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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,
v.

Criminal Action No. ll-254-04 (CKK)

DON LAVAE WILLIAMS,

Defendant.

MEMORANDUM OPINION AND ORDER
(September 14, 201 l)

This matter comes before the Court upon Defendant Don Lavae Williams’ ("Williams")
[l6] Motion for De Novo Review of Detention Order, through which Williams asks this Court to
review Magistrate Judge John M. Facciola’s Order authorizing Williams’ detention pending trial
in this criminal action. Upon consideration of the parties’ submissions, the relevant authorities,
and the record as a whole, the Court shall DENY Williams’s Motion.‘ Williams shall remain
detained pending trial.

I. BACKGROUND

A. Procedural Historjy

In the [9] Indictment, Williams is charged with: (l) conspiracy to distribute and possess
with intent to distribute a detectable amount of marijuana in violation of 21 U.S.C. § 841 (a)(l),

(b)(l)(D), which is a violation of 21 U.S.C. § 846, (2) use of a communication facility to

' In rendering its decision, the Court’s attention has focused on the following documents,
listed in chronological order of their filing: Def.’s Mot. and Supporting Mem. for De Novo
Review Order and Request for Expedited Hearing, ECF No. [16]; Gov’t’s Mem. in Opp’n to
Def.’s Bond Review Mot., ECF No. [18]; Def.’s Reply to Gov’t’s Opp’n to Def.’s Mot. and
Supporting Mem. for De Novo Review and Request for Expedited Hearing, ECF No. [19]; Def.’s
Suppl. to Reply to Gov’t’s Opp’n to Mot. and Supporting Mem. for De Novo Review of
Detention Order and Request for Expedited Hearing, ECF No. [20].

facilitate the conspiracy in violation of 18 U.S.C. § 2 and 21 U.S.C. § 843(b), and (3) knowing
use, cariying, or possession of two firearms in connection with a drug trafficking offense in
violation 18 U.S.C. § 924(c)(l). Williams made his initial appearance before Magistrate Judge
Facciola on August 18, 2011. See Min. Entry (Aug. 18, 20l1). A detention hearing was held on
August 24, 201 l, at the conclusion of which Magistrate Judge Facciola ordered that Williams be
detained without bond pending trial. See Min. Entry (Aug. 24, 2011). Magistrate Judge F accio1a
issued a [l4] Detention Memorandum setting forth his written findings of fact and statement of
reasons on August 26, 2011.

B. T he Govemment ’s Proffer

During the Detention Hearing, the Govemment proffered that Defendants Eric A. Moses
("Moses"), Marcus Capanna ("Capanna"), Victor Brown, and Williams conspired to ship
packages of marijuana, usually in one-pound amounts, from Califomia into the District of
Columbia metropolitan area. Capanna was the Califomia-based supplier. Williams was
responsible for providing the addresses for delivery. During the investigation, text messages
from Williams to Moses providing addresses were intercepted. Moses in turn provided those
addresses to Capanna. Shipping labels obtained during the investigation listed addresses
supplied by Williams. Many of the addresses were in the building in which Williams resided.
On more than one occasion, the packages were addressed to fictitious persons using variations of
Williams’ name.

There were at least nine shipments of marijuana from Califomia to the metropolitan area
in an eight-week period in the spring of 201 l. One package containing one pound of marijuana

was seized after it was identified by a drug-sniffing dog. Communications involving Williams,

Moses, and Capanna were intercepted during which they discussed the tracking number for the
package and speculated as to what had happened to the package. On another occasion, a
communication was intercepted during which Williams informed Moses that a shipment had
arrived. Shortly therealter, Moses called Capanna to complain about the quality of the shipment.
The police executed a search warrant on Williams’ residence at the time of his arrest. In
his bedroom, the police found the following: a cooler containing three individually wrapped
plastic bags of marijuana; empty ziplock bags; and a digital pocket scale. ln the closet of that
same bedroom, the police found two loaded handguns, a Spiingfield 9-mm semi-automatic
handgun and a Ravel Model MP .25-caliber semi-automatic handgun, in an unlocked safe. In
other rooms, the police found a heat-sealer; empty heat-seal bags; and two telephones that were
intercepted during the investigation. On his person, Williams had $2,892 in various
denominations. Williams stated to officers, "I messed up having those guns in the house."
II. LEGAL STANDARD
The district court reviews de novo whether there are conditions of release that "will

reasonably assure the appearance of [the defendant] as required and the safety of . . . the
community." 18 U.S.C. § 3142(e)(1). Where there is probable cause to believe that an offense
has been committed under 18 U.S.C. § 924(0), a rebuttable presumption arises that no conditions
or combination of conditions will reasonably assure either the defendant’s appearance or the

safety of the community.z 18 U.S.C. § 3142(e)(3)(B). In asking whether the defendant has

2 The rebuttable presumption arises here because the Indictment alone suffices to provide
probable cause to believe that Williams committed an offense under 18 U.S.C. § 924(c). See
United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) ("[T]he indictment alone would
have been enough to raise the rebuttable presumption that no condition would reasonably assure
the safety of the community."); United States v. Carter, __ F. Supp. 2d _, 2011 WL 3563088, at

3

rebutted this presumption, the district court examines the following:

(l)

(2)
(3)

(4)

18 U.s.c. § 3i42(g).

Upon conducting a de novo review of the record and alier considering the relevant

detention factors, the Court determines that Williams should remain detained pending trial. Tlie

the nature and circumstances of the offense charged,
including whether the offense is a crime of violence, a
violation of section 1591, a Federal crime of terrorism, or
involves a minor victim or a controlled substance, firearm,
explosive, or destructive device;

the weight of the evidence against the person;

the history and characteristics of the person, including~

(A)

(B)

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

whether, at the time of the current offense or arrest,
the person was on probation, on parole, or on other
release pending trial, sentencing, appeal, or
completion of sentence for an offense under Federa1,
State, or local law; and

the nature and seriousness of the danger to any person or the
community that would be posed by the person's release.

III. DISCUSSION

Court shall address each factor in tum.

*2 (D.D.C. Aug. 15, 2011) ("[T]he court may rely on a grand jury indictment to establish
probable cause for the purposes of triggering the rebuttable presumption of section 3142(e).")

(intemal quotation marks and citation omitted).

A. T he Nature and Seriousness of the Offense Charged
There is and can be no dispute that Williams is charged with a crime involving a

controlled substance and a crime involving a firearrn. 18 U.S.C. § 3142(g)(1). Williams is
charged with conspiring to import significant amounts of marijuana, usually in one-pound
shipments, into the metropolitan area. He is also charged with using, carrying, or possessing a
firearm in connection with a drug trafficking offense. Because these are serious charges, the
Court finds that the first detention factor weighs in favor of Williams’ continued detention.

B. T he Weight of the Evidence

The Indictment alone is sufficient to provide probable cause to believe that Williams
committed the offenses with which he is charged. See Smith, 79 F.3d at 1210; Carter, 2011 WL
3563 088, at *2. Furthermore, as observed by Magistrate Judge Facciola, "the combination of the
wiretaps and the evidence pertaining to [the drugs’] shipment, including the shipments to the
very home in which defendant resides[,] makes for a strong govemment case." Detention Mem.
at 5. intercepted communications implicate Williams in the shipment of the drugs and, in
executing a search warrant on Williams’ residence, the police uncovered items incidental to drug
trafficking and distribution, including individually wrapped plastic bags of marijuana, empty
ziplock bags, a digital pocket scale, a heat-sealer, empty heat-seal bags, and two telephones that
were intercepted during the investigation. This is strong evidence that Williams was engaged in
a conspiracy to distribute and possess with intent to distribute a detectable amount of marijuana
and that he used a communication facility to facilitate the conspiracy.

The Govemment’s case in connection with the charge of using, carrying, or possessing

firearms in connection with a drug trafficking offense is perhaps less strong, but the evidence

nonetheless tends to show that Williams committed the offense. In executing a search warrant on
Williams’ residence, the police found two semi-automatic handguns in an unlocked safe in the
bedroom of the residence. In the very same room, the police found items incidental to drug
distribution and trafficking, including individually wrapped plastic bags of marijuana, empty
ziplock bags, and a digital pocket scale.3 In connection with this Motion, Williams has not
disputed that the guns are his; regardless, the evidence indicates that, at the time of his arrest, he
stated "I messed up having those guns in the house."

Taking into account the nature of the drug activity conducted, the nature of handguns,
their accessibility, their relative proximity to drugs and items incidental to drug distribution and
trafficking, and the fact that they were loaded, the Court finds that the Govemment has pointed to
significant evidence tending to suggest that Williams used, carried, or possessed firearms in
connection with a drug trafficking offense. See United States v. Wahl, 290 F.3d 370, 376 (D.C.
Cir. 2002) (identifying the relevant factors). True, the Govemment could have strengthened its
case by proffering evidence suggesting that Williams’ possession of the firearm was illegal or
describing in greater detail the proximity and accessibility of the firearms in relation to the drugs
and items incidental to drug distribution and trafficking in the bedroom (e.g. , showing that the
closet door was open). But the weight of the evidence nonetheless tends to support the charge.
Cf id. at 376-77 (firearm was found in defendant’s bedroom in close proximity to drugs and

drug-related items); United States v. Gaston, 357 F.3d 77, 82-83 (D.C. Cir.) (firearm was found

3 Williams’ counsel mistakenly interprets the Govemment’s submissions as stating that
the handguns were recovered from another room and not near any drugs or drug paraphemalia.
Counsel has misread the Govemment’s submissions, which unambiguously proffer that the
police found the handguns in the closet of the same bedroom where drugs and drug-related items
were located.

in defendant’s bedroom in close proximity to drugs and drug-related items), cert. denied, 541
U.S. 1091 (2004); United States v. Kelly, 552 F.3d 824, 833 (D.C. Cir. 2009) (illegal firearm
found within twenty feet of drugs and drug-related items).

Considering the Govemment’s proffer as a whole, the Court finds that the second
detention factor weighs in favor of Williams’ continued detention.

C. T he Historjy and Characteristics of Williams

On the one hand, there is no dispute that Williams has family and community ties in the
metropolitan area, where his mother, sister, and young child all live and where he has long
resided, that Williams is gainfully employed, and that there is no indication that he has a special
physical or mental condition or a history of drug abuse. On the other hand, there is no dispute
that Williains has a prior conviction on a misdemeanor threats charge and has pending charges
for possession of marijuana and driving under the influence in Maryland and the District of
Columbia, respectively. Considering the record a whole, the Court concludes that the third
detention factor neither weighs in favor nor against Williams’ continued detention.

D. T he Nature and Seriousness of the Danger to the Communz'ty

The focus of Williams’ Motion is his contention that Magistrate Judge Facciola did not
take into account or allocate sufficient weight to the fact that his prior history with the judicial
system reveals no Bail Reform Act violations, missed court appearances, or escape charges, In
particular, Williams emphasizes that he voluntarily retumed to the District of Columbia Jail upon
the advice of his counsel after he was released in error. The Court has taken these matters into
account in rendering its decision today. However, these matters are relevant primarily insofar as

they relate to Williams’ risk of flight, which plainly was not a focus of Magistrate Judge

Facciola’s and is not, in any event, this Court’s primary concem. Rather, after considering the
totality of the evidence, the Court finds that Williams has failed to rebut the presumption of
dangerousness applicable in this case. The scale of the alleged conspiracy tends to indicate that
Williams is part of an operation that poses a serious danger to the community, and that he
personally used, carried, or possessed loaded semi-automatic handguns in connection with a drug
trafficking offense. Furtherrnore, as Magistrate Judge Facciola noted, Williams "was on pre-trial
release in two cases in two different jurisdictions" at the time. Detention Mem. at 6.
Considering the record as a whole, the Court concludes that the fourth detention factor weighs in
favor of Williams’ continued detention.
IV. CONCLUSION

Upon consideration of the totality of the evidence, the factors set forth in 18 U.S.C. §
3142(g), and the possible release conditions set forth in 18 U.S.C. § 3142(c), the Court finds
clear and convincing evidence that Williams’ pretrial release constitutes an unreasonable danger
to the community and that no condition or combination of conditions can be imposed that would
reasonably assure the safety of the community were he to be released pending trial. Williams has
failed to rebut the presumption in favor of pretrial detention under 18 U.S.C. § 3142(e)(3)(B).
Therefore, and for the reasons stated above, it is, this 14th day of September, 2011, hereby

ORDERED that Williains’ [16] Motion for De Novo Review of Detention Order is
DENIED and Wi1liarns shall remain detained pursuant to 18 U.S.C. § 3142(e); it is further

ORDERED that Williams shall be committed to the custody of the Attomey General for
confinement in a corrections facility separate, to the extent practicable, from persons awaiting or

serving sentences or being held in custody pending appeal; it is further

ORDERED that Williams shall be afforded reasonable opportunity for private
consultation with counsel; and it is further

ORDERED that upon order of a court of the United States or on request of an attomey
for the Govemment, the person in charge of the corrections facility in which Williams is

confined shall deliver him to a United States Marshal for the purpose of an appearance in

COLLEEN KOLiiAR-KOT §LL §

United States District Judge

connection with a court proceeding.

SO ORDERED.

