UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Criminal No. 19-80 (CKK)
VINCENT DONTA MCSWAIN,
Defendant.
MEMORANDUM OPINION
(April 15, 2019)
A federal indictment charges Defendant Vincent Donta McSwain with unlawful possession
of 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), and with receipt or possession of a firearm
unidentified by serial number, in violation of 26 U.S.C. § 5861(i). At a detention hearing on March
4, 2019, Magistrate Judge Robin M. Meriweather granted the Government’s oral motion to detain
Mr. McSwain pending trial. He presently seeks release from pretrial custody into the High
Intensity Supervision Program (“HISP”). Upon consideration of the briefing, 1 the relevant legal
authorities, and the record as a whole, the Court DENIES Mr. McSwain’s [12] Motion to Modify
Conditions of Release. He shall remain in custody pending trial.
I. BACKGROUND
The Court draws on the briefing and the docket for certain relevant proceedings in this
matter. On February 27, 2019, Mr. McSwain was arrested during a traffic stop when Metropolitan
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The Court’s consideration has focused on the following documents:
• Mot. to Modify Conditions of Release, ECF No. 12 (“Def.’s Mem.”);
• Gov.’s Opp’n to Def.’s Mot. to Reconsider Bond Status, ECF No. 13 (“Gov.’s Opp’n”);
and
• Resp. to Gov. Opp’n Mot. [sic] to Modify Conditions of Release, ECF No. 15 (“Def.’s
Reply”).
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Police Department officers allegedly found a loaded gun on his person that lacked a serial number,
and they identified a prior felony conviction in a criminal records database. See, e.g., Stmt. of
Facts, Criminal Compl., ECF No. 1-1, at 2; Gov.’s Opp’n at 1-2.
The Government filed a sealed Criminal Complaint against Mr. McSwain on February 28,
2019, containing two counts, namely unlawful possession of 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), and receipt or possession of a firearm unidentified by serial number, in violation of
26 U.S.C. § 5861(i). Criminal Compl., ECF No. 1. On March 1, 2019, Mr. McSwain initially
appeared before Magistrate Judge Deborah A. Robinson, who unsealed the case, denied the
Government’s oral motion for temporary detention, and denied Mr. McSwain’s oral motion for an
immediate hearing on pretrial detention. Min. Entry for Initial Appearance of Mar. 1, 2019.
Nevertheless, it appears that Mr. McSwain remained in detention without bond. Id.
An Indictment containing the same two charges was filed on March 4, 2019. ECF No. 3. 2
That same date, Magistrate Judge Robin M. Meriweather held a detention hearing and granted the
Government’s oral motion to commit Mr. McSwain to custody. Min. Entry for Detention Hearing
of Apr. 4, 2019; Order of Detention Pending Trial, ECF No. 6. Mr. McSwain was arraigned before
this Court on March 15, 2019. Min. Order of Mar. 18, 2019.
Mr. McSwain has moved for pretrial release into HISP. Briefing having concluded, his
motion is ripe for decision.
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On March 21, 2019, the Government corrected the first page of the Indictment to reflect that the
Indictment was filed in federal district court, rather than the Superior Court of the District of
Columbia.
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II. LEGAL STANDARD
The touchstone of the pretrial detention inquiry is whether a defendant’s “release will not
reasonably assure the appearance of the person as required or will endanger the safety of any
other person or the community.” 18 U.S.C. § 3142(b). Imposition of a condition or combination
of conditions of release may be necessary to achieve such assurance. Id. § 3142(c). Failing that,
a defendant is detained until trial. See id. § 3142(a), (e); see also § 3142(d) (providing for
temporary detention in certain circumstances).
A defendant may seek review of the decision of a magistrate judge to detain him pending
trial. Id. § 3145(b). In that event, this Court conducts the detention inquiry de novo. See United
States v. Taylor, 289 F. Supp. 3d 55, 63 (D.D.C. 2018) (observing that the Court of Appeals of
this Circuit has yet to confirm standard of review, but applying standard recognized in nearly all
other circuits).
In certain circumstances, the Court presumes—subject to rebuttal by a defendant—that
“no condition or combination of conditions will reasonably assure the safety of any other person
and the community.” 18 U.S.C. § 3142(e)(2), (3).
Regardless of the rebuttable presumption, the Court must take the following factors into
consideration as it reviews the magistrate’s detention order:
(1) the nature and circumstances of the offense charged, including whether the
offense is a crime of violence, a violation of section 1591, a Federal crime of
terrorism, or involves a minor victim or a controlled substance, firearm, explosive,
or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
(A) the person’s character, physical and mental condition, family ties,
employment, financial resources, length of residence in the community,
community ties, past conduct, history relating to drug or alcohol abuse,
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criminal history, and record concerning appearance at court proceedings;
and
(B) whether, at the time of the current offense or arrest, the person was on
probation, on parole, or on other release pending trial, sentencing, appeal,
or completion of sentence for an offense under Federal, State, or local law;
and
(4) the nature and seriousness of the danger to any person or the community that
would be posed by the person’s release. . . .
Id. § 3142(g). “The facts the judicial officer [holding a hearing pursuant to Section 3142(f)] uses
to support a finding pursuant to subsection (e) that no condition or combination of conditions will
reasonably assure the safety of any other person and the community shall be supported by clear
and convincing evidence.” Id. § 3142(f).
III. DISCUSSION
Although Mr. McSwain does not purport to seek review of Magistrate Judge
Meriweather’s decision, neither does he cite the applicable standard for this Court to alter his
present status in detention. Accordingly, the Court shall conduct the pretrial detention inquiry
de novo, as Mr. McSwain seeks adjustment of a decision made by the magistrate judge and not
yet reviewed by this Court.
Mr. McSwain requested a hearing as to the pending motion at the Court’s Status Hearing
on April 3, 2019. That request does not appear in either his motion or reply. Nevertheless, in an
exercise of its discretion, the Court finds that holding oral argument as to this motion would not
be of assistance in rendering a decision. See LCrR 47(f) (according discretion to Court as to request
for hearing made in a motion or opposition). Moreover, Magistrate Judge Meriweather already
held a detention hearing before ordering Mr. McSwain’s detention pending trial. Accordingly, the
Court shall consider any requirement under Section 3142(f) to hold such a hearing to be satisfied.
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See 18 U.S.C. § 3142(f) (requiring hearing upon Government’s motion in felony case “involv[ing]
the possession or use of a firearm”).
The Government argues that a presumption of detention has arisen, but the Government
refers, presumably by mistake, to “the grand jury’s decision to charge defendant with a controlled
substance offense.” Gov.’s Opp’n at 3. Mr. McSwain has not been indicted for a controlled
substance offense. Nor did Magistrate Judge Meriweather find that a rebuttable presumption had
arisen. See Order of Detention Pending Trial, ECF No. 6, at 1-2. The Court’s independent review
also suggests that no such presumption applies. In any case, the Court’s consideration of the
relevant factors demonstrates that Mr. McSwain must remain detained.
The Government has not raised any concern that Mr. McSwain may flee pending trial. Nor
did Magistrate Judge Meriweather detain him on this basis. The Court’s review of the record has
not suggested any flight risk either. The Government does not contest Mr. McSwain’s
representations that he has lived locally throughout his life, has family in the area, and has not
missed any past court appearances. See Def.’s Mem. at 2-3.
Rather, the Government urges that Mr. McSwain should remain detained in the interest of
community safety. Gov.’s Opp’n at 5; see also Order of Detention Pending Trial, ECF No. 6, at
2; 18 U.S.C. § 3142(b). The Court shall proceed to consider the Section 3142(g) factors in its
evaluation of whether, if Mr. McSwain is released pending trial, there is any condition or
combination of conditions that would adequately assure the safety of other persons and the
community. See 18 U.S.C. § 3142(c).
1. Nature and Circumstances of the Offenses Charged, and Weight of the Evidence
Against the Defendant
Under Section 3142(g), the Court must specifically consider that Mr. McSwain has been
indicted for firearm offenses. Each of those offenses can result in imprisonment for up to ten years.
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See 18 U.S.C. §§ 922(g)(1), 924(a)(2); 26 U.S.C. §§ 5861(i), 5871. Mr. McSwain was charged
with possession of ammunition that he should not have had due to his prior felony convictions.
The present charges also involve a weapon that lacks a serial number; this “ghost gun” is therefore
untraceable by law enforcement. Gov.’s Opp’n at 4. The Court is concerned about the potential
reasons why Mr. McSwain was carrying a loaded and untraceable firearm.
The alleged evidence against Mr. McSwain is strong, moreover. During the traffic stop,
Mr. McSwain “stood against the car in a way that made it seem to officers that he was trying to
conceal the lower part of his body.” Id. at 1-2. When asked whether he was armed, Mr. McSwain
admitted to having a gun, which the pat-down promptly confirmed and the officers’ body-worn
cameras readily documented. Stmt. of Facts, Criminal Compl., ECF No. 1-1, at ECF page 1;
Gov.’s Opp’n at 2, 4; Gov.’s Mem. in Supp. of Pretrial Detention, ECF No. 4, Exs. A & B. The
gun’s magazine was loaded with ten rounds of ammunition. Stmt. of Facts, Criminal Compl., ECF
No. 1-1, at ECF page 1. After his arrest, and after he had waived his Miranda rights, Mr. McSwain
admitted to Federal Bureau of Investigation agents that he had been carrying a gun that he had
purchased. Id.; Gov.’s Opp’n at 2.
Mr. McSwain does not dispute the aforementioned allegations. He contests only the
Government’s assertion that he tried to walk away during the traffic stop. Gov.’s Opp’n at 1;
Def.’s Reply at 1-2. Given the other evidence, the Court need not make a finding as to whether
Mr. McSwain attempted to leave the scene or to evade detection of his firearm.
The nature and circumstances of the offenses charged, as well as the weight of the evidence
against Mr. McSwain, strongly suggest that no other conditions short of pretrial detention would
reasonably assure community safety.
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2. History and Characteristics of the Defendant, and the Nature and Seriousness of the
Danger to Any Person or the Community That Would Be Posed by the Defendant’s
Release
As noted above, Mr. McSwain has two prior convictions for offenses carrying terms of
imprisonment that can exceed one year. According to Mr. McSwain’s Pretrial Services Report, he
was sentenced in 2008 to twenty-months’ imprisonment, fourteen months suspended, for carrying
a pistol without a license outside of his home or business, and another twenty months, fourteen
months suspended, for assault with significant bodily injury. Perhaps more concerning is the
Government’s uncontested representation that the assault conviction was for “shooting an unarmed
civilian.” Gov.’s Opp’n at 4. Moreover, Mr. McSwain has committed a string of six other
offenses. Those six violations of driving laws principally concern the requirement that he have a
valid license. Based on the gravity of Mr. McSwain’s prior felony convictions, and the frequency
and similarity between his other traffic offenses, the Court finds that Mr. McSwain is likely to
violate the law again if he were released before trial. And that violation may well involve a firearm
again, and it could result in shooting someone again. Mr. McSwain is a danger to the community.
Mr. McSwain’s attempts to minimize his criminal record are unpersuasive. See Def.’s
Mem. at 1-2; Def.’s Reply at 2. Even though his prior gun conviction and his conviction for assault
with significant bodily injury are each more than a decade old—and all but six months of his
sentences for those crimes was suspended 3—those are still serious crimes. His traffic offenses
before and since demonstrate that Mr. McSwain cannot be trusted to comply with the law. The
present indictment for further gun offenses reinforces that assessment.
3
Mr. McSwain indicates that the separate sentences ran concurrently. See Def.’s Mem. at 2. The
Government does not disagree.
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That Mr. McSwain allegedly has been employed, has completed other pretrial release and
probation successfully in the past, and has submitted letters in support of his character do not
sufficiently mitigate the Court’s concerns. See Def.’s Mem. at 2; Def.’s Reply at 2-3 & Ex. A. In
the past, Mr. McSwain continued to commit offenses despite allegedly completing pretrial release
and probation successfully as to prior offenses. According to the Pretrial Services Report, Mr.
McSwain’s probation for the latest offense expired on November 30, 2018—less than three months
before he was arrested for the presently pending charges. While the Court is unaware of Mr.
McSwain’s employment history at the time of his previous offenses, his putative character did not
keep him from becoming a repeat offender. The Court is not convinced that any of the other
personal characteristics identified by Mr. McSwain—such as the reasons articulated above as to
why he is not a flight risk—sufficiently mitigate the danger that he poses to the community at
present, or the other two factors weighing against him.
IV. CONCLUSION
Upon consideration of all of the evidence and the factors set forth in 18 U.S.C. § 3142(g),
and the possible release conditions set forth in § 3142(c), the Court finds clear and convincing
evidence that no condition or combination of conditions will reasonably assure the safety of the
community if Mr. McSwain is released from detention pending trial. Accordingly, for the
foregoing reasons, the Court DENIES Mr. McSwain’s [12] Motion to Modify Conditions of
Release. He shall remain in custody pending trial.
An appropriate Order accompanies this Memorandum Opinion.
Dated: April 15, 2019
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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