Zia M. Faruqui, United States Magistrate Judge

Kimberly Louise Paschall, Mary Lyle Dohrmann, U.S. Attorney's Office, Washington, DC, for United States of America.

Nabeel Kibria, Ervin Kibria PLLC, Tony W. Miles, Federal Public Defender for the District of Columbia, Washington, DC, for Defendants.

DETENTION MEMORANDUM

Zia M. Faruqui, United States Magistrate Judge At the conclusion of a detention hearing, and upon consideration of the proffers and arguments of both parties, as well as the entire record, the Court ordered the Defendant held without bond. This memorandum is submitted in compliance with the statutory obligation that "the judicial officer shall ... include written findings of fact and a written statement of the reasons for the detention." 18 U.S.C. § 3142(i)(1).

PROCEDURAL HISTORY

On September 25, 2020, Metropolitan Police Department (MPD) officers arrested the Defendant, and the next day the Court issued an arrest warrant pursuant to a criminal complaint charging him with one count of 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). On September 28, 2020, the Defendant made his initial appearance. The United States requested a detention hearing pursuant to:

- 18 U.S.C. § 3142(d)(1)(A)(iii), which requires the Court to temporarily detain a defendant who is on probation or parole;

- 18 U.S.C. § 3142(f)(1)(D), which authorizes a detention hearing where a defendant is charged with a felony and has certain prior qualifying convictions; and

- 18 U.S.C. § 3142(f)(1)(E), which authorizes a detention hearing where a defendant is charged with a felony involving a firearm.

The Court granted the government's motion and proceeded immediately to the detention hearing.

FINDINGS OF FACT

On September 25, 2020, MPD officers responded to a location in Southeast, Washington, District of Columbia, based on an anonymous report that an unresponsive individual was lying under a vehicle. See ECF No. 1 (Compl., Stmt. of Facts). D.C. Fire Department members arrived first to the scene, where they found the Defendant unconscious. See id. They administered Narcan to resuscitate him. See id. The Fire Department members found a firearm loaded with one round of ammunition in the chamber and twelve rounds in the magazine in the Defendant's waistband, which they removed while he was still unresponsive. See id. The firearm was a 45mm semi-automatic pistol. See id. When the MPD officers arrived, they saw the Defendant lying on the ground and regaining consciousness. See id.

In 2012, the Defendant was convicted of Accessory After the Fact: Assault with Intent to Commit Robbery While Armed. See ECF No. 2 (Pretrial Services Rpt.) at 3. In 2014, the Defendant was convicted of Second-Degree Murder and Use of a Handgun/Crime of Violence. See id. at 2–3.

LEGAL STANDARD

The Bail Reform Act provides that if "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)(1). A detention decision based upon the defendant's dangerousness to the community must be supported by "clear and convincing evidence." 18 U.S.C. § 3142(e)(1), (f) ; see also Smith , 79 F.3d at 1209. In contrast, a detention decision based upon a "risk of flight ... need only be supported by a ‘preponderance of the evidence.’ " United States v. Simpkins , 826 F.2d 94, 96 (D.C. Cir. 1987) (quoting United States v. Vortis , 785 F.2d 327, 329 (D.C. Cir. 1986) (per curiam)).

Pursuant to 18 U.S.C. § 3142(g), the factors considered in deciding detention are: (1) the nature and circumstances of the offense; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. 18 U.S.C. § 3142(g).

ANALYSIS

The Court finds that Defendant should be detained pending trial because his release presents a danger to the community that cannot adequately be mitigated by any conditions or combination of conditions.

A. Nature and Circumstances of the Charged Offense

"In determining the nature and circumstances of the offense charged, the Bail Reform Act requires taking into consideration whether the offense is a crime of violence or involves a firearm." United States v. Ausby , No. 72-CR-67-BAH, 2019 WL 2452988, at *3 (D.D.C. June 11, 2019) (citing 18 U.S.C. § 3142(g)(1) ). The Defendant was found in the community while apparently under the influence of a controlled substance—as evidenced by his response to the administration of Narcan—with a loaded firearm on his person. "[C]arrying a loaded firearm—especially if the carrier has a violent history ... has the great potential to escalate into violence," United States v. Cole , 459 F. Supp. 3d 116, 120 (D.D.C. 2020). "If, as the Government alleges, [the Defendant] was under the influence of ... opiates at the time of the offense, this only heightens the risk of violence," id. Notably, the firearm recovered from the Defendant's person had a round already chambered, making the circumstances even more troubling. See United States v. Jackson , No. 17-CR-175-PP, 2018 WL 4829198, at *14 (E.D. Wis. Oct. 4, 2018) (noting in detention order that the defendant possessed "a loaded gun with a round in the chamber and an extended magazine"); see also United States v. Muschetta , 118 F. Supp. 3d 340, 345 (D.D.C. 2015) (same). "Of particular significance is that Defendant was on supervised release at the time of his arrest in this matter," United States v. Washington , No. 07-CR-131-13-JR/DAR, 2007 WL 9710629, at *2 (D.D.C. Aug. 3, 2007). This factor weighs in favor of detention.

B. The Weight of the Evidence Against the Person

i. Evidence of Charged Conduct

The weight of the evidence that the Defendant possessed a firearm is very strong. Fire Department members directly observed the Defendant lying on the ground unconscious with a firearm in his waistband, which they recovered and emptied. See ECF No. 1 (Compl., Stmt. of Facts). This factor weighs in favor of detention. See United States v. Howard, No. MAG 20-181-BAH, 2020 WL 5642288, at *3 (D.D.C. Sept. 21, 2020) (finding the weight of evidence against the defendant "is strong and favors detention[,] [because] [t]he loaded firearm was discovered directly on defendant's person" and those facts were confirmed by officer's body camera footage); United States v. Riggins , 456 F. Supp. 3d 138, 145 (D.D.C. 2020) (finding the weight of evidence favored detention where "[a]ccording to the Government's unrebutted description of the event, [defendant] was found with the firearm on his person").

The Defendant argued that the evidence against him is weak, as he was unconscious at the time the firearm was recovered. Whether Defendant was voluntarily in possession of the firearm or was under the influence of a substance to such extent that he was unable to form the requisite mens rea for a conviction is a triable issue. The Defendant emphasized that the firearm was removed from his person while he was unconscious, and there is no evidence as to how it got on his person in the first place. However, the undersigned notes that Defendant proffered no plausible, alternative explanation for how the firearm came to be in his waistband.

ii. Evidence of the Person's Guilt

"Defense counsel's suggestion that this weight-of-the-evidence analysis now relates only to an assessment of record evidence concerning the likelihood that the person will fail to appear or will pose a danger finds no support in this jurisdiction," United States v. Wiggins , No. 19-CR-258-KBJ, ––– F.Supp.3d ––––, ––––, 2020 WL 1868891, at *6 (D.D.C. Apr. 10, 2020) (internal quotation marks and citations omitted). "Nor could it, given that the ‘relevant statutory language does not focus on the evidence of danger to the community ...; rather, it requires that the judicial officer consider the "weight of the evidence against the person [.]" ’ " Id. (quoting United States v. Taylor , 289 F. Supp. 3d 55, 66 (D.D.C. 2018) (quoting 18 U.S.C. § 3142(g)(2) ) (emphasis in original)). "The Court is unconvinced that the ‘weight of the evidence’ factor focuses on the defendant's danger to the community (or risk of flight) to the exclusion of any consideration of the strength of the government's case." United States v. Taylor , 289 F. Supp. 3d 55, 66 (D.D.C. 2018). "[R]eading the second factor to turn on evidence of dangerousness—as opposed to evidence of guilt of the crimes charged in the indictment—would therefore run afoul of the canon against superfluity[,]" because the fourth factor directs an inquiry as to dangerousness. United States v. Jaffee , No. 19-CR-88-RDM, 2019 WL 1932549, at *5 (D.D.C. May 1, 2019) (citing Marx v. General Revenue Corp. , 568 U.S. 371, 383–85, 133 S.Ct. 1166, 185 L.Ed.2d 242 (2013) ); see also Ausby , 2019 WL 2452988, at *4 n.3 (noting that the fourth factor, not second factor, requires consideration of dangerousness) (citing Taylor , 289 F. Supp. 3d at 66 ). Courts have regularly applied this standard. See, e.g. , United States v. Cruz-Hernandez , 422 F. Supp. 3d 157, 161 (D.D.C. 2019) (Judge Kollar-Kotelly looked to strength of evidence of defendant's guilt); United States v. Slatten , 286 F. Supp. 3d 61, 68 (D.D.C. 2017), aff'd , 712 F. App'x 15 (D.C. Cir. 2018) (same, Lamberth, J.); United States v. Samuels , 18-CR-144-RC/GMH, 2018 WL 2304787, at *5 (D.D.C. May 21, 2018) (same, Harvey, Mag. J.); United States v. Mercer , 4 F. Supp. 3d 147, 150 (D.D.C. 2013) (same, Huvelle, J.); United States v. Hassanshahi , 989 F. Supp. 2d 110, 115 (D.D.C. 2013) (same, Contreras, J.); United States v. Ali , 793 F. Supp. 2d 386, 388 (D.D.C. 2011) (same, Friedman, J.).

In cases such as this, where the Defendant is charged with a crime that statutorily raises concerns as to the danger to the community, the strength of the evidence as to guilt matters for three reasons. First, dangerousness correlates with the strength of the evidence. An "airtight" case may leave a defendant feeling like he has nothing to lose, driving him out of desperation/frustration to engage in witness intimidation or other risky behavior with his perceived dwindling moments of freedom. Cf. United States v. Rodriguez , No. 09-CR-331A, 2012 WL 6690197, at *13 (W.D.N.Y. Dec. 21, 2012) (finding that evidence appeared "to be strong and has strengthened over the course of the case" which led to conclusion that the defendant "would pose a danger to the community despite lifelong ties to the [ ] area"); Glenn v. Wilkinson , 309 F. Supp. 411, 419 (W.D. Mo. 1970) (prison noted risk of "danger of violence to others, especially since presumably a condemned man has nothing to lose"). The same is true in matters raising flight-risk concerns: where the evidence of guilt is stronger, the defendant is more likely to flee. See United States v. Otunyo , 18-CR-251-BAH, 2020 WL 2065041, at *5 (D.D.C. Apr. 28, 2020) ("[T]he strength of the evidence provides defendant with further reason to attempt to flee if released ...."). Second, strong evidence that a defendant committed a charged, dangerous offense demonstrates a willingness or capability of committing a similar offense if released. Third, judges should be hypersensitive to detaining a defendant against whom the evidence of guilt is weak, as that person may otherwise never spend time in confinement.

Examining the weight of the evidence as to guilt does not run afoul of due process. A defendant is "entitled to an evidentiary hearing at which he may contest (among other things) ‘the weight of the evidence against’ him ... [that is,] the weakness of the prosecution's case," Kaley v. United States , 571 U.S. 320, 349, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014) (Roberts, C.J., dissenting). On the contrary, due process is served by such hearing that incorporates an assessment of the evidence against the defendant. Cf. United States v. Salerno , 481 U.S. 739, 750, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (noting importance of "full-blown adversary hearing" before "a neutral decisionmaker"). In such inquiry, the presumption of innocence is not lost; yet, courts have conflated weighing the strength of the evidence with concluding a defendant is guilty. See United States v. Gebro , 948 F.2d 1118, 1121 (9th Cir. 1991) (internal citations omitted) (finding that the Bail Reform Act "neither requires nor permits a pretrial determination of guilt"). The two determinations could not be more different. Unlike with the guilt phase of a trial, judges making detention determinations can consider "evidence that may ultimately be challenged and suppressed." Ausby , 2019 WL 2452988, at *7 (citing 18 U.S.C. § 3142(f) ). Judges can walk and chew gum at the same time—they can both presume innocence and assess how strong or weak (or even potentially inadmissible) evidence is as to guilt or innocence. See United States v. Salkicevic , No. 15-CR-0060, 2015 WL 525556, at *3 (N.D. Ill. Feb. 10, 2015) ("While all defendants are presumed innocent, that presumption, which the Act itself recognizes, obviously does not preclude or render superfluous an analysis of the weight of the evidence against a defendant."). Ironically, limiting the determination of the weight of the evidence as to dangerousness also forecloses examining the weakness of the government's evidence (i.e., the exculpatory evidence), which may affirmatively justify release. See Taylor , 289 F. Supp. 3d at 66.

C. The History and Characteristics of Defendant

Defendant proffered that he has strong ties to the community and that there are multiple places he could reside were he to be released, including with his fiancée. He also highlighted that he supports his three biological children and two children who are like stepchildren to him. Furthermore, although he has a criminal record, he has no convictions for escape, bench warrants, or a history of failing to appear in court. For these reasons, the undersigned finds that Defendant is not a flight risk; however, his record of violent convictions make this factor, on balance, weigh in favor of detention.

Defendant has two serious prior convictions. In 2012, Defendant was convicted of Accessory After the Fact: Assault with Intent to Commit Robbery While Armed. In 2014, the Defendant was convicted of Second-Degree Murder and Use of a Handgun/Crime of Violence. Defendant proffered that because he was released only a few years after his conviction, this conviction must not be as serious as it may seem. Even acknowledging the Defendant's relatively short sentence for this conviction, criminal conduct that results in someone's death—regardless of the punishment imposed—is a serious offense. This prior conviction is especially concerning because it involved a firearm, as does Defendant's current charged conduct.

D. The Danger to the Community

The danger posed by the Defendant's release is that he would use or possess a firearm in a dangerous way. Firearms present a risk of danger from either intentional or unintentional discharge; each risk has the potential to cause injury or death to members of the community. Cf. Taylor , 289 F. Supp. 3d at 71 ("[A]lthough the mere fact that the defendant possessed a firearm does not constitute evidence of a danger to the community, possession of a firearm by a convicted felon who is allegedly engaged in illegal drug distribution is a different matter."); United States v. Singleton , 182 F.3d 7, 15 (D.C. Cir. 1999) ("[F]elons with guns may as a class be more likely than non-felons with guns or felons without guns to commit violent acts ...."). Here, the Defendant had a loaded firearm on his person while apparently under the influence of a controlled substance. See Cole , 459 F. Supp. 3d at 121 (internal quotation marks and citation omitted) (finding that "a convicted felon on supervision for a violent offense involving the use of a firearm," [and being] "under the influence of narcotics on the street in a residential area in possession of a [ ] loaded [ ] firearm" poses a danger to the community). This firearm could have discharged, causing injury to the Defendant or anyone else in the area, or it could have easily been taken by someone else, as evidenced by the fact that a member of the Fire Department was able to remove the firearm from his waistband while the Defendant remained unresponsive. "This recidivist behavior involving a loaded firearm, though not used overtly in other criminal conduct, nonetheless provides clear and convincing evidence that defendant is not deterred from engaging in such conduct and that his release therefore poses a risk of danger to the community. Defendant's criminal history further engenders concern that he would be dangerous if released, as his history of violent offenses heightens the risk that his possession of a firearm would cause danger to the community." Howard , 2020 WL 5642288, at *4 ; see also Singleton , 182 F.3d at 15 ("distinction between violent and non-violent felonies is therefore meaningful in the context of § 3142(f)(1)(A) determinations"). Given the Defendant's repeated offenses and his instant re-arrest while on supervision, the Court has little confidence that even strict release conditions, such as home incarceration, would adequately mitigate the danger posed by his release. See Howard , 2020 WL 5642288, at *4.

E. COVID-19

Defendant expressed concerns regarding the D.C. jail's ability to handle the ongoing coronavirus pandemic. Although the pandemic is serious and the safety of defendants in the jail is of paramount importance, the rate of infection within the D.C. jail appears to be under control. The Department of Corrections "has taken several protective measures, including banning non-attorney visits, screening visitors and incoming inmates, quarantining new inmates for 14 days, and more." Cole , 459 F. Supp. 3d at 122. At the time of the hearing, the Court understood only two inmates to be infected with COVID-19, which, although concerning, suggests that the current infection rate in the D.C. jail is no worse than in the community. Additionally, the Defendant does not claim to be in a high-risk category for COVID-19. See generally Cole , 459 F. Supp. 3d at 121–22 (the defendant did not assert that he had any comorbidities that exposed him to a greater risk to the coronavirus, which "distinguishe[d] Cole's case from most of the cases in which courts have ordered prisoners released because of COVID-19"); United States v. Bailey , No. 19-CR-391-JDB [ECF No. 49], at 5 (D.D.C. Apr. 2, 2020) (denying motion where defendant "presented no evidence that any of her medical conditions place her at higher risk for a severe case of COVID-19"). "More, as Judge Ketanji Brown Jackson has observed, releasing a defendant into high-supervision home detainment may pose ‘heightened safety risks ... to the probation officers who would be tasked with monitoring his behavior while he is out of jail on pretrial release.’ " Cole , 459 F. Supp. 3d at 122 (quoting United States v. Lee , 451 F.Supp.3d 1, 8 (D.D.C. 2020) ). Thus, at this time, the coronavirus pandemic is not a sufficient basis to justify the Defendant's release.

CONCLUSION

Based on consideration of all the evidence, the factors set forth in section 3142(g) of the Bail Reform Act, and all lesser restrictive alternatives to pretrial detention, the Court finds by clear and convincing evidence that no condition or combination of conditions exist that would reasonably assure the safety of any other person or of the community if Defendant were to be released. Therefore, the government's motion for pretrial detention is GRANTED .

DIRECTIONS REGARDING DETENTION

Defendant is ORDERED remanded to the custody of the Attorney General or to the Attorney General's designated representative for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. Defendant must be afforded reasonable opportunity for private consultation with defense counsel. On order of a court of the United States or on request of an attorney for the government, the person in charge of the corrections facility must deliver Defendant to a United States Marshal for the purpose of an appearance in connection with a court proceeding.