYLOR, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.

         Defendant 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.

         In 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.

         Applying 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.

         I. BACKGROUND

         On 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 and wallets.

         After 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. Id. (14:10-19).

         After 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.

         Taylor 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.

         First, 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).

         Second, 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.

         Third, 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).

         That 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.

         The 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.

         II. LEGAL STANDARD

         Under 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. 2010).

         “That 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.”).

         Once 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 question).

         As 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 ...


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