                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
__________________________________
                                   )
UNITED STATES OF AMERICA,          )
                                   )
      v.                           )
                                   )    Criminal Action No. 16-cr-224 (RMC)
GADDY LITTLE (1),                  )
                                   )
            Defendant.             )
_________________________________  )

                        MEMORANDUM OPINION ON DETENTION

               Defendant Gaddy Little faces drug and gun charges in this Court. See Indictment

[Dkt. 1]. He was arrested on Wednesday, January 11, 2017, and appeared for his initial hearing

before Magistrate Judge Deborah Robinson on Thursday, January 12, 2017. At that time, the

government orally moved to have Mr. Little held without bond, which motion the Judge

temporarily granted, pending a detention hearing to be held on Friday, January 13, 2017. At the

conclusion of the detention hearing, Magistrate Judge Robinson ordered Mr. Little released on

the condition of home confinement with limited exceptions and without location monitoring.

The Government filed a motion for an emergency stay and for review and appeal of the release

order, Mot. for Emergency Stay [Dkt. 6], on Friday afternoon, which this Court granted. See

1/13/17 Minute Order. A hearing on bond review was held at the soonest possible date

(Wednesday, January 18, 2017), at which time this Court ordered Mr. Little’s detention pending

trial pursuant to 18 U.S.C. § 3142. Section 3142(e) allows a court to hold a defendant pending

trial, but a judicial officer entering a detention order must “include written findings of fact and a

written statement of the reasons for the detention.” 18 U.S.C. § 3142(i)(1). This memorandum

opinion makes those findings and explains the reasons for Mr. Little’s detention.




                                                  1
                                      I. BACKGROUND

               During the hearing on January 18, 2017, the Government presented an oral proffer

that summarized and expanded on its arguments to detain Mr. Little, as previously presented in

its written Motion for Emergency Stay. With the exception of the quantity of PCP charged, these

facts were not seriously disputed by Mr. Little:

   1. Mr. Little was indicted on December 8, 2016, with one count of Possession with the
      Intent to Distribute Phencyclidine (PCP) in violation of 21 U.S.C. §§ 844(a)(1) and
      841(b)(1)(B)(iv); one count of Possession with the Intent to Distribute Cocaine Base, also
      known as “crack,” in violation of 21 U.S.C. §§ 844(a)(1) and 841(b)(1)(C); one count of
      Unlawful Possession of a Firearm and Ammunition, in violation of 18 U.S.C.
      § 922(g)(1); and one count of Possessing a Firearm During or in Furtherance of a Drug
      Trafficking Offense, in violation of 18 U.S.C. § 924(c).

   2. As indicated above, Mr. Little was not arrested for the indicted crimes until January 11,
      2017.

   3. Three months earlier, on October 11, 2016, at approximately 1:17 p.m., Mr. Little was
      driving on Suitland Parkway in Maryland with his co-defendant Tiffany Mack and their
      two children, a 7-month-old and a three-year-old. Mr. Little drove the car over the
      concrete median into oncoming traffic and struck a pickup truck head on. The truck
      flipped multiple times. Emergency personnel transported the truck driver, Mr. Little, and
      the two children to the hospital. The driver of the truck later died. Mr. Little suffered a
      broken leg, broken pelvis, and broken ribs.

   4. United States Park Police officers investigating the crash scene recovered a plastic bag
      containing a Newport cigarette pack on the ground directly outside and below Mr. Little’s
      seat as driver of the car. The officers report that it contained a one-ounce vial that was
      1/3 full of PCP and two plastic bags that contained 10.5 grams of crack. In addition, the
      vehicle contained numerous packs of Newport cigarettes and some purple latex gloves.

   5. Eight days later, on October 19, 2016, the Park Police officers executed a search warrant
      at the residence where Mr. Little and Ms. Mack live. Mr. Little was out of the hospital
      and present, but recumbent on a mattress on the floor in front of the living room couch;
      his injuries prevented him from rising. During the search, the officers looked under the
      cushions of the couch and, from under the cushion nearest Mr. Little’s head, retrieved a
      Taurus .45 caliber pistol, loaded with nine rounds and wrapped in a purple latex glove.
      Mr. Little spontaneously said, “if it’s a .45, it’s mine.” Also located on the sofa was a
      plastic bag containing $504 in cash.

   6. From various locations in the kitchen, the officers seized:



                                                   2
             a. Twenty-one (21) vials appearing to contain some amount of PCP, several empty
                glass vials, and numerous pink empty zip lock baggies;

             b. Crack in the amount of 6.4 grams, a 3-ounce vial that appeared to be PCP, more
                than 20 empty glass vials, and boxes of purple latex gloves;

             c. An extended magazine for a Glock .40 caliber pistol, 140 rounds of .40 caliber
                ammunition, a box of .45 caliber ammunition, .38 caliber ammunition, and mail
                matter in Mr. Little’s name;

             d. Eighteen (18) empty glass vials, numerous unused pink zip lock bags, an eye
                dropper, latex gloves, and razor blades; and

             e. A Taurus .45 caliber magazine loaded with 10 rounds of ammunition.

      7. Mr. Little waived his Miranda1 rights and told the officers that he had purchased the
         Taurus .45 caliber gun approximately two-and-one-half weeks earlier for protection. He
         also stated that the vials in the kitchen were his but did not contain much PCP.

      8. Mr. Little has eight prior convictions, four of which are narcotics offenses and one of
         which is a firearms offense. (He is also charged in U.S. District Court in Maryland for
         alleged crimes arising out of the search of his vehicle after the car crash.) Most recently,
         he was convicted on April 8, 2016 in case 2014-CF2-18508 for Possession of Liquid
         PCP, and was on probation at the time of the instant alleged offenses. Previously, he was
         convicted of Possession of Liquid PCP and Possession of Marijuana in case 2010-CF2-
         23032; these offenses were committed while he was on release for another matter. Mr.
         Little was also convicted of Attempted Possession with Intent to Distribute PCP in case
         2010-CF2-14208. In 1997, he was convicted for carrying a firearm in case CA-970754J
         in Prince George’s County.

      9. Following the search, the Park Police completed a search return form, indicating what
         was found at the residence. The items identified in the search return were entered on a
         Park Police computer, which offered a drop-down box of items among which to select.
         That search return identifies all the PCP-related materials (vials, liquids, etc.) as “drug
         paraphernalia.” Since the detention hearing before Judge Robinson, the officers
         conducting the search and entering the information have separately informed the
         Assistant United States Attorney, and she proffered, that this was an entry error and that
         the officers—members of the United States Park Police—identified the liquid substances
         as PCP, not paraphernalia, from its familiar odor. Park Police do not carry kits in their
         vehicles to field test for PCP.

                 In addition to its proffered facts, as identified above, the Government argued that

Mr. Little is a repeat drug offender, poses a significant risk of pre-trial recidivism, and stored his


1
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                                   3
gun, ammunition, and PCP in places within the residence which were readily accessible to his

three-year-old child. The Government also argued that he remains a danger to the community

and that his injuries from the crash (which appear to limit his mobility to a wheel chair) do not

mean that he cannot sell drugs from his residence.

               Mr. Little argued for release pending trial and offered three reasons to support a

finding that he was not a danger to the community or a flight risk. First, Mr. Little argued that

the seriousness of the offense was exaggerated because although the indictment charged 100

grams or more of PCP, the officers who recovered the items only categorized them as “drug

paraphernalia,” not actual drugs, which constitutes a lesser offense. Second, Mr. Little

challenged the Government’s belief that he was a flight risk or a danger by highlighting the

amount of time that passed from the original accident and search warrant to the indictment and

then from the indictment to his eventual arrest. Mr. Little argued that if the Government actually

believed he was a danger to the community or flight risk, they wouldn’t have waited 6 weeks

after the indictment to arrest him. Finally, Mr. Little argued that the willingness of the

Government to release Ms. Tiffany Mack, his co-defendant and girlfriend, who also lives in the

home where the gun and PCP were found, should weigh in favor of his release as well.

               The Court queried the parties about the Magistrate Judge’s ruling; inasmuch as

Judge Robinson did not order Mr. Little detained, she had no need to prepare a detention

memorandum and the time between Friday, January 13, 2017 and Wednesday, January 18, 2017

had not allowed for the preparation of a transcript (Monday, January 16 was a federal holiday in

recognition of Martin Luther King Jr.).

               The Government explained that the Magistrate Judge had relied on Mr. Little’s

medical condition, as he recovers from his broken bones, and so ordered him to be confined to



                                                 4
his home. Further, Judge Robinson doubted the presence and amount of PCP charged in the

Indictment because there was no field test to confirm that the liquid was PCP and some vials

were clear while others were not. Defense counsel quoted the Magistrate Judge as finding “scant

evidence” that it was PCP in Mr. Little’s home because a photo of many of the vials showed a

clear liquid in most while others had some hue. The Magistrate Judge also credited defense

counsel’s arguments that Mr. Little arguably said there was “no PCP” in his kitchen, not that it

was his; and that the seizing officer reported the vials as PCP paraphernalia and not the drug

itself. Further, the Magistrate Judge may have been persuaded by defense counsel’s arguments

(1) that the Government had agreed to the almost-immediate release of co-defendant Ms. Mack;

(2) that it was unduly slow to indict Mr. Little and slow to arrest him, so it must not have

considered him much of a threat to the community; and (3) that, despite the passage of time,

there had been no test of the seized liquid by the Drug Enforcement Administration (DEA) to

prove that it was PCP.

                Before this Court, the Government proffered that both the seizing and arresting

officers had separately explained that the choice of “paraphernalia” on their report was entered in

error in usage of the computer program’s drop-down box and that each of them clearly smelled

PCP in the vials; that, unlike Mr. Little, co-defendant Mack has a prior history of only one

Driving Under the Influence (DUI) conviction, which made her eligible for release; and that the

timing of the Indictment and arrest are irrelevant to the question of detention. The Government

vigorously contested Defendant’s attack on the charged quantity of PCP. Neither lawyer

contested the seizure of crack cocaine or related drug paraphernalia (small zip-lock bags, razor

blade, plastic gloves, etc.).




                                                 5
                                   II. LEGAL STANDARD

               As stated above, Magistrate Judge Robinson ordered Mr. Little released at the end

of his detention hearing. Relying on 18 U.S.C. § 3145(a), the Government appealed to this Court

to stay and review that order. Section 3145(a) states:

               Review of a release order.—If a person is ordered released by a
               magistrate judge, . . .

               (1) the attorney for the Government may file, with the court having
                   original jurisdiction over the offense, a motion for revocation of
                   the order or amendment of the conditions of release . . . .

               The motion shall be determined promptly.

Id. On such a motion, the court considers de novo the question of pre-trial detention, by taking

evidence, recalling witnesses or reviewing transcripts, or proceeding through proffer and

argument at its discretion. See Unites States v. Sheffield, 799 F. Supp. 2d 18, 19-20 (D.D.C.

2011). New arguments may also be raised by the parties. The Court uses the tests and standards

set forth in the Bail Reform Act, 18 U.S.C. § 3142, to determine whether a defendant should be

released or detained pending trial. The Bail Reform Act begins by presuming that release with

some set of conditions will ensure a defendant’s appearance at trial and protect the community.

However, in some situations the Court is required to presume that a defendant should be

detained. Section 3142(e)(3) states that

               Subject to rebuttal by the person, 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—

               (A) 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.), the Controlled Substances Import and
                   Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.



                                                 6
18 U.S.C. § 3142(e)(3).2 The Court “may rely on a grand jury indictment to establish probable

cause for the purposes of triggering the rebuttable presumption of section 3142(e).” United

States v. Williams, 903 F.2d 844, 844 (D.C. Cir. 1990) (per curium) (unpublished); see also

United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996).

               Despite the presumption, the Court “must evaluate the weight of the evidence

against each defendant seeking reconsideration of the detention orders and pretrial release to

determine whether detention is proper.” United States v. Muschetta, 118 F. Supp. 3d 340, 344

(D.D.C. 2015) (citing 18 U.S.C. § 3142(g)(2)). The Bail Reform Act instructs the Court to

consider the following four factors when determining if detention is appropriate:

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

               (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.

18 U.S.C. § 3142(g).

                                         III. ANALYSIS

               The Court ordered that Mr. Little be detained pending trial.

               First, the Court was persuaded by its own knowledge of the attributes of PCP,

including its smell, and the use in PCP street sales of one-half or ounce vials as were seized,


2
 Mr. Little was indicted by a Grand Jury on violations of the Controlled Substances Act which
carry a maximum term of imprisonment of ten years or more.

                                                 7
many containing some amount of smelly liquid. The Court finds no reason to challenge the

proffer that the Park Police determined, based on the look and smell of the liquid in the vials, that

they contained some amount of PCP. The Court was also persuaded by the seizure of multiple

packs of Newport cigarettes,3 plastic gloves, other drug paraphernalia, and a gun from Mr.

Little’s residence. In addition, the money in the residence, Mr. Little’s three prior drug

convictions involving PCP possession and/or possession with intent to distribute, and his status

on probation and supervision at the time of this and prior crimes, lend probable cause to the

immediate charges and his on-going danger to the community.

               As a result of these findings, this Court was not persuaded that there was “scant

evidence” of the presence of PCP in Mr. Little’s residence as found by the Magistrate Judge.

Defense counsel’s challenge to the charged amount of PCP is not convincing for the reasons

articulated above. While it is possible that tests by the DEA, now ordered, will confirm a lesser

amount of PCP seized from Mr. Little’s residence,4 counsel’s arguments are insufficient to

challenge his detention because of the nature of the drug, its odor, how it is sold, the uncontested




3
  In the District of Columbia at least, PCP is most often sold by “fracking” a filtered cigarette
(meaning to rub it between two hands to dislodge tobacco from the end that is normally lighted,
making room for PCP); dipping the cigarette into a small ounce or half-ounce vial of PCP and
then inhaling to draw the PCP through the cigarette; and selling the “dipper” for a per-cigarette
price on the street. Newport cigarettes, which contain menthol, are favored for this purpose. See
United States v. Wilson, 605 F.3d 985, 998 (D.C. Cir. 2010); see also United States v. Castle, 53
F. Supp. 95, 99 (D.D.C. 2014).
4
  The lack of DEA confirming tests that the liquid in all of the vials was PCP does not, on this
record, undercut the officers’ proffered statements that they smelled PCP in the liquid, the Grand
Jury’s finding of probable cause, or this Court’s de novo finding that Mr. Little should be
detained pending trial.

                                                 8
evidence seized, Mr. Little’s statements, and his client’s (very recent) criminal history.5 The

Court found that the Grand Jury’s decision to indict and the proffered evidence provided

probable cause that Mr. Little committed the charged offense and, therefore, to justify release,

Mr. Little must rebut the presumption that no set of conditions could reasonably assure his

presence at trial or protect the public.

                The Court considered the nature and characteristics of the offense and found that

because the offense involves the possession with intent to distribute large quantities of PCP, that

factor weighed in favor of detention. Additionally, after considering the proffer of evidence by

the government, the Court found the weight of the evidence, that Mr. Little admitted that the gun

found in the residence was his, and the amount of drugs and drug paraphernalia found in the

residence, also weighed in favor of detention. The history and characteristics of the Defendant

also weighed in favor of detention. Mr. Little has multiple prior convictions for narcotics

convictions involving PCP and a prior conviction for a firearm offense. Mr. Little also has a

history of reoffending while on probation or supervised release for other offenses. The Court,

therefore, found that the first three factors weighed in favor of detention.

                Defense counsel’s arguments focused on the final factor, the potential danger to

the community should Mr. Little be released, and the risk of flight. Counsel argued that the

quick release of co-defendant Ms. Mack, who is charged with the same crimes, demonstrates that

the government had no belief that Ms. Mack would flee and no basis to believe that Mr. Little,

especially in his injured condition, would flee. More critically, perhaps, defense counsel


5
 During the January 18, 2017 hearing, the Court asked defense counsel whether a judicial
official is free to reject probable cause (or the findings of fact on which it was based) found by a
Grand Jury when deciding whether to release or detain a defendant. That issue is moot in light
of the government’s proffered facts and legal conclusions made here.

                                                  9
attacked the government’s delay, between the October 11, 2016 head-on collision in Maryland

and the December 7, 2016 return of an indictment in D.C. Indeed, after obtaining the Indictment

on December 7, the government delayed until January 11, 2017 to arrest the Defendant. These

delays, according to defense counsel, demonstrate that the government recognizes that Mr. Little

is not a flight risk; that he did not leave his house after the search date of October 18, 2016

(except for court appearances) and is not a danger to the community; and that he can, therefore,

be released to home confinement.

               The Court concluded that Mr. Little’s injuries supported a finding that he was not

a risk of flight but does not diminish the potential danger to the community through continued

dealing of PCP from his home. The Court did not draw any conclusions from the delay in

indicting or arresting Mr. Little. The Government is permitted to make its own determinations

on when to indict a defendant and without evidence of abuse or some facts to support that the

delay was due to a lack of danger, the delay does not affect the detention analysis. Similarly, the

Court, without other facts or evidence, will not conclude that the time between Indictment and

arrest demonstrates Mr. Little is not a danger to the community.

               Mr. Little’s access to PCP and crack is demonstrated by his criminal history and

the drugs seized from his car and home. Not only was a Taurus .45 caliber gun found under the

couch cushion directly next to Mr. Little, but ammunition for that gun and numerous other guns

was retrieved from his residence, indicating possible use of or access to other weapons. The

money seized during the search also supports a finding of drug dealing and community danger.

See United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013) (noting that evidence of large

amounts of cash, drugs, and previous arrests establishes probable cause to believe the defendant

was dealing drugs). It is not improbable that lying on a mattress in his living room, gun at the



                                                 10
ready, Mr. Little could have been able to continue his drug business. Therefore, the Court found

that even home detention—ordered by the Magistrate Judge—would present a serious risk to the

safety of the community.

               After considering the nature and circumstances of the offense, the weight of the

evidence against Mr. Little, the history and characteristics of Mr. Little, and the nature and

seriousness of the danger to the community if Mr. Little were released, the Court found that Mr.

Little failed to rebut the presumption of detention and that Mr. Little’s prior record of continuing

crime while on probation or release also supported detention.

                                       IV. CONCLUSION

               For the reasons stated in open Court on January 18, 2017, and in the above

opinion, the Court reversed the Magistrate Judge’s decision to release Mr. Little, found him a

danger to the community, and ordered him detained pending trial.



Date: January 30, 2017                                               /s/
                                                      ROSEMARY M. COLLYER
                                                      United States District Judge




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