                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          )
UNITED STATES OF AMERICA                  )
                                          )
                                          )
            v.                            )                 Criminal No. 13-231-1 (ESH)
                                          )
HERMAN CURTIS MALONE,                     )
                                          )
                        Defendant.        )
__________________________________________)

                         MEMORANDUM OPINION AND ORDER

       Defendant Herman Curtis Malone, along with others, has been charged with conspiracy

to distribute and possession with intent to distribute one hundred grams or more of heroin and

five hundred grams or more of cocaine in violation of 21 U.S.C. § 846, a crime punishable by a

minimum of ten years imprisonment. See 21 U.S.C. § 841. The government requested a

detention hearing which was held by Magistrate Judge Kay on August 14, 2013. (See Detention

Memorandum (“Det. Mem.”) at 1, Aug. 16, 2013 [ECF No. 6].) At the conclusion of the

hearing, Magistrate Judge Kay held the defendant pending trial pursuant to 18 U.S.C. § 3142.

(See id. at 4.) Malone thereafter filed a motion to appeal Magistrate Judge Kay’s detention order

under 18 U.S.C. § 3145(b), which the government opposed. (Appeal from Order of Detention

(“Appeal”), Aug. 18, 2013 [ECF No. 8]; Memorandum in Opposition (“Opp.”), Aug. 30, 2013

[ECF No. 20].) Malone then filed twelve letters from members of the community in support of

his appeal. (Supplemental Letters (“Supp. Letters”), Sept. 12, 2013 [ECF No. 30].)

       The Court held a hearing on the motion on September 20, 2013. Following that hearing,

the Court requested further briefing and argument. Mr. Malone’s counsel filed a Supplemental

Submission in Support of his Motion to Vacate (“Supp. Mot.”), Oct. 3, 2013 [ECF No. 33], and
the government filed a Supplemental Memorandum in Opposition (“Supp. Opp.”), Oct. 7, 2013

[ECF No. 37]. The Court heard further argument on October 9, 2013. For the reasons stated in

open court, as well as for the reasons set forth herein, the Court will deny this motion.

                                           DISCUSSION

       Under the Bail Reform Act, 18 U.S.C. § 3141 et seq., a judicial officer “shall order” a

defendant’s detention before trial 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.” Id. § 3142(e). The judicial officer

considering the propriety of pretrial detention must consider four factors:

               (1) [t]he nature and circumstances of the offense charged,
               including whether the offense . . . involves . . . a controlled
               substance, [or] firearm;

                (2) the weight of evidence against the person;

                (3) the history and characteristics of the person, including . . . 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

                (4) the nature and seriousness of the danger to any person or the
               community that would be posed by the person’s release.

Id. § 3142(g). The government is required to demonstrate the appropriateness of pretrial

detention by clear and convincing evidence. See id. § 3142(f). However, when “there is

probable cause to believe that the [defendant] 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.),” there is a rebuttable presumption that “no condition or combination of conditions

will reasonably assure the appearance of the [defendant] as required and the safety of the

community.” Id. § 3142(e). Considering each factor below, the Court agrees with the

                                                   2
Magistrate Judge that the government has met its burden and that defendant Malone has failed to

rebut the presumption against pretrial detention.

        First, the nature and circumstances of the offense favor continued detention. The grand

jury found that there is probable cause to believe that Mr. Malone was a member of a conspiracy

to distribute and possession with intent to distribute cocaine and heroin, in violation of the

Controlled Substance Act, which is punishable by ten years to life. See 21 U.S.C. §§ 841, 846.

The government proffered that Mr. Malone was not just a part of this conspiracy, but was a

principal by virtue of his role as a large-scale narcotics supplier.

        The evidence also shows that large quantities of drugs and guns were involved in this

conspiracy. (Det. Mem. at 3; Supp. Opp. at 5-6.) For instance, a kilogram of cocaine, one

hundred grams of heroin, a loaded, .40 caliber semi-automatic handgun, additional .40 caliber

ammunition, and three digital scales (a tool regularly used in the narcotics trade) were found in

Mr. Malone’s Maryland home. 1 (Det. Mem. at 2.) The problematic nature and circumstances of

the offense are further magnified by the fact that Mr. Malone works with children and youth in

the community through his basketball program (Assault DC), but it appears that Mr. Malone

permitted co-defendant Stephen Williams to bring his minor child to a drug transaction. (Id.)

        Second, the weight of the evidence strongly favors continued detention. On June 4, 2013,

co-defendant and co-conspirator Derico Williams was found with a compressed brick of cocaine

less than one hour after he stopped at Mr. Malone’s home. (See Supp. Opp. 10-13.) On August

9, 2013, law enforcement stopped Mr. Stephen Williams, a second co-defendant and alleged co-

conspirator, after leaving Mr. Malone’s home with a black bag. (Det. Mem. at 2) The black bag

contained one kilogram of cocaine wrapped in green cellophane. (Id.) That same night, law
1
 In addition to the items found in Mr. Malone’s home, weapons were found in an apartment frequented
by co-defendant Stephen Williams (see Opp. at 4, n.2) and the vehicle of co-defendant Bidgell (see Supp.
Opp. at 6.), which further illustrates the violent nature of the conspiracy.
                                                    3
enforcement executed a search warrant at Malone’s residence where they found an identically

wrapped kilogram of cocaine, additional narcotics, a loaded handgun, and additional tools of the

narcotics trade. (Id.)

       The government’s proffer illustrates that these were not isolated incidents. On the

contrary, cooperating sources indicate that Mr. Malone supplied large quantities of cocaine

dating back to 2009. (Supp. Opp. at 7.) There is also evidence that Mr. Malone supplied drugs

to co-defendant and alleged co-conspirator Micah Bidgell whose car was found with additional

weapons. (Id. at 6-10.) Finally, the government has proffered that it has extensive wiretaps

confirming Malone’s participation in narcotics activities. (See id. at 14-16.)

       Third, defendant represents a potential danger to the community and therefore continued

detention is appropriate. Malone has been indicted as a member of a large-scale narcotics

conspiracy, which constitutes a serious threat to the community. (Det. Mem. at 4.) The Court

agrees with Magistrate Judge Kay that “given the daily violence and shooting that occurs in the

District of Columbia as a result of drug trafficking, the combination of sufficient quantities of

drugs to engage in large-scale sales and the presence of a weapon and ammunition at []his home

is sufficient to find that Defendant Malone poses a danger to the community.” (Id.) In addition

to Mr. Malone’s role as a supplier of narcotics who illegally possessed a weapon, Mr. Malone’s

surveillance consciousness further renders him a continuing potential danger to the community

absent incarceration. (See Supp. Opp. at 16-20.) The government proffers that “Malone’s

surveillance consciousness was evident throughout the DEA’s investigation,” and Mr. Malone

was able to hide his narcotics activities from his own family. (Id. at 17.)

       Fourth, while defendant’s history and characteristics do not favor his continued

detention, they are not sufficient to rebut the statutory presumption. Mr. Malone was convicted



                                                  4
of possession of cocaine with intent to distribute in 1994. (Det. Mem. at 2.) Yet, since that time

Mr. Malone has built a strong reputation in the community. This is demonstrated by regular

presence of Mr. Malone’s supporters in the courtroom, as well as the letters submitted to the

Court describing the enormous impact that Mr. Malone and his DC Assault basketball program

has had on underprivileged youth in Washington, D.C. (See Supp. Letters.) Despite Mr.

Malone’s work, however, the government has shown more than sufficient evidence that Mr.

Malone led a duplicitous existence. His good works and recognition in the community are

simply insufficient to rebut the statutory presumption and the overwhelming nature of the other

factors that the Court must consider.

        Finally, the Court should note that it carefully considered Mr. Malone’s request for an

alternative to continued incarceration. Specifically, Mr. Malone presented the Court with the

option of house arrest with 24/7 digital surveillance provided by a private company. (See

generally Supp. Mot.) However, the Court is hesitant to permit Mr. Malone—a defendant of

means—the opportunity to avoid continued incarceration simply because he is able to pay a

private company to do so. 2 Moreover, because Mr. Malone conducted many of his alleged

narcotics deals from his home and apparently evaded detection by his own family members, the

Court finds the alternative arrangement proposed by Mr. Malone to be inadequate.

        Therefore, for the foregoing reasons, defendant’s motion for reversal of the Magistrate

Judge’s order of detention is hereby DENIED, and in accordance with 18 U.S.C. § 3142(i), the

Court ORDERS that defendant remain in the custody of the Attorney General for confinement in

a corrections facility pending trial.

        SO ORDERED.


2
 Ms. Trena Brown of Alternative Sentencing Inc. attended the October 9, 2013 hearing and informed the
Court that her private monitoring service would cost between $300-$450 per month.
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                                         /s/
                             ELLEN SEGAL HUVELLE
                             United States District Judge
DATE: October 10, 2013




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