United States v. Brown

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

Case No. 1:20-cr-27-4 (KBJ)

DAESHAWN BROWN,

Defendant.

MEMORANDUM OPINION

On March 4, 2021, a magistrate judge ordered defendant Daeshawn Brown detained
pending trial. ECF No. 54. Brown now moves to revoke the magistrate judge’s order of detention
under 18 U.S.C. § 3145(b). ECF No. 105. After the Government opposed Brown’s motion, ECF
No. 106, and Brown replied, ECF No. 111, the Court held a hearing on the motion. Upon
consideration of the parties’ filings, the arguments set forth at the hearing, the record herein, and
the applicable legal standards, the Court finds that no condition or combination of conditions of
release would reasonably assure Brown’s appearance as required or the safety of the community.
See 18 U.S.C. § 3142(f). Accordingly, the Court will DENY Brown’s motion for revocation of the
detention order, ECF No. 105.

I. BACKGROUND
A. The Investigation

During the summer of 2020, law enforcement conducted physical and video surveillance
of suspected participants in a drug-trafficking conspiracy at several locations in Washington, D.C.
ECF No. 53 at 3-4. On one occasion, law enforcement saw defendant Daeshawn Brown “with

other subjects of the investigation on a sidewalk in the Shaw neighborhood” engaging in hand-to-
hand transactions. /d. at 3. On another occasion, they observed Brown and other subjects outside
an apartment building passing a Ziploc bag filled with what the officer suspected to be over two
ounces (56 grams) of marijuana. Jd. Officers had also observed other subjects of the investigation
engaging in hand-to-hand transactions with suspected buyers outside that same apartment. Jd. at
3-4.

On July 21, 2020, Metropolitan Police Department officers executed a search warrant
authorized by a D.C. Superior Court judge in a firearms investigation. ECF No. 53 at 4. During
the execution of the warrant, officers seized Brown’s cell phone. Jd. Later, law enforcement
searched Brown’s phone pursuant to another warrant. Jd. The search of Brown’s phone revealed
the following text messages between Brown and other individuals involving the buying and selling
of narcotics:

e On July 8, 2020, Brown received a text message from a number tied
to an individual (“Suspected Buyer 1”) with a criminal history of
controlled substances offenses asking for an “addy” (i.e., an
address). Jd. Brown responded with a location known to law
enforcement for its use by subjects of the investigation for drug
sales. Id.

e On July 8, 2020, Brown texted another number (“Suspected Buyer
2”) the same address that he texted Suspected Buyer 1. Jd.

e On July 15, 2020, Brown received a text message from another
subject of the investigation telling him to “stay in the parking lot.”
Id. at 6. Brown then informed the subject of his location as
“TcJoming thro 6st tunnel now.” /d. Based on the location Brown
provided in his text message, law enforcement suspected that the
“parking lot” was the same one under surveillance in the
investigation for suspected narcotics transactions. /d.

e On July 21, 2020, Brown sent a text message to Suspected Buyer 3
saying that he had better “UP” now. Jd. at 4. “Up” is a common
street name for crack or powder cocaine. Jd. Suspected Buyer 3
responded, requesting that the “down” (a common street name for
heroin or fentanyl) be “weighed out this time.” Jd. at 4—5.

e On July 21, 2020, Brown sent a text message to Suspected Buyer 2
stating that he had better “UP” and marijuana. /d. at 5. Brown then
sent text messages to several others saying that he had better “UP.”
Id. at 5-6.

During the same month, law enforcement located photographs of Brown holding an AR-
style firearm and a drum magazine. ECF No. 53 at 8-9. The photographs were posted on Instagram
and show Brown posing with the firearm and the magazine. Jd.

In the fall of 2020, law enforcement searched Brown after obtaining an arrest warrant on
an unrelated charge. ECF No. 53 at 7. The search incident to arrest came about after a long series
of events beginning back in January 2020. Jd. at 6. On January 7, 2020, Brown was convicted of
carrying a pistol without a license in violation of D.C. Code § 22-4504 and sentenced to six
months’ probation. Jd. at 6, 10. While on probation for the gun offense, Brown was arrested for
driving without a valid permit. Jd. at 10. Shortly thereafter, Brown was charged with possessing
with intent to distribute marijuana when he was found in possession of 409 grams of marijuana.
Id.' Because Brown incurred two arrests while on probation for his gun offense, he was ordered to
wear a GPS-monitoring device. Jd. His supervision on the monitoring device began on May 20,
2020. Jd. By mid-September 2020, however, Brown had incurred twenty-three infractions for
failing to properly charge the device. ECF No. 50 at 5. As a result of these infractions, Brown was
charged with tampering with a detection device in violation of D.C. Code § 22-1211(a)(1)(c). ECF
No. 53 at 7. An arrest warrant issued. Id.

This brings us back to the search incident to arrest in the fall of 2020. On October 15, 2020,
law enforcement observed Brown in the Shaw neighborhood of Washington, D.C., arrested him

pursuant to the warrant for his tampering charge, and conducted a search incident to arrest. ECF

' The amount of marijuana found in Brown’s possession (409 grams) was proffered by the Government at
the motion hearing. The Government further represented at the hearing that the charge has since been
dismissed.
No. 53 at 7. When they searched him, officers recovered a digital scale with white residue on it
and five individually wrapped “twists” containing a white, powdery substance. Jd. The Drug
Enforcement Agency’s testing confirmed 9.11 grams of fentanyl and .89 grams of cocaine in the
plastic twists. Id?

B. Brown’s Arrest and First Detention Hearing

On February 16, 2021, a grand jury returned a thirty-count Superseding Indictment
charging Brown and thirteen others with offenses stemming from the group’s alleged trafficking
of fentanyl, crack cocaine, and oxycodone. See ECF No. 45. The Superseding Indictment charges
Brown with three offenses: (1) conspiring to distribute and possessing with intent to distribute 400
grams or more of a mixture containing a detectable amount of fentanyl and a mixture and substance
containing a detectable amount of cocaine base (“crack cocaine”) in violation of 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1)(A)(vi), 841(b)(1)(C) (Count 1), (2) unlawfully possessing with intent to
distribute fentanyl in violation of 21 U.S.C. §§ 841(@@)(1) & (b)(1)(C) (Count 28), and
(3) unlawfully possessing with intent to distribute cocaine (“powder cocaine’) in violation of
21 U.S.C. §§ 841(a)(1) & (b)(1)(C) (Count 29). ECF No. 45 at 3, 7, 15-16.

Law enforcement arrested Brown on February 24, 2021. ECF No. 93. Later that day, Brown
appeared before Magistrate Judge Robin M. Meriweather for his initial appearance and
arraignment. ECF No. 93; ECF Min. Entry 2/24/2021. At the hearing, Magistrate Judge
Meriweather granted the Government’s oral motion for a temporary hold and scheduled a detention

hearing for February 26, 2021. ECF Min. Entry 2/24/2021. In its memorandum in support of pre-

* The Government stated in its memorandum in support of detention that law enforcement “confirmed the
existence of 9.11 grams of Fentanyl and .89 grams of cocaine in the substance” found on Brown during the
search. ECF No. 53 at 7. At the hearing, the Government clarified that it was unaware whether the 9.11
grams was the field weight, or if Brown was in possession of 9.11 grams of 100% pure fentanyl. It also
clarified that the .89 grams of cocaine found was powder cocaine.

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trial detention, the Government argued that the Bail Reform Act establishes a rebuttable
presumption that no condition or combination of conditions can effectively ensure Brown’s
appearance as required or the safety of the community. ECF No. 53 at 2 (citing 18 U.S.C.
§ 3142(e)(3)(A)). It further argued that Brown is a danger to the community because he was
charged with distributing fentanyl, an extremely dangerous substance that poses a great risk of
serious bodily injury or death. Jd. at 11. The Government also argued that Brown is dangerous
because photographs of him posted on Instagram show that he was in possession of an AR-style
firearm with a magazine drum at the same time he was distributing fentanyl. /d. Finally, the
Government argued that Brown is a flight risk because the evidence against him is strong and
because of his history of violating his probation. ECF No. 53 at 2, 10.

Magistrate Judge G. Michael Harvey presided over Brown’s detention hearing and ordered
him detained. ECF Min. Entry 2/26/2021. Magistrate Judge Harvey agreed with the Government
that the Bail Reform Act establishes a rebuttable presumption that no condition or combination of
conditions can effectively ensure Brown’s appearance as required or protect the community. ECF
No. 54 at 2 (citing 18 U.S.C. § 3142(e)(3)(A)). And he found that Brown “has not presented
sufficient evidence to rebut the presumption.” Jd. Specifically, Magistrate Judge Harvey found the
following considerations to support pre-trial detention: the seriousness of the drug offenses
charged, the strength of the Government’s proffer of evidence against Brown, Brown’s failure to
comply with GPS monitoring and incurring two arrests while on probation for his gun offense, and
Brown’s possession of an AR-style firearm with a drum magazine during the same time he is

alleged to have been dealing narcotics. Jd. at 3-4.
C. Brown’s Motion for Pre-Trial Release

At the time Magistrate Judge Harvey ordered Brown detained pending trial, Brown did not
challenge that order under 18 U.S.C. § 3145(b). See 18 U.S.C. § 3145(b) (allowing a defendant
detained by a magistrate judge to move the court having original jurisdiction of the offense for
modification or revocation of the detention order). Instead, two months later, Brown now moves
for “reconsideration of bond,” ECF No. 105. Judge Ketanji Brown Jackson (the judge presiding
over Brown’s case) subsequently ordered that Brown’s motion be handled by the undersigned.
ECF Min. Order 4/23/2021.

Brown’s motion gives four reasons why he should be released pending trial. First, he argues
that although the conspiracy charge in the Superseding Indictment “references 400 grams or more
of fentanyl and cocaine,” it “clarifies that Brown’s conduct involved [only] a detectable amount”
of a mixture containing fentanyl. ECF No. 105 at 1-2. Second, he claims that contrary to
Magistrate Judge Harvey’s finding in the detention order, the weight of the evidence against him
on the conspiracy charge is actually quite weak. Jd. at 5. If anything, Brown argues, the
Government’s evidence suggests that he merely sold drugs to a few customers. /d. Third, Brown
argues that his failure to charge the GPS-monitoring device does not suggest that he “does not
follow court orders,” because the Government never offered proof that he actually traveled to
locations where he was not supposed to be while under supervision. /d. at 10. Fourth, citing the
D.C. Circuit’s recent opinion in United States v. Munchel, 991 F.3d 1273 (D.C. Cir. 2021), Brown
argues that although the Government “may be able to identify and articulate a threat,” it has not
shown “by clear and convincing evidence” that Brown would pose such a threat if he were released

and ordered to home confinement 24 hours per day. /d. at 11.
As for his conditions of release, Brown proposes that he be released on “home confinement,
such that he would not be allowed to leave his house unless he had verifiable employment.” ECF
No. 105 at 11. Alternatively, Brown asks that he be released on home confinement 24 hours per
day. /d. His counsel adds that Brown is not handling the “rigors of jail” very well and will agree
to any conditions that the Court finds necessary to impose. /d. at 12. Finally, defendant notes that
although he “has used marijuana,” he is not “addicted to crack cocaine or heroin,” and thus does
not have an addiction problem that could call into question his ability to comply with conditions
of pre-trial release. Jd.

The Government opposes Brown’s motion. ECF No. 106. It incorporates the arguments
made in its original memorandum in support of pre-trial detention, ECF No. 54, and adds that
Brown has not put forth any new evidence showing that the circumstances have changed since his
first detention hearing. ECF No. 106 at 4. Once the Government filed its opposition, the Court
ordered that any reply to the Government’s opposition be filed by April 28, 2021. ECF No. 107.
The Court also set a hearing on the motion for April 30, 2021. Jd.

In his reply, Brown argues that reconsideration is proper because the D.C. Circuit’s recent
decision in Munchel clarified “the standard that a district court must follow when considering
whether an accused should be held pending trial.” ECF No. 111 at 1. Specifically, Brown argues
that Munchel held that pre-trial detention is proper only upon “a showing that the defendant poses
a continuing ‘identified and articulable threat[.]’” Jd. (quoting Munchel, 991 F.3d at 1280). Thus,
to detain a defendant pending trial, Brown says, the Court must find “clear and convincing
evidence” of an “identified and articulable threat” to the community. Jd. at 2. And because

Magistrate Judge Harvey “did not identify a specific articulable threat of future danger if [Brown]
were released, but instead relied on a general belief that the defendant may pose a danger if
released,” Brown argues, he should be released pending trial. Jd. at 2-3.

At the hearing, the Court heard arguments and received proffers from both sides. See
United States v. Smith, 79 F.3d 1208, 1209-10 (D.C. Cir. 1996) (holding that both parties may
proceed by proffer at a pre-trial detention hearing). Brown first clarified that his “motion for
reconsideration of bond,” ECF No. 105, should be construed as a motion for revocation of
Magistrate Judge Harvey’s order of detention pursuant to 18 U.S.C. § 3145(b). Defense counsel
then emphasized that Brown is not adjusting well to jail (which is currently under lockdown for
twenty-two hours per day due to the COVID-19 pandemic) and that the Court should give Brown
the opportunity to try home confinement with electronic monitoring. Aside from Brown’s
difficulties adjusting to jail, defense counsel conceded that he has no new evidence to present that
was not available or already offered at the detention hearing before Magistrate Judge Harvey.

Brown’s motion is now ripe for consideration.

Il. LEGAL STANDARDS

In our society, “liberty is the norm” and “detention prior to trial or without trial is the
carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). The Bail Reform
Act, 18 U.S.C. § 3141 et seq., thus authorizes the detention of defendants awaiting trial on a federal
offense only under certain, limited circumstances. See 18 U.S.C. § 3142(f). First, the government
may seek a defendant’s pre-trial detention if the offense charged falls into any of five enumerated
categories. Jd. at § 3142(f)(1). One of those enumerated categories is for offenses “for which a
maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances
Act (21 U.S.C. § 801 et seq.).” Id. at § 3142(f)(1)(C). Second, the government may also seek pre-

trial detention—or the court may sua sponte hold a detention hearing to determine whether
detention is appropriate—if the case involves “a serious risk” that the defendant will flee or “will
attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or
intimidate, a prospective witness or juror.” Jd. at § 3142(f)(2).

If the Bail Reform Act authorizes pre-trial detention, a judicial officer must hold a hearing
to determine whether there are conditions of release that would reasonably assure the appearance
of the defendant as required and the safety of any other person and the community. 18 U.S.C.
§ 3142(f). At the hearing, both parties may proceed by proffer. Smith, 79 F.3d at 1209-10. If, after
a hearing, the judicial officer finds 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,” the judicial officer shall order the person detained pending trial. 18 U.S.C.
§ 3142(e)(1). A finding that no condition or combination of conditions would reasonably assure
the safety of any other person and the community must be supported by clear and convincing
evidence. Jd. at § 3142(f). And a finding that no conditions would reasonably assure the
defendant’s appearance as required must be supported by a preponderance of the evidence. United
States v. Xulam, 84 F.3d 441, 442 (D.C. Cir. 1996).

In some cases, the Bail Reform Act establishes a rebuttable presumption that no condition
or combination of conditions will reasonably assure the defendant’s appearance as required and
the safety of any other person and the community. 18 U.S.C. § 3142(e). Relevant here, “it shall be
presumed that no condition or combination of conditions will reasonably assure the appearance of
the person as required and the safety of the community if the judicial officer finds that there is
probable cause to believe that the person committed” an “offense for which a maximum term of
imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. § 801

et seq.).” 18 U.S.C. § 3142(e)(3)(A).
Once this presumption is triggered, “it imposes a burden of production on the defendant
‘to offer some credible evidence contrary to the statutory presumption.’” United States v. Cherry,
221 F. Supp. 3d 26, 32 (D.D.C. 2016) (quoting United States v. Alatishe, 768 F.2d 364, 371
(D.C. Cir. 1985)). To rebut the presumption, the defendant must “offer some credible evidence”
that he will not endanger the community or flee if released. Jd. at 32. The defendant’s burden of
production is not heavy, but he must still introduce some relevant evidence. /d. If the defendant
meets his burden of production, the presumption “does not disappear entirely.” United States v.
Hunt, 240 F. Supp. 3d 128, 132-33 (D.D.C. 2017) (citing United States v. Ali, 793 F. Supp. 2d 386,
388 (D.D.C. 2001)); accord United States v. Stone, 608 F.3d 939, 945 (6th Cir. 2020). Instead, the
presumption of pre-trial detention becomes a “factor to be considered by the Court amongst the
others in determining whether the defendant should be detained.” Ali, 793 F. Supp. 2d at 388.
Although the burden of production may shift, the burden of persuasion remains with the
government throughout. Cherry, 221 F. Supp. 3d at 32.

To decide whether there are conditions that would reasonably assure the defendant’s
appearance as required and the safety of any other person and the community, the Bail Reform Act

requires courts to consider the following factors:

(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, criminal history,
and record concerning appearance at court proceedings; and

(B) whether, at the time of the current offense of arrest, the
person was on probation, on parole, or on other release

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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.

18 U.S.C. § 3142(g).

If a magistrate judge orders a defendant detained pending trial, the defendant “may file,
with the court having original jurisdiction over the offense, a motion for revocation or amendment
of the order.” 18 U.S.C. § 3145(b). The motion shall be decided promptly. Jd. The court having
original jurisdiction of the offense reviews the magistrate judge’s order of detention de novo as to
issues of both law and fact. Hunt, 240 F. Supp. 3d at 132-33.

It. ANALYSIS

As a threshold matter, the Court notes that Brown’s motion for revocation of Magistrate
Judge Harvey’s order of detention comes after a two-month delay. Though the D.C. Circuit has
not yet considered whether motions brought under 18 U.S.C. § 3145(b) must be filed within a
specific time, at least one other Circuit has held that “defendants have the responsibility to [seek
review of] pretrial detention orders promptly.” Fassler v. United States, 858 F.2d 1016, 1018 (Sth
Cir. 1988). This rule, however, is undercut by the language of the Bail Reform Act, which directs
courts to decide the motion for review “promptly” but says nothing about when the motion for
review must be filed. 18 U.S.C. § 3145(b). Given that the Bail Reform Act does not specify a time
in which a defendant must seek review of a magistrate judge’s order of detention, the Court will
proceed to the merits of Brown’s motion.

A. The Bail Reform Act Authorizes the Government to Seek Brown’s Pre-Trial
Detention and Establishes a Rebuttable Presumption of Detention

The Government correctly argues that it may seek Brown’s pre-trial detention under
18 U.S.C. § 3142(HC1)\(C). ECF No. 35 at 2. Section 3142(f)(1)(C) applies in cases that involve

“an offense for which a maximum term of imprisonment of ten years or more is prescribed by the

11
Controlled Substances Act (21 U.S.C. § 801 ef seq.)[.]” 18 U.S.C. § 3142()(1)(C). Here, Brown
has been charged with, among other offenses, possessing with intent to distribute fentanyl in
violation of 21 U.S.C. § 841(a). ECF No. 45 at 15-16. This charge carries a maximum sentence of
twenty years’ imprisonment. See 21 U.S.C. § 841(b)(1)(C). Thus, § 3142((1)(C) authorizes the
Government to seek Brown’s pre-trial detention.

As both parties agree, the Bail Reform Act also establishes a rebuttable presumption that
no condition or combination of conditions of release will reasonably assure Brown’s appearance
as required or the safety of the community. Under 18 U.S.C. § 3142(e)(3)(A), there shall be a
rebuttable presumption of pre-trial detention where “the judicial officer finds that there is probable
cause to believe that the person committed . . . an offense for which a maximum term of
imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. § 801
et seq.)[.]” 18 U.S.C. § 3142(e)(3)(A).

Here, a grand jury found probable cause to believe that Brown committed the offense of
possessing with intent to distribute fentanyl in violation of 21 U.S.C. § 841(a). ECF No. 45 at 15—
16. This charge carries a maximum sentence of twenty years’ imprisonment. See 21 U.S.C.
§ 841(b)(1)(C). An “indictment alone [is] enough to raise the rebuttable presumption that no
condition would reasonably assure the safety of the community.” Smith, 79 F.3d at 1210; accord
United States v. Little, 235 F. Supp. 3d 272, 277 (D.D.C. 2017). And given the strong evidence
proffered by the Government—including the fact that Brown was found with a substance
containing 9.11 grams of fentanyl and .89 grams of powder cocaine on his person during a search
incident to arrest and that law enforcement found text messages on Brown’s phone discussing
potential drug transactions—the Court has no reason to second guess the grand jury’s

determination. See ECF No. 53 at 4-7. Thus, the Court must presume that no condition or

12
combination of conditions of release will reasonably assure Brown’s appearance as required or the
safety of the community. See 18 U.S.C. § 3142(e)(3)(A). To rebut this presumption, Brown must
“offer some credible evidence” that he will not endanger the community or flee ifreleased. Cherry,
221 F. Supp. 3d at 32.
B. Brown Has Not Produced Evidence Sufficient to Rebut the Presumption of Detention

Brown argues that he will not pose a danger to the public or flee if released because he can
stay in his family’s home and “has the ability to find gainful employment, such that he could be
productive while awaiting the outcome of this case.” ECF No. 105 at 12. Brown also argues that
although he has used marijuana, he is not addicted to crack cocaine or heroin, which could call
into question his ability to comply with conditions of release. Jd. Finally, Brown’s counsel
represents that Brown is “having a very hard time” in jail and will abide by any conditions of pre-
trial release the Court imposes. Id.

Though Brown’s burden of production is not heavy, this evidence is not enough. See Hunt,
240 F. Supp. 3d at 131-32. The facts Brown offers boil down to: (1) he will stay with his family
if released pending trial, (2) he is not addicted to heroin or crack cocaine, (3) he has the ability to
find legal employment, and (4) he is having a very difficult time in jail. See ECF No. 105 at 12.
The fact that Brown has a place to live, is not addicted to heroin or crack cocaine, and could find
lawful employment, however, says nothing about whether he will continue to distribute narcotics
if released. As far as the Court is aware, these three facts were true at the time Brown was alleged
to have been participating in the drug-trafficking conspiracy. They were also true when Brown
incurred twenty-three GPS-monitoring infractions while on probation for his gun offense. See ECF
No. 50 at 5. This evidence thus does not move the needle for Brown.

The fourth fact offered—that Brown is having a hard time in jail—could indicate that

13
Brown will stay out of trouble if released to avoid being sent back to jail. But this fact also cuts
against Brown, as it suggests that he may have an incentive to flee to avoid serving substantial
time in prison if convicted. See 21 U.S.C. §§ 841(b)(1)(A)(vi) & (b)(1)(C). Accordingly, the
evidence Brown offers does not rebut the presumption of dangerousness and flight risk.

C. Even if Brown Had Met His Burden of Production, the Bail Reform Act Would Still
Require Pre-Trial Detention

Even if Brown had met his burden of production, the Court would nevertheless find that
he must be detained pending trial. After considering the factors set forth in § 3142(g), as well as
the presumption in favor of detention, the Court finds that no condition or combination of
conditions would reasonably assure his appearance as required or the safety of the community. See
18 U.S.C. § 3142(f); Hunt, 240 F. Supp. 3d at 132-33 (holding that if a defendant meets his burden
of production, the presumption of detention does not “disappear entirely”). In the sections that
follow, the Court will first assess dangerousness and will then consider risk of flight. Though a
finding of either would justify pre-trial detention, the Court finds both.

a. The Court Finds, by Clear and Convincing Evidence, that Brown Would Pose a
Danger to the Community if Released Pending Trial

i. Nature and Circumstances of the Offenses Charged

The nature of the offenses charged strongly suggests that, if released, Brown would pose a
danger to the D.C. community. The Bail Reform Act explicitly identifies offenses involving a
“controlled substance” as serious in nature. 18 U.S.C. § 3142(g)(1). Here, Brown has been charged
with three controlled-substance offenses: (1) conspiring to distribute and possessing with intent to
distribute 400 grams or more of a mixture containing a detectable amount of fentanyl and a mixture
containing a detectable amount of crack cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(A)(vi), 841(b)(1)(C), (2) unlawfully possessing with intent to distribute fentanyl in

violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C), and (3) unlawfully possessing with intent to
14
distribute powder cocaine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C). ECF No. 45 at 3, 7,
15-16. As far as controlled-substance offenses go, the crimes charged here are significant. If
convicted of the conspiracy charge, Brown will be sentenced to serve, at minimum, ten years’
imprisonment. See 21 U.S.C. § 841(b)(1)(A)(vi). At most, he could serve life. See id. Additionally,
Brown’s charges for possessing with intent to distribute fentanyl and possessing with intent to
distribute powder cocaine both carry a maximum sentence of twenty years’ imprisonment. See
21 U.S.C. § 841(b)(1)(C). These substantial terms of imprisonment reflect Congress’s
appreciation for the severity of these offenses.

Moreover, this is not the case of an individual seller working alone. In addition to the
charges for possessing with intent to distribute fentanyl and powder cocaine, Brown was also
charged with participating in a large-scale narcotics conspiracy that is alleged to have trafficked
400 or more grams of substances containing fentanyl and crack cocaine. See ECF No. 45 at 3, 7.
By allegedly participating in this drug-trafficking organization, Brown presumably had greater
access to narcotics and buyers than if he had been working alone. Brown’s alleged participation in
the conspiracy charged thus strongly suggests that, if released, he would have the means to
purchase and distribute narcotics and thereby endanger the D.C. community. See, e.g., United
States v. Holroyd, No. 17-cr-234-2, 2018 WL 294529, at *3 (D.D.C. Jan. 4, 2018) (“The
distribution of large quantities of narcotics into the community poses a significant danger to

communal safety.”).’

3 The Government argues that the photographs of Brown holding an AR-style firearm with a drum magazine
further show his dangerousness. ECF No. 53 at 8-9. It argues that the “pictures on social media indicate
the Defendant appeared to possess a rifle and drum magazine during the same time frame he was
distributing controlled substances.” Jd. at 9. Though it is possible that the photographs posted on Instagram
in July 2020 were indeed taken in July 2020, the Government has not introduced evidence of this. As a
finding of dangerousness must be supported by clear and convincing evidence, see 18 U.S.C. § 3142(f), the
Government has not provided sufficient evidence to support a finding of dangerousness based on Brown’s
possession of a gun. Nevertheless, because dealing narcotics without a weapon is still an inherently

15
In an attempt to minimize the seriousness of the charges against him, Brown argues that
although the Superseding Indictment “references 400 grams or more of fentanyl,” it alleges that
Brown’s conduct “involved [only] a detectable amount” of a mixture containing fentanyl. ECF
No. 105 at 2. The problem with this argument is that the Superseding Indictment says no such
thing. By adding “only” in brackets to the language of the Superseding Indictment, Brown makes
it seem as if he could have been charged with conspiring to distribute 399 grams of powdered
sugar and one gram of fentanyl. But the “detectable amount” language is commonly used in
indictments, as it tracks the language of the “penalties” section of the Controlled Substances Act.
See 21 U.S.C. § 841(b). Brown’s not-so-subtle alteration of the Superseding Indictment’s
allegations does not persuade the Court that the offenses charged are not serious.

ii. Weight of the Evidence

Not only has Brown been charged with inherently dangerous crimes, but the strong
evidence of his guilt further supports a finding that Brown’s release would endanger the public.*
The Government has proffered the following evidence of Brown’s guilt: On one occasion during
the summer of 2020, law enforcement observed Brown engaging in hand-to-hand transactions with
other subjects of the investigation. ECF No. 53 at 3. On another occasion during that same time,
law enforcement observed Brown and other subjects of the investigation congregating outside an

apartment passing around a Ziploc bag filled with over two ounces of marijuana. Jd That

dangerous activity, the fact that the Government has not proven by clear and convincing evidence that
Brown possessed a firearm while dealing narcotics makes no difference here. See Carter, 802 F. Supp. 2d
at 184 (“The purchase and sale of narcotics is an inherently dangerous activity[.]”).

* Courts in other Circuits have “cautioned that a district court assessing the weight of the evidence must not
consider the evidence of defendant’s guilt, but rather must consider only the weight of the evidence of the
defendant’s dangerousness.” Hunt, 240 F. Supp. 3d at 134 (emphases added); see Stone, 608 F.3d at 948;
United States v. Gebro, 948 F.2d 1181, 1121 (9th Cir. 1991). Even under this standard, however, the Court’s
analysis would be the same. Because defendant has been charged with three inherently dangerous crimes,
the evidence proffered by the Government in support of those charges likewise shows his dangerousness.

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apartment was the site of other suspected narcotics deals observed by law enforcement, and law
enforcement saw Brown maintain a presence at the apartment when suspected narcotics
transactions occurred. Jd. at 3-4.

Corroborating the Government’s allegations that Brown was engaging in narcotics
transactions in these locations during the summer of 2020, law enforcement found text messages
on Brown’s phone discussing the buying and selling of drugs. ECF No. 53 at 4-7. In July 2020,
Brown received text messages from a number tied to an individual convicted of several controlled-
substance offenses asking for an address. Jd. at 4. Brown responded with an address known to law
enforcement for its use by subjects of the investigation for drug sales. Jd. During the same month,
Brown also sent text messages to a handful of numbers advertising that he “got better Up,” which
is a common street name for powder or crack cocaine. /d. at 4-6. One of those individuals
responded to Brown’s text message saying, “Ok I need the down weighed out tho [sic].” Jd. at 5.
“Down” is a common street name for heroin or fentanyl. /d. at 5. And on another occasion, Brown
received a text message from another subject of the investigation telling him to “stay in the parking
lot.” Jd. Based on the location Brown provided in his response, law enforcement suspected that the
“parking lot’? was the one under surveillance in the investigation as a location of suspected
narcotics transactions. /d.

Perhaps the strongest evidence of Brown’s guilt is the evidence found on his person during
the search incident to arrest conducted in October 2020. See ECF No. 53 at 7. There, law
enforcement recovered a digital scale with white residue on it and five individually wrapped twists
containing a white, powdery substance. Jd. The substance weighed ten grams in total and tested

positive for fentanyl and powder cocaine. Jd. Taken together, the evidence gathered through

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physical and video surveillance, the text messages found on Brown’s phone, and the items found
on Brown’s person during the search incident to arrest present a strong case for Brown’s guilt.
Brown argues that the evidence proffered by the Government “suggest[s], at best, a
‘routine’ situation where a person ... sold drugs to several customers.” ECF No. 105 at 5. He
claims that “there does not appear to be evidence that the defendant was working with others in
connection with his alleged personal drug sales.” Jd. at 6. But the evidence proffered by the
Government belies this characterization. During the investigation, law enforcement observed
Brown on three occasions associating with other subjects of the conspiracy investigation. They
saw him (1) “maintain a presence” at an apartment building known to law enforcement as a place
where subjects of the investigation commonly engaged in narcotics transactions, (2) congregating
outside the same apartment building with other subjects of the investigation and passing around a
Ziploc bag full of what officers suspected was over two ounces of marijuana, and (3) congregating
with other subjects of the investigation on a sidewalk in Shaw while engaging in hand-to-hand
transactions with suspected buyers. ECF No. 53 at 3-4. Brown also exchanged text messages with
another subject of the investigation about meeting in a parking lot that law enforcement had under
surveillance due to its suspected use for drug deals. Jd. at 6. And when Suspected Buyer 1 (an
individual with a history of controlled-substance offenses) texted Brown asking for an “addy,”
Brown responded with the address of a location where law enforcement knew other subjects of the
investigation had been engaging in drug sales. /d. at 4. This evidence tying Brown to other subjects
of the investigation hardly paints a picture, as Brown insists, of a dealer acting alone. For these

reasons, the Court finds that the strong evidence of guilt further indicates Brown’s dangerousness.

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iii. History and Characteristics of the Defendant

Brown’s history and characteristics further support a finding of dangerousness. At age 22,
Brown has only one prior criminal conviction. In January 2020, he was convicted of carrying a
pistol] without a license in violation of D.C. Code § 22-4504. ECF No. 50 at 5; ECF No. 53 at 6.
This conviction indicates that Brown is willing to possess a firearm illegally, which suggests that
he may be willing to illegally possess a gun again. Though the Government has not introduced any
evidence that Brown was dealing narcotics in January 2020 when he was convicted of the gun
offense, this prior gun conviction increases the risk that Brown may illegally possess a firearm
again in the future. And because “drugs and guns are a dangerous combination,” Brown’s prior
gun offense thus weighs slightly in favor of a finding of dangerousness. Smith v. United States,
508 U.S. 223, 240 (1993).

More relevant, however, is the Government’s proffer that in May 2020, Brown was found
in possession of 409 grams of marijuana. The fact that Brown was found in possession of a large
quantity of a controlled substance suggests that he was trafficking that substance. See United States
v. Morris, 977 F.2d 617, 623 (D.C. Cir. 1992). And prior trafficking, in turn, is probative of future
trafficking. Cf United States v. Richards, 783 F. Supp. 2d 99, 103 (D.D.C. 2011) (holding that a
defendant’s “history of drug-related conduct and apparent escalation with drugs provides [a]
reason to believe that [the defendant] may continue to be involved with drugs if he is released
before trial”). His prior possession of a significant quantity of marijuana thus adds a thumb on the
scale in favor of a finding that Brown’s release would pose a danger because he will continue

trafficking narcotics.

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iv. Nature and Seriousness of the Danger Posed by Defendant's Release

Finally, the nature and seriousness of the danger Brown would pose if released further
weighs in favor of pre-trial detention. Brown has been charged with possessing with intent to
distribute two incredibly dangerous substances: fentanyl and cocaine. ECF No. 45 at 3, 7, 15-16.
Both drugs are categorized by the Controlled Substances Act as “Schedule II” substances, meaning
they “ha[ve] a high potential for abuse.” 21 U.S.C. § 812(b)(2)(A).

Fentanyl, a synthetic opioid, is “50 to 100 times more potent than morphine” and “50 times
more potent than heroin.” Centers for Disease Control and Prevention, Opioid Overdose,
https://www.cdc.gov/drugoverdose/opioids/fentanyl.html] (last visited May 2, 2021) (hereinafter
“Opioid Overdose”); United States Drug Enforcement Administration, More Than Three Million
Lethal Doses of Fentanyl Seized in Minnesota Last Year, https://www.dea.gov/press-
releases/2021/03/18/more-three-million-lethal-doses-fentanyl-seized-minnesota-last-year _ (last
visited May 2, 2021) (hereinafter “DEA Article”). In 2019 alone, more than 36,000 people died
from overdoses involving synthetic opioids. DEA Article, supra. The risk of overdosing from
synthetic opioids has grown sharply in recent years, as the deaths in 2019 marked a twelve-fold
increase from deaths in 2013. Opioid Overdose, supra; see United States v. Gordon, 839 F. App’x
574, 575 (D.C. Cir. 2021) (per curiam) (recognizing the “increasing danger of fentanyl in the local
community”).

Brown’s attempt to characterize the amount of fentanyl found on his person as “not very
significant” is, to put it mildly, unpersuasive. See ECF No. 105 at 7. When Brown was searched
in October 2020, law enforcement found 9.11 grams of a substance containing fentanyl. ECF No.
53 at 7. Though the Government is not currently aware of the purity rate of that substance, that

amount of fentanyl is substantial. For a dose of just two milligrams of fentanyl is lethal. DEA

20
Article, supra. This means that even if the 9.11 grams of substance found on Brown had a purity
rate of 1%, it would still contain forty-five lethal doses of the drug.

Cocaine likewise poses a serious risk to those who use it. DEA Article, supra. In 2018,
14,666 people died from overdoses involving cocaine. Jd. And like with synthetic opioids, deaths
involving cocaine are on the rise. Jd. From 2013 to 2018, cocaine overdoses nearly tripled. Jd.
Given that those who use fentanyl or cocaine risk serious bodily injury or death, the danger posed
to the D.C. community by Brown’s pre-trial release would be great.

In sum, after considering the § 3142(g) factors, the Court finds, by clear and convincing
evidence, that Brown would pose a danger to the D.C. community at large should he be released
pending trial. See 18 U.S.C. § 3142(f). Specifically, it finds that Brown would pose a danger to the
community by distributing fentanyl and cocaine around Washington, D.C.

b. The Threat of Future Narcotics Dealing is “Identified and Articulable”

In his reply brief, Brown suggests that a finding of dangerousness based on the likelihood
that he will possess and distribute narcotics if released is too “generalized” to satisfy the D.C.
Circuit’s recent ruling in Munchel. ECF No. 111 at 2. In Munchel, the D.C. Circuit held that to
order a defendant detained pending trial, “a court must identify an articulable threat posed by the
defendant to an individual or to the community.” Munchel, 991 F.3d at 1283. That “threat must be
considered in context.” Jd. “Whether a defendant poses a particular threat depends on the nature
of the threat identified and the resources and capabilities of the defendant.” /d. Relevant here, the
D.C. Circuit explained, “[w]hether [a] defendant poses a threat of dealing drugs, for instance, may
depend on the defendant’s past experience dealing, and her means of continuing to do so in the

future.” Jd. (internal citations omitted).

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Brown does not offer any reasons why he believes the threat of future drug dealing is too
“generalized” to support pre-trial detention. See ECF No. 111 at 1-2. Nor could he, as the D.C.
Circuit explicitly acknowledged in Munchel that a threat posed by a defendant released pending
trial can be the “threat of dealing drugs.” Munchel, 991 F.3d at 1283. This recognition was hardly
novel. In its report on the Bail Reform Act, the Senate Judiciary Committee explained that it
“intend[ed] that the concern about safety [in the Act] be given a broader construction than merely
danger of harm involving physical violence” and “emphasize[d] that the risk that a defendant will
continue to engage in drug-trafficking constitutes a danger to the safety of any other person or the
community.” 3B Wright & Miller, Federal Practice and Procedure § 766 (4th ed.) (quoting S.
Rep. No. 98-225 at 12-13). This fear that defendants charged with serious drug offenses could
endanger the community by continuing to distribute narcotics was precisely why the Bail Reform
Act established a rebuttable presumption of dangerousness for defendants convicted of serious
drug offenses. Alatishe, 768 F.2d at 370 n.13. Courts in this Circuit thus routinely recognize that
the threat of continued drug dealing is a danger to the community. See, e.g., Little, 235 F. Supp.
3d at 279; United States v. Settles, 12 F. Supp. 3d 56, 58-59 (D.D.C. 2013); United States v. Carter,
802 F. Supp. 2d 180, 184 (D.D.C. 2011); United States v. Moorer, 783 F. Supp. 2d 154, 160
(D.D.C. 2011).

So while Munchel identified new factors that courts must consider when assessing the
dangerousness of defendants involved in the January 6 Capitol riots, Munchel did not alter the
dangerousness analysis for defendants charged with controlled-substance offenses. See Munchel,
991 F.3d at 1284-85 (directing district courts to consider whether the defendants acted violently
on January 6 as well as “the specific circumstances that made it possible, on January 6, for [the

defendants] to threaten the peaceful transfer of power” when assessing dangerousness under the

22
Bail Reform Act). Instead, the D.C. Circuit merely recognized that dealing drugs is an “identified
and articulable threat.” Munchel, 991 F.3d at 1283 (quoting Salerno, 481 U.S. at 751).

Finally, to the extent that Brown believes the Court has not made the requisite findings to
support its holding that Brown poses a danger to the community due to the threat of continued
dealing, this argument fails too. See ECF No. 105 at 11. In finding that Brown would continue
distributing narcotics if released pending trial, the Court considers the factors identified in Munchel
as probative of a defendant’s future dealing. As explained above, the Court relies on the strong
weight of the evidence showing Brown’s “past experience dealing” and connection to a drug-
trafficking conspiracy, which would give him the “means of continuing to do so in the future.”
Munchel, 991 F.3d at 1283. The Court’s finding that Brown’s release would pose a danger to the
community based on the threat of future drug dealing is thus fully consistent with the D.C. Circuit’s
ruling in Munchel.

c. The Court Finds, by a Preponderance of the Evidence, that Brown Would Pose a
Flight Risk if Released Pending Trial

Even if Brown’s release would not endanger the community, the Bail Reform Act would
still require Brown’s pre-trial detention. Given the severity of the punishment Brown faces if
convicted, the strong weight of the evidence against him, and Brown’s history of failing to comply
with his probation conditions, the Court finds by a preponderance of the evidence that Brown’s
release would pose a risk of flight. See Xulam, 84 F.3d at 442 (requiring a finding of flight risk to
be supported by a preponderance of the evidence).

i. Nature and Circumstances of the Offenses Charged

As noted above, Brown has been charged with three very serious drug offenses. If

convicted of the conspiracy charge, he will be sentenced to at /east ten years in prison. See

21 U.S.C. § 841(b)(1)(A)(vi). And if convicted of possessing with intent to distribute fentanyl or

23
powder cocaine, he could be sentenced to up to twenty years in prison. See 21 U.S.C.
§ 841(b)(1)(C). A conviction on any of these offenses would force Brown to spend a significant
portion of his life behind bars. The severity of this potential punishment, coupled with Brown’s
difficulty adjusting to jail, could give Brown a strong incentive to flee. See ECF No. 105 at 12.
ii. Weight of the Evidence

The strong weight of the evidence of Brown’s guilt further supports a finding that Brown
is a flight risk. As explained above, the Government has proffered evidence that Brown has been
observed engaging in hand-to-hand transactions at locations known to law enforcement for their
use by subjects of the investigation for narcotics transactions, has exchanged text messages with
individuals about selling cocaine (“up”) and fentanyl or heroin (“down”), and was found with a
scale, fentanyl, and powder cocaine on his person. See ECF No. 53 at 3-10. This strong evidence
against Brown further increases his risk of flight.

iii. | History and Characteristics of the Defendant

As defense counsel candidly acknowledged at the hearing, Brown “comes in with some
strikes given his history.”” At age 22, Brown has already displayed a disrespect for the judicial
system. In January 2020, Brown was convicted of carrying a pistol without a license and sentenced
to six months’ probation. ECF No. 50 at 5. While on probation for that offense, he was arrested
twice and thus ordered to wear a GPS monitor. ECF No. 53 at 10. In less than a one-month span,
however, Brown managed to incur twenty-three violations for failing to charge the battery on his
GPS monitor. Jd. He did so despite agreeing that he would charge the device twice per day and
being informed that, if the battery becomes low, the device will vibrate. Jd. at 7. Brown’s clear

distaste for having his whereabouts monitored strongly suggests that he may flee if released

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pending trial. Indeed, the recency of this behavior, which occurred less than a year ago, only
strengthens that finding. See id.

d. No Condition or Combination of Conditions of Release Could Reasonably Assure
Brown’s Appearance as Required or the Safety of the Community

In his motion, Brown proposes that he be released on “home confinement, such that he
would not be allowed to leave his house unless he had verifiable employment.” ECF No. 105 at
11. Alternatively, Brown asks that he be released on “home confinement” 24 hours per day. Jd.
Yet given Brown’s history, the Court finds even home incarceration insufficient to reasonably
assure the public safety and mitigate his flight risk.

After he was convicted of unlawfully possessing a pistol without a license in January 2020,
Brown was sentenced to six months’ probation. ECF No. 53 at 10. While on probation, he incurred
two arrests, one of which was for possessing 409 grams of marijuana. Jd. As a result of his
behavior, Brown was ordered to wear a GPS monitoring device. Jd. Within the span of one month,
however, he incurred twenty-three infractions for failing to keep his device properly charged. ECF
No. 50 at 5. He also violated his curfew while on probation eight times. Jd. Eventually, in October
2020, Brown’s probation was terminated unsatisfactorily and he was charged with tampering with
a detection device. Jd. at 4. Brown was under supervision for the tampering charge up until his
arrest for the present offenses. Jd. According to pre-trial services, Brown failed to report by
telephone twice in the thirty-day period before his arrest. ECF No. 50 at 4.

Given Brown’s recent refusal to properly charge his GPS monitoring device, comply with
his curfew, or make required telephone check-ins, the Court is unpersuaded that he will comply
with the conditions of home incarceration. See 18 U.S.C. § 3142(f). Without his willingness to
keep his GPS device charged, abide by a curfew, or answer telephone check-in calls, pre-trial

services will not be able to monitor his whereabouts and ensure that he is actually staying home.

25
Moreover, requiring Brown to stay home 24 hours per day would not reasonably assure
that he does not distribute narcotics. See Little, 235 F. Supp. 3d at 279-80. Nothing would stop
Brown from simply dealing drugs out of his house. Indeed, at the hearing, defense counsel admitted
that pre-trial services cannot monitor what he does inside his home. And being under the Court’s
supervision certainly did not deter him from possessing controlled substances in the past, as he
was caught with 409 grams of marijuana while on probation. For these reasons, the Court finds
that even home incarceration would not reasonably assure the public safety or mitigate Brown’s
risk of flight.

IV. CONCLUSION

For the reasons explained above, the Court finds that no condition or combination of
conditions of pre-trial release could reasonably assure Brown’s appearance as required or the
safety of the community. See 18 U.S.C. § 3142(f). The Court will thus DENY his motion to revoke
the order of detention, ECF No. 105.

A separate Order consistent with this Memorandum Opinion shall issue.

Date: May 3 , 2021 “Re C Lontete

Hon. Royce C. Lamberth
United States District Judge

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