United States v. Bilbrough, Criminal Action No. TDC-20-0033

452 F.Supp.3d 264

UNITED STATES of America

v.William Garfield BILBROUGH, IV, Defendant.

Criminal Action No. TDC-20-0033

United States District Court, D. Maryland.

Signed April 7, 2020

Thomas Patrick Windom, Thomas M Sullivan, Office of the United States Attorney, Greenbelt, MD, Jamie M. McCall, U.S. Attorney's Office District of Delaware, Wilmington, DE, for United States of America.

Robert C. Bonsib, Megan Elizabeth Coleman, Marcus and Bonsib LLC, Greenbelt, MD, for Defendant.

MEMORANDUM ORDER

THEODORE D. CHUANG, United States District Judge On January 22, 2020, United States Magistrate Judge Timothy J. Sullivan ordered Defendant William Garfield Bilbrough, IV detained pending trial based on the finding that, pursuant to 18 U.S.C. § 3142(e), no condition or combination of conditions of release would reasonably assure the appearance of the defendant as required and the safety of the community pending trial. After Magistrate Judge Sullivan denied two Motions for Review of the Detention Order based on changed circumstances, ECF Nos. 47, 69, Bilbrough filed the pending Appeal from the Denial of the Defendant's Motion to Vacate Detention Order, ECF No. 77, which seeks review by the district judge pursuant to 18 U.S.C. § 1345(b). The Motion is fully briefed, and the Government has filed a Motion for Leave to File a Surreply, ECF No. 88. Because Bilbrough's reply brief asserted new arguments not raised in the original Motion, the Government's Motion will be granted and the Court will consider the surreply brief.

The Court is required to conduct a de novo review of the Magistrate Judge's ruling. United States v. Stewart , 19 F. App'x 46, 48 (4th Cir. 2001) (citing United States v. Rueben , 974 F.2d 580, 585-86 (5th Cir. 1992) ). Having reviewed the recording of the two prior detention hearing on January 22, 2020 and March 4, 2020, considered the Indictment and the pretrial services report, reviewed the submitted briefs and exhibits on the present and all prior detention motions, and reviewed the Magistrate Judge's oral and written rulings on detention, the Court affirms the Magistrate Judge's detention order because the Court finds that, upon consideration of the factors in 18 U.S.C. § 3142(g), no condition or combination of conditions of release would reasonably assure the defendant's appearance as required or the safety of the community pending trial. The Court further finds that the ongoing coronavirus pandemic does not provide a sufficient basis to alter the conclusion that detention is warranted.

DISCUSSION

I. Risk of Flight and Danger to the Community

As a threshold issue, Bilbrough argues that he may not be detained pending trial based on the danger he presents to the community because he has not been charged with one of the crimes listed in 18 U.S.C. § 3142(f)(1). This provision, however, describes one basis to justify a detention hearing, not a precondition to detention. 18 U.S.C. § 3142(f) states that "[t]he judicial officer shall hold a hearing to determine whether any condition or combination of conditions ... will reasonably assure the appearance of such person as required and the safety of any other person and the community" either (1) upon motion of the attorney for the Government in a case that involves" one of five categories of crimes; or (2) "upon motion of the attorney for the Government or upon the judicial officer's own motion, in a case that involves" either "a serious risk that such person will flee" or "a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror." 18 U.S.C. § 3142(f) (emphasis added). The plain language of the statute thus provides that a detention hearing may be triggered by any of these conditions, and that the scope of any detention hearing is both risk of flight and danger to the community. See id. The distinction between the different bases for holding a detention hearing in the first place is that a hearing based on the type of offense committed may be held only upon a motion by the Government, while either a Government motion or a determination by the judge could warrant a hearing based on risk of flight or obstruction of justice. See id. § 3142(f)(1), (2). As for the appropriate basis for a detention determination, where detention is warranted only if the judicial officer finds a lack of conditions that "will reasonably assure the appearance of the person as required and the safety of any other person and the community," it is clear that once a hearing has been properly held, both risk of flight and danger to the community are necessarily at issue and may be considered. 18 U.S.C. § 3142(e)(1) (emphasis added).

Contrary to this language, the United States Court of Appeals for the Third Circuit has rejected the argument that "once a hearing is authorized any evidence of danger to the community from recidivism may be relied upon to justify pretrial detention" and concluded that detention may be imposed "only upon proof of a likelihood of flight, a threatened obstruction of justice or a danger of recidivism in one or more of the crimes actually specified by the bail statute." See United States v. Himler , 797 F.2d 156, 160 (3d Cir. 1986) ; see also United States v. Ploof , 851 F.2d 7, 11 (1st Cir. 1988) (holding that "where detention is based on dangerousness grounds, it can be ordered only in cases involving one of the circumstances set forth in § 3142(f)(1)"). The United States Court of Appeals for the Fifth Circuit, however, even while agreeing that "a defendant's threat to the safety of other persons or to the community, standing alone, will not justify pre-trial detention," did not foreclose consideration of such danger when "any one of the six listed circumstances that warrants pre-trial detention is present," meaning that the case involved "a crime of violence or any one or more of the § 3142(f) factors," which include a serious risk of flight. United States v. Byrd , 969 F.2d 106, 110 (5th Cir. 1992) ; see also United States v. Twine , 344 F.3d 987, 987 (9th Cir. 2003) (after finding that felon-in-possession of a firearm was not a crime of violence under the Bail Reform Act warranting a detention hearing, holding that pretrial detention is not available "solely on a finding of dangerousness" (emphasis added)). Where Byrd is consistent with the Court's reading of the statutory language, the Court concludes that 18 U.S.C. § 3142 permits consideration of a defendant's danger to the community where a detention hearing was properly invoked on risk-of-flight grounds under 18 U.S.C. § 3142(f)(2)(A), and risk of flight is, in fact, a basis for detention under 18 U.S.C. § 3142(e).

Here, the detention hearing was proper because at Bilbrough's initial appearance, the Government moved for, and United States Magistrate Judge Charles B. Day granted, a detention hearing on the grounds that Bilbrough was a serious risk of flight. United States v. Bilbrough , No. 20-MJ-0194-CBD, ECF Nos. 6, 8. As discussed below, there was sufficient evidence for risk of flight to be an appropriate basis for detention. Accordingly, the Magistrate Judge's consideration of danger to the community was proper even if not based on one of the categories of offenses in 18 U.S.C. § 3142(f)(1).

In considering the questions of risk of flight and danger to the community, the Court considers (1) the nature and circumstances of the offenses charged; (2) the weight of the evidence against the person; (3) the history and characteristics of the person; and (4) the nature and seriousness of the danger posed to any person or the community upon release. 18 U.S.C. § 3142(g).

A. Nature and Circumstances of the Offenses

Bilbrough is charged in the Indictment with one count of conspiracy to transport an alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) ; two counts of transporting an alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(A)(v)(II) ; one count of conspiracy to transport and harbor an alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) ; and one count of harboring an alien, in violation of 8 U.S.C. § 324(a)(1)(A)(iii) and (a)(1)(A)(v)(II). On their face, these charges do not involve crimes of violence, firearms charges, or drug trafficking charges. The maximum term of imprisonment on the conspiracy charges is ten years, while the maximum term of imprisonment on the transporting and harboring charges is five years.

However, the circumstances of these charges are more troubling. The alien at issue was co-defendant Patrick Jordan Mathews, a Canadian who entered the United States illegally after a search warrant was executed at his residence. In August 2019, Bilbrough and co-defendant Brian Mark Lemley, Jr. drove from Maryland to Michigan to transport Mathews back to the Maryland area and beyond. All three co-defendants were associated with The Base, a white supremacist group that organized military-style training camps, supports the overthrow of the United States government and the creation of a white ethno-state, and espouses the commission of acts of violence against minority communities. In November 2019, all three co-defendants were at a Base training camp in Georgia, and Lemley and Bilbrough purchased over 1,500 round of ammunition before all three drove back to Maryland. That month, Lemley and Mathews began to construct an assault rifle, which Bilbrough handled when they met together in December 2019. Over the next month, Lemley and Mathews took additional steps as part of a plan to use the firearm to commit acts of violence at a January 20, 2020 public event in Richmond, Virginia before they were arrested on January 16, 2020. Thus, although the specific statutory charges are not overtly serious, and Bilbrough is not charged with firearms offenses and apparently did not participate in the plans relating to the Virginia event, his criminal activity facilitated the...