United States v. Thomas

456 F.Supp.3d 69

UNITED STATES of America,

v.David Lee THOMAS, also known as Abdullah Malik Thomas, Defendant.

Criminal Action No. 17-194 (RDM)

United States District Court, District of Columbia.

Signed April 20, 2020

Karla-Dee Clark, Lisa N. Walters, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

Carmen D. Hernandez, Highland, MD, for Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

Defendant David Lee Thomas moves for release from detention in light of the global COVID-19 pandemic. Dkt. 89. For the reasons explained below, the Court will deny Thomas's motion to the extent he seeks release under 18 U.S.C. § 3145(b) and § 3142(e) but will grant his motion for temporary release pursuant to § 3142(i).

I. BACKGROUND

A. Statutory Context

Under the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. , if a judicial officer finds after conducting a hearing that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the [defendant] before trial." 18 U.S.C. § 3142(e). In making this assessment, the default is generally that a defendant should be released pending trial, but the Bail Reform Act creates a rebuttable presumption "that no condition or combination of conditions will reasonably assure ... the safety of the community if ... there is probable cause to believe that the person committed" one of an enumerated list of crimes, including a violation of 18 U.S.C. § 924(c). United States v. Taylor , 289 F. Supp. 3d 55, 62 (D.D.C. 2018) (quoting 18 U.S.C. § 3142(e)(2) ). A grand jury indictment is sufficient by itself to establish probable cause for the purposes of § 3142(e)(2). See id. Once the presumption is triggered, the defendant, at a minimum bears a burden of production, and he must offer at least some credible evidence showing that his case falls "outside the congressional paradigm" giving rise to the presumption. Id. (quoting United States v. Stone , 608 F.3d 939, 945 (6th Cir. 2010) ).

If the defendant meets his burden of production, the presumption "does not disappear entirely but remains a factor to be considered among those weighed by the district court." Id. (quoting United States v. Mercedes , 254 F.3d 433, 436 (2d Cir. 2001) ). Beyond the presumption, the Bail Reform Act specifies four factors a judicial officer must "take into account" in determining whether any conditions of release "will reasonably assure ... the safety of any other person" and the community: (1) "the nature and circumstances of the offense charged, including whether the offense is a crime of violence, ... or ... involves ... a controlled substance [or] firearm;" (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).

Under 18 U.S.C. § 3145(b), a defendant ordered detained by a magistrate judge may file "a motion for revocation or amendment to the order" with "a court having original jurisdiction over the offense." 18 U.S.C. § 3145(b). Although the D.C. Circuit has yet to opine on the question, substantial precedent supports the view that a magistrate judge's detention order is subject to de novo review by the district court, see United States v. Hunt , 240 F. Supp. 3d 128, 132 (D.D.C. 2017) (identifying cases supporting this proposition from the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits), and this Court has previously followed that course, Taylor , 289 F. Supp. 3d at 66.

Section 3142(i) of the Bail Reform Act "provides a distinct mechanism for temporarily releasing a detained defendant." United States v. Lee , No. 19-cr-298, 451 F.Supp.3d 1, 5–6 (D.D.C. Mar. 30, 2020). Under that provision, a judicial officer may "permit the temporary release of [a] person" to "the custody of a United States marshal or another appropriate person," if the judicial officer determines that pretrial release is "necessary for preparation of the person's defense or for another compelling reason." 18 U.S.C. § 3142(i). "Most courts addressing a motion for temporary release under § 3142(i) have done so in the context of evaluating the necessity of the defendant assisting with preparing his or her defense." United States v. Clark , 2020 WL 1446895, *2, 2020 U.S. Dist. LEXIS 51390, *5–6 (D. Kan. Mar. 25, 2020) (collecting cases). Although the statute also permits temporary release for "another compelling reason," 18 U.S.C. § 3142(i), courts have granted relief on that basis only "sparingly," "typically in order ‘to permit a defendant's release where, for example, he is suffering from a terminal illness or serious injuries,’ " United States v. Davis , 19-cr-292, at 3 (D.D.C. Apr. 6, 2020) (quoting Lee , 451 F.Supp.3d at 5–6 ). Regardless of the basis for a § 3142(i) motion, the defendant bears the burden of demonstrating that his temporary release is warranted. See United States v. Stephens , No. 15-cr-95, 447 F.Supp.3d 63, 65–66 (S.D.N.Y. Mar. 19, 2020) ; United States v. Dupree , 833 F. Supp. 2d 241, 246 (E.D.N.Y. 2011).

B. Pre-Indictment and Detention Hearing

The Court has previously described the background of this case, see United States v. Thomas , No. 17-194, 2019 WL 3859022, at *1–4 (D.D.C. Aug. 15, 2019), and will only briefly summarize that history here. On June 28, 2017, officers from the Metropolitan Police Department ("MPD") "responded to a report of a robbery at a Dunkin Donuts at 4020 Minnesota Avenue, S.E., Washington, D.C." Id. at *1. According to the lead detective on the scene, the store clerk advised, and the video surveillance confirmed, that a suspect entered the store, waited until no customers were present, pulled a bandana over his face, and approached the register. See id. The suspect pulled out a gun, directed the clerk to open the register and to place money in a red bag, and, in doing so, set his cell phone down on the counter. Id. In fleeing the scene, the suspect failed to retrieve the cell phone from the counter. See id.

The MPD recovered the cell phone and, after a forensic analysis of the device, determined that it appeared to belong to "Abe Thomas," id. at *3, which is allegedly an alias used by the defendant. Through further investigation, the MPD located Thomas's residence and later obtained and executed a search warrant, resulting in the seizure of, among other items, a black cap with a Superman "S" on the front, red bags, bandanas, cell phones, and a firearm. Id. ; Dkt. 62-2 at 1, 4; Dkt. 62-3 at 2. As relevant here, the black cap the MPD recovered appears to match the cap the suspect was wearing, as shown in the video surveillance footage from the Dunkin Donuts. See Dkt. 80. Although Thomas previously argued that the affidavit in support of that search was deficient, the Court rejected that contention. Thomas , 2019 WL 3859022, at *3.

On October 17, 2017, Thomas was indicted on one count of Interference with Interstate Commerce by Robbery, in violation of 18 U.S.C. § 1951, and one count of Using, Carrying, and Possessing a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A) ; both charges arose from the alleged June 28, 2017, robbery of a Dunkin Donuts. Dkt. 1. Three days after he was indicted, Thomas was arrested, Dkt. 3, and, on October 25, 2017, Magistrate Judge Robinson conducted a detention hearing pursuant to 18 U.S.C. § 3142, Dkt. 5.

Magistrate Judge Robinson concluded that Thomas was charged with a "very serious" offense—a "gunpoint robbery of [a] Dunkin Donuts"—and that the "weight of evidence against [him] [was] compelling." Dkt. 5 at 5. The government also offered evidence that Thomas "has a lengthy criminal record, including a prior firearm conviction and an escape conviction." Id. at 5. Thomas, in turn, argued that his criminal history was stale, that the government had offered "no witness identification or video evidence," and that Thomas had a verified address and ties to the community. Id. at 4. After considering the parties’ proffers and arguments, Magistrate Judge Robinson concluded that Thomas had failed to rebut the presumption of pretrial detention that applied and that the seriousness of the crime charged and the compelling evidence against him further required that he be detained pending trial. Id. at 5.

C. Subsequent Developments

Since that denial, there have been some further developments in the case. The grand jury has returned two superseding indictments against Thomas. Dkt. 8; Dkt. 83. The first charged Thomas with fourteen counts arising from the robbery of the Dunkin Donuts and from three additional robberies, allegedly occurring on July 2, 4, 8, and 10, 2017. Dkt. 8. The second superseding indictment dropped the charges relating to the additional robberies and includes only two counts—(1) Interference with Interstate Commerce by Robbery, in violation of 18 U.S.C. § 1951, and (2) Using, Carrying, Brandishing, and Possessing a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c)(A)(ii). Dkt. 83. Both counts arise from the June 28, 2017, Dunkin Donuts robbery. Id. In addition, the evidence now shows that the firearm that the MPD recovered and that the government alleges was used in the robbery was inoperable. As the Court has previously observed, the gun "was missing at least three parts: the trigger; the hammer; and the cylinder pin." United States v. Thomas , no. 17-cr-194, 2019 WL 4095569, at *3 (D.D.C. Aug. 29, 2019) (quoting Dkt. 22 at 2–3).

The circumstances in the world have also changed. COVID-19, a highly infectious disease, is causing a once-in-a-century global pandemic, prompting the President and governors across the nation to declare states of emergency. See ...